In re Moore , 234 N.C. App. 37 ( 2014 )

NO. COA13-1397
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
IN THE MATTER OF:
GILBERT MOORE, JR.
Granville County
No. 12 SPC 1949
Appeal by respondent from order entered 5 August 2013 by
Judge Amanda E. Stevenson in Granville County District Court.
Heard in the Court of Appeals 5 May 2014.
Roy Cooper, Attorney General, by Adam Shestak, Assistant
Attorney General, for the State.
Staples Hughes, Appellate Defender, by James R. Grant,
Assistant Appellate Defender, for respondent-appellant.
MARTIN, Chief Judge.
Respondent Gilbert Moore, Jr. appeals from the trial
court’s involuntary commitment order 5 August 2013 recommitting
him for ninety days of inpatient treatment. Respondent argues
that the trial court lacked subject-matter jurisdiction and that
the evidence does not support the trial court’s ultimate
findings that respondent was a danger to himself as well as
others.
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On 25 September 2012, a licensed clinical social worker in
Guilford County filed an affidavit and petition to have
respondent involuntarily committed. The affidavit contained the
following facts:
Mr. Moore has a history of mental illness.
At present he has very disorganized speech
and is not making any sense. He has
reported to the crisis center multiple times
this morning. He is not able to express
exactly what he needs due to his mental
illness. He appears to have a thought
disorder or some kind of psychotic disorder.
He is in need of evaluation and treatment.
The same day, a Guilford County magistrate, based on
petitioner’s affidavit and petition, issued a custody order and
respondent was picked up by a law enforcement officer and taken
to a facility for examination. Respondent was then examined by
two different physicians, both of whom recommended inpatient
commitment for respondent, and respondent was taken to Central
Regional Hospital. After a hearing on 2 October 2012, the
District Court of Granville County issued an involuntary
commitment order committing respondent to thirty days of
inpatient commitment and sixty days of outpatient commitment.
The court recommitted respondent to ninety days of inpatient
treatment on 1 November 2012. Additional involuntary commitment
orders for varying durations were issued by the district court
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on 31 January 2013, 4 April 2013, 13 June 2013, and 5 August
2013.
Before issuing its 5 August 2013 order, the court heard
evidence as follows: Dr. Jeffrey Fahs, respondent’s attending
physician, testified that respondent had schizoaffective
disorder. He further testified that by age forty-four
respondent had been committed to state hospitals approximately
twenty-seven times, and one of the reasons he was re-
hospitalized so many times was because he would stop taking his
medication when he was released. Dr. Fahs also thought that
respondent was a danger to others; respondent was on Central
Regional Hospital’s alert system due to at least one altercation
with another patient. Dr. Fahs, based on respondent’s
condition, history of violence, and the fact that no suitable
discharge placement was available, recommended that respondent
be recommitted for ninety days.
Esther Robie, a social worker who worked with respondent,
also testified that respondent needed a proper discharge
placement because his discharges have become shorter and his
readmissions more frequent because he stops taking his
medication during periods of discharge. In fact, in the year
before respondent’s 2 October 2012 involuntary commitment, he
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had been admitted to hospitals on three different occasions.
Ms. Robie also testified that when respondent first arrived at
Central Regional Hospital he was placed in the high management
unit because of his aggressive behavior.
Based on Dr. Fahs’s and Ms. Robie’s testimony the district
court made the following findings of fact:
1. The respondent was admitted to this
facility on 09-29-2012.
2. The respondent has a diagnosis of
schizoaffective disorder with psychotic and
manic symptoms. In the past, he also had
delusional thinking.
3. Upon admission on September 29, 2012, he
had exhibited aggressive tendencies.
4. The respondent has a history of 27 state
psychiatric hospitalizations and many other
non-state psychiatric hospitalizations.
5. He has a history of non-compliance with
his medications outside of the hospital.
6. The respondent is at high risk of
decompensation if released and without
medication.
7. During his relapses, he is a danger to
others.
