Matter of Hogan

232 S.E.2d 492 (1977) 32 N.C. App. 429

In the Matter of Hattie HOGAN.

No. 7627DC641.

Court of Appeals of North Carolina.

March 2, 1977.

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

Asst. Public Defender Larry B. Langson, Gastonia, for respondent-appellant.

PARKER, Judge.

Included in the record is a certificate addressed to the clerk of superior court of Gaston County and signed by the Chief of Medical Services at Broughton Hospital which states that respondent was no longer in need of hospitalization at that facility and accordingly was being unconditionally discharged on 23 April 1976. Although it thus appears that respondent has been released, her appeal is not moot. In re Hatley, N.C., 231 S.E.2d 633 (opinion filed 31 January 1977); In re Crouch, 28 N.C. App. 354, 221 S.E.2d 74 (1976); In re Mostella, 25 N.C.App. 666, 215 S.E.2d 790 (1975); In re Carter, 25 N.C.App. 442, 213 S.E.2d 409 (1975).

Respondent assigns error to the admission into evidence over her objection of the written report signed and sworn to by Dr. Robeson, the physician who examined respondent at Broughton Hospital. 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." Here, Dr. Robeson did not appear at the hearing, and respondent was clearly denied her right to confront and cross-examine him. In re Benton, 26 N.C.App. 294, 215 S.E.2d 792 (1975). Denial of this right would at least entitle respondent to a new hearing. We do not order a new hearing, however, because more serious defects in these proceedings require reversal of the order from which appeal has been taken.

G.S. 122-58.7(i) provides as follows:

"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. The court shall record the facts which support its findings."

This statutory mandate requires as a condition to a valid commitment order that the district court find two distinct facts: first, that the respondent is mentally ill or inebriate, as those words are defined in G.S. 122-36; and second, that the respondent is imminently dangerous to himself or others. In re Carter, supra. Whether a person is mentally ill or inebriate and whether he is imminently dangerous to himself or others, present questions of fact. In the order appealed from in the present case the court proported to make these determinations as "matters of law." We will ignore the incorrect designation and treat the court's conclusions as findings of the ultimate facts required by G.S. 122-58.7(i). The questions for our determination then become (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.

Directing our attention to the first question, the finding that respondent was "preoccupied with religious subjects" hardly furnished support for an ultimate finding either that she was mentally ill or that she was imminently dangerous to herself or others. The remaining facts which the court recorded as supporting its ultimate findings, that respondent had delusions as to the extent of the danger posed by the Ku Klux Klan, that she misinterpreted stimuli, and that she was out of touch with reality, may furnish some support for the ultimate finding that she was mentally ill as those words are defined in G.S. 122-36. They furnish no support for the court's alternative finding that she was inebriate. (Indeed, there is no evidence in this record which even suggests that respondent was ever an inebriate.) More importantly, none of the facts recorded by the court in its order furnish any support for its ultimate finding that respondent was imminently dangerous to herself or others. Thus, one of the two essential findings required for a valid commitment order is without any support from the facts recorded in the court's order.

Turning our attention to the second question, whether, quite apart from the facts recorded in the court's order, there was any competent evidence from which the court could have found the essential ultimate facts required for a valid commitment order, we find that the only competent evidence presented at the hearing bearing on the question whether respondent was imminently dangerous to herself or others was contained in the testimony of Dr. Russ. Although Dr. Russ signed a statement that in his opinion respondent was imminently dangerous to herself or others, at the hearing he testified that he "didn't get any indication that she was aggressively motivated in that sense of being physically violent." Indeed, it is abundantly clear from his testimony given at the hearing that he arrived at his opinion that respondent was imminently dangerous to herself or others solely because he felt that her persistence in trying to convert someone on the street might cause that person to resist the idea, so that "they could become physically aggressive toward her." If so, it would seem more appropriate to commit her aggressor rather than the respondent. In any event, we are unable to find in this record any competent evidence to support the court's finding that respondent was imminently dangerous to herself or others. Absent that evidence,

The order appealed from is

Reversed.

MARTIN and ARNOLD, JJ., concur.