In Re Lowery , 110 N.C. App. 67 ( 1993 )

428 S.E.2d 861 (1993) 110 N.C. App. 67

In re Calvin LOWERY.

No. 9226DC382.

Court of Appeals of North Carolina.

May 4, 1993.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Kathleen U. Baldwin, Morganton, for State.

Asst. Public Defender Cherie Cox, Charlotte, for respondent-appellant.

MARTIN, Judge.

Respondent contends that the trial court erred (1) in failing to require the examinations of two independent physicians for purposes of the inpatient commitment rehearing and (2) in ordering the inpatient commitment of the respondent when there was evidence that he was suitable for outpatient commitment. We affirm the order of the trial court.

Respondent's first argument is based on the fact that the trial court chose to treat the second hearing as a rehearing under G.S. 122C-276. That section provides in part as follows:

(d) Notice and proceedings of rehearings are governed by the same procedures as initial hearings and the respondent has the same rights he had at the initial hearing including the right to appeal.

Respondent asserts that the above provision requires a specific obligation, before the rehearing, to conduct a second examination by a physician within 24 hours of arrival at an inpatient facility pursuant to G.S. 122C-266 just as is required for the initial commitment hearing. In this case respondent was examined only by a single physician, Dr. Noll, prior to the rehearing.

We agree with the State's position that the portion of the statute quoted above merely refers to the rights of a respondent at the rehearing proceeding itself and does not require a repetition of every occurrence surrounding the initial hearing. We do not find, nor does respondent cite to us, any support for a contrary position.

G.S. 122C-263(a) requires that, in most instances, a respondent believed to be mentally ill and in need of commitment must be taken without unnecessary delay to an area facility for initial examination by a physician or eligible psychologist. G.S. 122C-266 then requires a second examination for inpatient commitment pending a hearing and provides in part that "within 24 hours of arrival at a 24-hour facility ... the respondent shall be examined by a physician." We believe this language demonstrates that the purpose of the second examination is to protect the rights of a respondent who has been taken to a medical facility immediately prior thereto to insure that he was properly committed.

In this case, respondent's initial commitment had been accomplished in accordance with the statute. The purpose of Dr. Noll's second examination was to determine whether continued inpatient commitment was necessary. There was no longer a question of whether respondent's initial commitment was necessary. The words "within 24 hours of arrival" demonstrate the applicability of that provision to the initial commitment phase. It would not make sense to apply that provision to the circumstances of the rehearing at which time there is no longer a question of whether the initial commitment had been proper. The provision of G.S. 122C-276 quoted above requires only that the respondent should have the same procedural rights at the rehearing itself as he did at his initial hearing. There is no showing on the record before us that such rights were not provided.

Respondent also contends that the trial court erred in ordering his commitment as an inpatient because medical and legal evidence existed that respondent was suitable for outpatient commitment. Respondent contends that outpatient treatment, for which Dr. Noll stated that respondent was suitable, was a less restrictive mode of treatment, and that outpatient treatment was available in forms other than nursing homes. Respondent asserts that his mere refusal to go to a nursing home did not convert his medical condition into one meriting a ninety day involuntary commitment. We disagree.

On appeal from an order of commitment, the questions for determination are (1) whether the court's ultimate findings of mental illness and danger to self are 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 Frick, 49 N.C.App. 273, 271 S.E.2d 84 (1980). G.S. 122C-268 requires that the trial court find two distinct facts by clear, cogent, and convincing evidence: first that the respondent is mentally ill, and second, that he is dangerous to himself or others. In re Jackson, 60 N.C.App. 581, 299 S.E.2d 677 (1983). On appeal it is this Court's function to determine if the trial court's findings with respect to respondent's mental illness and dangerousness are supported by any competent evidence; whether that evidence, however, is "clear, cogent and convincing" is for the trier of fact alone to determine. In re Collins, 49 N.C.App. 243, 271 S.E.2d 72 (1980); Jackson, supra.

In this case the trial court found that the respondent was both mentally ill and dangerous to himself. "Dangerous to himself" is defined in G.S. 122C-3(11) as meaning that within the relevant past:

1. The individual has acted in such a way as to show:

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.

"Mental illness" is defined when applied to an adult as:

[A]n illness which so lessens the capacity of the individual to use self-control, judgment, and discretion in the conduct of his affairs and social relations as to make it necessary or advisable for him to be under treatment, care, supervision, guidance, or control.

N.C.Gen.Stat. 122C-3(21).

We have held specifically that the failure of a person to properly care for his/her medical needs, diet, grooming and general affairs meets the test of dangerousness to self. In re Medlin, 59 N.C.App. 33, 295 S.E.2d 604 (1982). The evidence presented at the rehearing was competent to support the finding that respondent was mentally ill and dangerous to himself.

The evidence presented at the rehearing demonstrated that respondent refused to comply with a recommendation that he be placed in a rest home setting, and that he was absolutely incapable of surviving safely in any setting less structured because of his chronic mental illness and polysubstance abuse. Dr. Noll also testified that respondent had a history of bizarre, aggressive thoughts and behavior. The evidence further demonstrated that respondent refused to take his medication or to eat properly and would be unable to care for himself if returned home. We hold that this evidence is competent to support the trial court's conclusions that respondent was mentally ill and dangerous to himself within the statutory definitions of those terms.

The mere fact that respondent may have been suitable for outpatient commitment does not require that result as both respondent's caseworker and respondent himself testified that he would not go to the rest home. Respondent failed to present any alternative outpatient treatment possibilities. Thus, the trial court's finding that respondent met the criteria for inpatient commitment was supported by sufficient competent evidence.

Affirmed.

EAGLES and JOHN, JJ., concur.