8. Since October 2012, he has been compliant
with medications. He is doing well with
treatment, listens to team and is on level
5. This entitles him to off campus
privileges.
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9. Dr. Fahs stated he is concerned he would
“relapse by the end of football season” if
released without placement.
10. His readmissions are more frequent.
11. The respondent acknowledges his mental
illness.
Based on these findings of fact, the trial court found that
there was clear, cogent, and convincing evidence to support a
finding that respondent is mentally ill and is a danger to
himself and others, and ordered the recommitment of respondent
as an inpatient for ninety days. Respondent appeals.
_________________________
Before addressing the merits of respondent’s appeal we must
address two preliminary matters: (1) whether to grant
respondent’s petition for writ of certiorari, and (2) whether
respondent’s appeal is moot.
First, respondent has filed a petition for writ of
certiorari because his notice of appeal failed to designate “the
court to which [his] appeal is taken” as required by North
Carolina Rule of Appellate Procedure 3(d). A party must comply
with the requirements of Rule 3 to confer jurisdiction on an
appellate court. Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d
313, 322 (2000). Thus, failure to comply with Rule 3 is a
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jurisdictional default that prevents this Court “from acting in
any manner other than to dismiss the appeal.” Dogwood Dev. &
Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 197, 657
S.E.2d 361, 365 (2008). North Carolina Rule of Appellate
Procedure 21(a)(1), however, allows us to issue a writ of
certiorari under “appropriate circumstances . . . to permit
review of the judgments and orders of trial tribunals when the
right to prosecute an appeal has been lost by failure to take
timely action.” In State v. Hammons, __ N.C. App. __, __, 720
S.E.2d 820, 823 (2012), we exercised our discretion to allow the
defendant’s petition for writ of certiorari when “it [was]
readily apparent that [the] defendant ha[d] lost his appeal
through no fault of his own, but rather as a result of sloppy
drafting of counsel.” Therefore, we exercise our discretion and
grant respondent’s petition for writ of certiorari and address
the merits of his appeal.
Next, we hold that respondent’s appeal is not moot even
though the ninety-day commitment period provided in the 5 August
2013 order, from which respondent appeals, has expired. Our
Supreme Court has addressed the question of whether the
discharge of a person who was involuntarily committed renders an
appeal moot. In re Hatley, 291 N.C. 693, 695, 231 S.E.2d 633,
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634 (1977). The Court in Hatley reasoned that “[t]he
possibility that respondent’s commitment in this case might
likewise form the basis for a future commitment, along with
other obvious collateral legal consequences, convinces us that
this appeal is not moot.” Id. at 695, 231 S.E.2d at 635.
Respondent’s appeal is not moot.
Respondent’s first substantive argument is that the trial
court lacked subject-matter jurisdiction to recommit him on 5
August 2013 because the 25 September 2012 affidavit and petition
were fatally deficient because the facts alleged did not
demonstrate that respondent met the statutory requirements for
involuntary commitment. This argument fails for the reasons
stated below.
While respondent claims he is challenging the subject-
matter jurisdiction of the trial court to commit him, his
argument appears to be that the facts in the original affidavit
and petition were insufficient to demonstrate that reasonable
grounds existed to believe that respondent was mentally ill and
a danger to himself or others. See N.C. Gen. Stat. § 122C-
261(a)–(b) (2013) (requiring the petitioner to state the facts
that his opinion that the respondent is mentally ill and a
danger to himself or others is based on, and requiring the
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magistrate to determine if there are reasonable grounds to
believe that the respondent is mentally ill and a danger to
himself or others). Thus, respondent challenges the
magistrate’s 25 September 2012 determination to issue a custody
order. For the reasons stated below, we hold that respondent
has waived this argument.
We have previously found that N.C.G.S. § 122C-261’s
reasonable grounds requirement is synonymous with probable cause
in the criminal context. See, e.g., In re Reed, 39 N.C. App.
