In Re Benton , 26 N.C. App. 294 ( 1975 )

215 S.E.2d 792 (1975) 26 N.C. App. 294

In the Matter of Julia A. BENTON.

No. 7512DC273.

Court of Appeals of North Carolina.

June 18, 1975.

Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. Parks H. Icenhour, Raleigh, for the State.

Mary Ann Tally, Asst. Public Defender, Twelfth Judicial District, Fayetteville, for respondent appellant.

ARNOLD, Judge.

While it is clear from the record that the commitment period of sixty days has expired, this appeal is not moot. In re Carter, 25 N.C.App. 442, 213 S.E.2d 409 (1975), and In re Mostella, 215 S.E.2d 790 (N.C.App.1975).

Defendant contends and the State concedes that the trial court erred in admitting the affidavit of Dr. Pellegrini, the examining psychiatrist. We agree. Dr. Pellegrini was a witness for purposes of the proceeding. See Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860 (1957). G.S. § 122-58.7(e) provides that "[c]ertified copies of reports and findings of qualified physicians and medical records of the mental health facility are admissible in evidence, but the respondent's right to confront and cross-examine witnesses shall not be denied." The statute could hardly be more explicit in preserving respondent's right of confrontation.

The order appealed from states, "That the court finds as fact that the testimony of the petitioner and corroborating witnesses clearly shows that the mental instability of the respondent which evidence is the basis for the court's order for further treatment; that the affidavit of the doctor in their [sic] diagnosis supported the evidence of the petitioner. However, the basis for the court's findings relied on the petitioner [sic] and other witnesses' testimony rather than the affidavits signed by the doctors."

Notwithstanding the judge's statement to the contrary, it is obvious that Dr. Pellegrini's affidavit forms the basis of the order. It further states, "That the respondent was examined by a qualified physician on the 18th day of February, 1975, at the VA Hospital at Salisbury, North Carolina; that his recommendation is that she is mentally ill or inebriate. That his further recommendation or diagnosis is that Miss Benton is dangerous to herself only in that her illness negates her ability to meet her personal needs. . . . That the Court agrees and concurs with that recommendation." No evidence, except for the affidavit, was adduced to show that the respondent was imminently dangerous to herself or others.

From a reading of the involuntary commitment statutes we do not infer that an order of commitment may issue only when supported by competent medical evidence. G.S. § 122-58.7(i), however, does require that there be "clear, cogent and convincing evidence" to support the finding of two facts: first, that the respondent is mentally ill or inebriate, and, second, that the respondent is imminently dangerous to himself or others. See In re Carter, supra. Aside from the affidavit there is no evidence in this case to support any finding of "imminently dangerous" as required by the statute.

The record shows that the affidavit of Dr. Pellegrini forms the basis of the order of commitment. Since respondent was not afforded the right, guaranteed by statute, to cross-examine all witnesses, and since the evidence was not sufficient to support findings required by statute, the order is

Reversed.

MARTIN and CLARK, JJ., concur.