In re Moore

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.
 -2-
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.
 -5-

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
 -6-
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,
 -7-
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
 -8-
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
 -9-
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
 -10-
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.”
 -11-
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
 -12-
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
 -14-
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
 -15-
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.