Matter of Salem

228 S.E.2d 649 (1976) 31 N.C. App. 57

In the matter of Mary Louise SALEM.
In the matter of Clyde McWHIRTER.
In the matter of Leon MILES.
In the matter of Audrey HOLT.

Nos. 7626DC278 to 281.

Court of Appeals of North Carolina.

October 6, 1976.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Isaac T. Avery, III, Raleigh, for the State.

Asst. Public Defender James Fitzgerald, Charlotte, for Clyde McWhirter, Leon Miles, Audrey Holt and Mary Louise Salem, respondents-appellants.

ARNOLD, Judge.

Under the statute as it existed prior to June 1974 a person could be involuntarily committed when determined "by reason of the commission of overt acts [that] the person is violent and of imminent danger to himself or others, or is gravely disabled." [G.S. 122-58.6(a) (1973)]. The present statute provides,

"To support a commitment order, the court is required to find, by clear, cogent, and convincing evidence, that the respondent is mentally ill or inebriate, and imminently dangerous to himself or others." G.S. 122-58.7(i)

Respondents assert the unconstitutionality of North Carolina's involuntary commitment statutes, G.S. 122-58.1 et seq. The difference in the present law and the old is that the requirement of "overt acts" under the former law has been replaced by a requirement of "clear, cogent and convincing evidence." Respondents argue that the definitions of "mental illness" and "inebriety" found in G.S. 122-36 are vague and arbitrary unless read in conjunction with a requirement that "imminent danger" be shown or evidenced by some "overt act".

In support of their position that some overt act is required in order for an involuntary commitment to be constitutional respondents cite Lessard v. Schmidt, D.C., 349 F.Supp. 1078 (1972). That case holds that "imminent danger", as used in Wisconsin's involuntary commitment act, implicitly requires "a finding of a recent overt act, attempt or threat to do substantial harm to oneself or another", and without making such finding there can be no involuntary commitment.

G.S. 122-58.2 provides that the definition of mental illness under Chap. 122, Art. 5A means "mental illness" as defined in G.S. 122-36(d), which is as follows:

"The words ``mental illness' shall mean an illness which so lessens the capacity of the person to use his customary 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. The words ``mentally ill' shall mean a person with a mental illness."

The definition of mental illness in G.S. 122-36(d) is certainly capable of being understood and objectively applied with the help of medical experts. In a recent case attacking the constitutionality of the statutory procedure for sterilization of mentally ill persons our Supreme Court held that "mental illness" as defined by G.S. 35-1.1 was not vague and arbitrary. In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976). The definition contained in G.S. 35-1.1 is virtually the same definition contained in G.S. 122-36(d).

The words "imminently dangerous" simply mean that a person poses a danger to himself or others in the immediate future. An overt act may be clear, cogent and convincing evidence which will support a finding of imminent danger, but we cannot agree that there must be an overt act to establish imminent dangerousness.

We hold that G.S. 122-58.1 et seq., and the related definition of mental illness, is not unconstitutionally vague.

Respondents next contend that the trial court abused its discretion by indiscriminately considering their prior hospitalizations. We find no abuse of discretion. The State, however, concedes that it was error to admit evidence of prior voluntary admissions in disregard to G.S. 122-56.6, but contends that the error is harmless where there is other competent evidence to support the commitment. We agree.

We now consider respondent's assignments of error to the court's finding of mental illness and imminent danger to self or others. Respondents McWhirter and Miles argue that there is no evidence to support this finding.

The district court must make separate and distinct findings of (1) mental illness and/or inebriacy and (2) imminent danger to self or others. We see no problem in the cases before us relating to the finding of mental illness. There is clear, cogent and convincing evidence of mental illness in the case of McWhirter and in the case of Miles. However, we agree with both respondents' contentions that there is not clear, cogent and convincing evidence to support a finding of imminent danger.

In the case of Clyde McWhirter the only evidence tending to show dangerousness was provided by a doctor who indicated that McWhirter "appears mentally unable [to] care for self & probably of imminent danger to self." [Emphasis added.] Such evidence is not clear, cogent and convincing.

In the case of Leon Miles the doctor's affidavit stated that Miles "appears unable to cope with daily living." Again this evidence fails to present clear, cogent and convincing evidence of imminent danger.

Respondents Holt and Salem set out no reasons or arguments in support of their assignments of error to the court's findings of mental illness and imminent danger. These assignments of error are therefore taken as abandoned. Rule 28(b)(3), Rules of Practice in the Court of Appeals. Higgins v. Builders and Finance, Inc., 20 N.C. App. 1, 200 S.E.2d 397 (1973).

As to respondents McWhirter and Miles the judgment is vacated. As to respondents Holt and Salem the judgment is affirmed.

Affirmed in part and vacated in part.

BROCK, C. J., and PARKER, J., concur.