Matter of Crainshaw , 54 N.C. App. 429 ( 1981 )

MARTIN (Robert M.J, Judge.

N.C. Gen. Stat. § 122-58.7U) requires as a condition to a valid commitment order that the district court find two distinct facts by clear, cogent, and convincing evidence: first that the respondent is mentally ill or inebriate and second, that the respondent is dangerous to herself or others.

It is for the trier of fact to determine whether evidence offered in a particular case is clear, cogent, and convincing. Our function on appeal is simply to determine whether there was any competent evidence to support the factual findings made. In re Monroe, 49 N.C. App. 23, 270 S.E. 2d 537 (1980); In re Underwood, 38 N.C. App. 344, 247 S.E. 2d 778 (1978).

The respondent contends that there is no competent evidence to support a finding or conclusion of dangerousness to self, either in the facts recorded in the court’s order or in the record. The phrase “dangerous to himself” when used in Article 5A is defined in N.C. Gen. Stat. § 122-58.2(1) as follows:

a. “Dangerous to himself’ shall mean that within the recent past:

I. That he would be unable without care, supervision, and the continued assistance of others not otherwise available, to exercise self-control, judgment, and discretion in the conduct of his daily responsibilities and social relations, or to satisfy his need for nourishment, personal or medical care, shelter, or self-protection and safety; and

II. That there is a reasonable probability of serious physical debilitation to him within the near future unless adequate treatment is afforded pursuant to this Article. A showing of behavior that is grossly irrational or of actions which the person is unable to control or of behavior that is grossly inappropriate to the situation or other evidence of severely impaired insight and judgment shall create a prima facie inference that the person is unable to care for himself. . . .

The statutory language established a two prong test for dangerousness to self. The first prong addresses self-care ability regarding one’s daily affairs. The second prong, which also must be satisfied for involuntary commitment to result, mandates a specific finding of a probability of serious physical debilitation resulting from the more general finding of lack of self-caring ability. We have held that pursuant to G.S. 122-58.7Ü) the facts supporting danger must be recorded by the trial court. In re Caver, 40 N.C. App. 264, 252 S.E. 2d 284 (1979); In re Jacobs, 38 N.C. App. 573, 248 S.E. 2d 448 (1978).

We must agree with respondent that neither the facts recorded by the trial court nor the record supports a conclusion or ultimate finding of dangerousness to self. Alternatively, even if indicative of some danger, the facts do not support the finding that “[t]here is a reasonable probability of serious physical debilitation to the Respondent within the near future. . . .”

The judgment in this case discloses that the trial judge relied solely upon the testimony of the respondent’s husband and daughter in its finding that the respondent was dangerous to herself. The court found that the respondent had forgotten to turn off the stove on many occasions, resulting in the burning of numerous pots and pans and a formica top; that she was forgetful; that she frequently talked to the wall; and that she appeared to be out of touch with her real surroundings. These facts may be evidence of mental illness, or under the broad language of § 122-58.2(l)a.l.I., danger characterized by inability to “exercise self-control, judgment, and discretion in the conduct of his daily responsibilities. . . .” However, these facts do not meet the second prong of the test, a reasonable probability of serious physical debilitation to her in the near future. The State presented no evidence showing the present or future effect of this behavior on the respondent. Forgetfulness and talking to the wall alone do not amount to danger as contemplated in the controlling statute.

We do not consider the respondent’s remaining assignment of error.

For the reasons stated, the decision of the district court is

Reversed.

Judge Wells concurs. Judge WEBB dissents.