227, 229, 249 S.E.2d 864, 866 (1978) (“Reasonable grounds has
been found to be synonymous with probable cause,” (internal
quotation marks omitted)). We have drawn this comparison
because a custody order deprives a person of their liberty and
therefore is analogous to a criminal proceeding, like the
issuance of an arrest warrant, where a defendant is deprived of
his liberty. In re Zollicoffer, 165 N.C. App. 462, 466, 598
S.E.2d 696, 699 (2004). In the past, we have left the analogy
there, however, today we take the analogy one step further.
When there is a problem with a warrant, a defendant may
waive his objection to the sufficiency of the warrant if he does
not object before he enters a plea of not guilty. State v.
Green, 251 N.C. 40, 43, 110 S.E.2d 609, 611–12 (1959); see also
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Irving Joyner, Criminal Procedure in North Carolina § 2.4[C]
(3rd ed. 2005). Based on the procedure for challenging a
warrant in the criminal context, respondent should have raised
his concerns about the affidavit’s sufficiency during his first
involuntary commitment hearing. Furthermore, while none of our
involuntary commitment case law has directly addressed
respondent’s argument, a requirement that respondents raise
issues with the affidavit, petition, or custody order in the
first involuntary commitment hearing is consistent with our case
law. Reed, 39 N.C. App. at 228, 249 S.E.2d at 865, addressed a
respondent’s argument that an affidavit was defective. The
Court recited the facts of the case as follows:
On the affidavit of his cousin, respondent
was taken into custody. At his commitment
hearing, he moved to dismiss on the ground
that the petition for commitment was so
vague as to violate both the statutory
standard and due process, so that there
could have been no finding of probable cause
for issuance of the custody order.
Id. at 277, 249 S.E.2d at 865. Thus, the facts suggest that the
respondent in Reed challenged the sufficiency of the affidavit
during his first involuntary commitment hearing, rather than at
a later recommitment hearing. Here, respondent failed to raise
the issue of the sufficiency of the affidavit during the first
involuntary commitment hearing, nor did the record reflect that
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he raised it at any of the four recommitment hearings preceding
the present appeal. Thus, we hold respondent has waived any
challenge to the sufficiency of the affidavit to support the
magistrate’s original custody order.
Next, respondent challenges two findings of fact from the 5
August 2013 order: (1) Finding of Fact 9, and (2) the ultimate
findings that respondent was a danger to himself as well as
others.
Our standard of review for a recommitment order is the same
as our standard of review for a commitment order. In re Hayes,
151 N.C. App. 27, 29, 564 S.E.2d 305, 307 (“We see no reason to
distinguish the standard of review of a recommitment order from
that of a commitment order.”), disc. review denied and appeal
dismissed, 356 N.C. 613, 574 S.E.2d 680 (2002). When we review
a commitment order, our review is limited to determining “(1)
whether the court’s ultimate findings are indeed supported by
the ‘facts’ which the court recorded in its order as supporting
its findings, and (2) whether in any event there was competent
evidence to support the court’s findings.” In re Hogan, 32 N.C.
App. 429, 433, 232 S.E.2d 492, 494 (1977). If a respondent does
not challenge a finding of fact, however, it is “presumed to be
supported by competent evidence and [is] binding on appeal.”
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State v. Baker, 312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984).
Furthermore, we do not reweigh the evidence because “[i]t is for
the trier of fact to determine whether evidence offered in a
particular case is clear, cogent, and convincing.” In re
Underwood, 38 N.C. App. 344, 347, 247 S.E.2d 778, 781 (1978).
Respondent challenges Finding of Fact 9, which states:
“Dr. Fahs stated he is concerned [respondent] would ‘relapse by
the end of football season’ if released without placement.”
Respondent argues that this is not a finding of fact because it
is simply a recitation of evidence. For this proposition
respondent relies on In re Rogers, 297 N.C. 48, 55, 253 S.E.2d
912, 917 (1979), which states: “Indeed [the Board] made no
findings of fact at all. It merely recited some of the evidence
presented and stated its conclusion that Rogers had not
satisfied the Board of his good moral character.” While on its
face this statement would seem to support respondent’s argument,
it does not.
There are two types of facts: Ultimate facts and
evidentiary facts. See Woodard v. Mordecai, 234 N.C. 463, 470,
67 S.E.2d 639, 644 (1951). “Ultimate facts are the final facts
required to establish the plaintiff’s cause of action or the
defendant’s defense; and evidentiary facts are those subsidiary
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facts required to prove the ultimate facts.” Id. Thus, knowing
that there are evidentiary facts and ultimate facts, it is clear
that the issue in Rogers was that the Board only found
evidentiary facts and not ultimate facts, which would support
its conclusion of law. Applied here, the trial court did not
err in making the evidentiary finding in Finding of Fact 9 even
though it was reciting some of Dr. Fahs’s testimony because the
trial court went on to find the ultimate facts that respondent
was mentally ill and a danger to himself and others.
Next, respondent asserts that there is not clear, cogent,
and convincing evidence to support the trial court’s ultimate
findings that respondent is a danger to himself and a danger to
others.1
A person is a danger to himself if within the relevant
past:
1. The individual has acted in such a way as
to show:
1
We note that respondent states he is challenging the trial
court’s conclusions of law that respondent is a danger to
himself and others. While the pre-printed Involuntary
Commitment Order AOC-SP-203 categorizes these as “conclusions,”
the law is clear that these determinations are not conclusions
of law because “[w]hether a person is mentally ill . . . and
whether he is imminently dangerous to himself or others, present
questions of fact.” Hogan, 32 N.C. App. at 433, 232 S.E.2d at
494. Thus, “[w]e will ignore the incorrect designation and
treat the court’s conclusions as findings of the ultimate facts
required by [the statute].” See id.-13-
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 his suffering serious
physical debilitation within the near
future unless adequate treatment is
given pursuant to this Chapter. A
showing of behavior that is grossly
irrational, of actions that the
individual is unable to control, of
behavior that is grossly inappropriate
to the situation, or of other evidence
of severely impaired insight and
judgment shall create a prima facie
inference that the individual is unable
to care for himself . . . .
N.C. Gen. Stat. § 122C-3(11)(a) (2013). Respondent concedes
that the evidence supports subpart I of the definition, but
argues that the evidence does not support the finding that there
was a “reasonable probability” that respondent would suffer
serious physical debilitation in the near future. Respondent
relies on In re Whatley, __ N.C. App. __, __, 736 S.E.2d 527,
531 (2012), appeal after remand, __ N.C. App. __, 754 S.E2d 258
(2014) (unpublished), for the proposition that the possibility
of relapse alone cannot satisfy the requirement of serious
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physical debilitation in the near future. The Whatley court was
concerned that the trial court’s findings of fact were all
focused on the respondent’s past conduct and not about the
respondent’s potential future conduct. Id. (“Each of the trial
court’s findings pertain to either Respondent’s history of
mental illness or her behavior prior to and leading up to the
commitment hearing, but they do not indicate that these
circumstances render Respondent a danger to herself in the
future.”). The facts before us are distinguishable from Whatley
because, while the trial court did make findings of fact about
respondent’s past conduct, the trial court also made findings
about respondent’s likely future conduct. The trial court found
that respondent “is at a high risk of decompensation if released
and without medication,” and that Dr. Fahs thought respondent,
if released, would “relapse by the end of football season.” As
a result, the trial court’s findings of fact indicate that
respondent is a danger to himself in the future. Therefore, the
trial court properly found that respondent is a danger to
himself because there is a reasonable possibility that he will
suffer serious physical debilitation in the near future.
We do not need to consider respondent’s argument that he is
not a danger to others because N.C.G.S. § 122C-276(e) in
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conjunction with N.C.G.S. § 122C-271(b)(2) only requires that
the trial court find that a respondent is a danger to himself or
others.
For the reasons stated above, we affirm.
Affirmed.
Judges STEELMAN and DILLON concur.