An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-962
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
IN THE MATTER OF:
DEBORAH PERKINSON JOHNSON
Wake County
No. 13 SPC 1148
Appeal by respondent from involuntary commitment order
entered 14 March 2013 by Judge Kris Bailey in Wake County
District Court. Heard in the Court of Appeals 22 January 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Adam M. Shestak, for the State.
Parker Poe Adams & Bernstein LLP, by Matthew W. Wolfe, for
petitioner-appellee Holly Hill Hospital.
Appellate Defender Staples Hughes, by Assistant Appellate
Defenders John F. Carella and Benjamin Dowling-Sendor, for
respondent-appellant.
BRYANT, Judge.
Where an involuntary commitment order lacks findings of
fact as required under N.C. Gen. Stat. § 122C-268(j), such
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omissions are substantive and, once notice of appeal has been
given, cannot be corrected by the trial court in an amended
order issued pursuant to N.C. Gen. State. § 1A-1, Rule 60(a).
On 6 March 2013, the guardian of respondent Deborah
Perkinson Johnson (“respondent”) filed an affidavit and petition
for involuntary commitment alleging that respondent was mentally
ill and dangerous to herself or others. That same day, a
custody order was served upon respondent. Upon examination
respondent was transferred to Holly Hill Hospital (“Holly Hill”)
for hospitalization pending her commitment hearing.
On 14 March 2013, a commitment hearing was held. During
the hearing respondent’s guardian testified that while in a
manic state respondent spends money recklessly and has engaged
in distracted driving and hurt herself in several car accidents.
The Holly Hill psychiatrist who treated respondent testified
respondent engaged in “inappropriate behavior” while manic and
that respondent needed inpatient treatment to achieve clinical
stability because respondent was non-compliant with her
medications. Respondent admitted that she was mentally ill but
testified that she is of “full faculty,” “completely understands
her illness,” and has “been compliant with [her] meds.”
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At the conclusion of the hearing, the trial court found
respondent to be mentally ill and dangerous to herself.
Respondent was ordered committed to an inpatient facility for
twenty days and an outpatient facility for seventy days. On 21
March 2013, respondent filed a notice of appeal pursuant to the
14 March order. On 22 March 2013, the trial court amended the 14
March commitment order. On 19 December 2013, respondent,
acknowledging that the prior notice of appeal might not be
sufficient to allow this Court jurisdiction to hear her appeal
from the amended order, filed in this Court a petition for writ
of certiorari.
______________________________
At the outset we note that although respondent’s term of
involuntary commitment has now expired, “a prior discharge will
not render questions challenging the involuntary commitment
proceeding moot.” In re Mackie, 36 N.C. App. 638, 639, 244
S.E.2d 450, 451 (1978) (citation omitted). “When the challenged
order may form the basis for future commitment or may cause
other collateral legal consequences for the respondent, an
appeal of that order is not moot.” In re Webber, 201 N.C. App.
212, 217, 689 S.E.2d 468, 472—73 (2009) (citation omitted).
Therefore, we address the merits of this appeal.
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On appeal, respondent argues that the trial court erred:
(I) by involuntarily committing respondent; and (II) by
concluding that respondent met the standard for involuntary
patient commitment.
I.
Respondent first argues that the trial court erred by
involuntarily committing her. Specifically, respondent contends
the trial court erred because the trial court’s only valid
commitment order, the first order issued 14 March 2013, did not
support its conclusion that respondent was dangerous to herself
with any findings of fact. We agree.
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 Lowery, 110 N.C. App. 67, 71, 428 S.E.2d 861, 863 (1993)
(citation omitted).
The trial court issued two orders of commitment: an initial
order filed 14 March 2013, and a second amended order which
included handwritten findings of fact by the trial court dated
22 March 2013. Respondent filed a timely notice of appeal from
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the initial order on 21 March, one day prior to the trial
court’s amending of the initial order on 22 March. The State
now challenges respondent’s appeal as untimely, arguing that
because the trial court was permitted to amend its order
pursuant to Rule 60(a), this Court lacks jurisdiction to hear
respondent’s appeal because respondent failed to file a timely
notice of appeal from the 22 March amended order.
“The general rule is that the jurisdiction of the trial
court is divested when notice of appeal is given, except that
the trial court retains jurisdiction for matters ancillary to
the appeal, including settling the record on appeal.” State v.
Davis, 123 N.C. App. 240, 242, 472 S.E.2d 392, 393 (1996)
(citations omitted). As the trial court must have its records
“speak the truth,” pursuant to Rule 60(a),
[c]lerical mistakes in judgments, orders or
other parts of the record and errors therein
arising from oversight or omission may be
corrected by the judge at any time on his
own initiative or on the motion of any party
and after such notice, if any, as the judge
orders. During the pendency of an appeal,
such mistakes may be so corrected before the
appeal is docketed in the appellate
division, and thereafter while the appeal is
pending may be so corrected with leave of
the appellate division.
N.C.G.S. § 1A-1, Rule 60(a) (2013). However, "[w]hile Rule 60
allows the trial court to correct clerical mistakes in its
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order, it does not grant the trial court the authority to make
substantive modifications to an entered judgment." Food Serv.
Specialists v. Atlas Rest. Mgmt., 111 N.C. App. 257, 259, 431
S.E.2d 878, 879 (1993). "A change in an order is considered
substantive and outside the boundaries of Rule 60(a) when it
alters the effect of the original order." Buncombe Cnty. v.
Newburn, 111 N.C. App. 822, 825, 433 S.E.2d 782, 784 (1993)
(citation omitted).
The initial commitment order of 14 March does not contain
any findings of fact, while the amended order dated 22 March
contains handwritten findings of fact initialed by the trial
court. The State argues that this amendment is permissible
under Rule 60(a), as the handwritten findings of fact merely
clarify the trial court’s determination that respondent is
dangerous to herself and thus should be committed to both in-
and outpatient treatment, and accordingly is a clerical error.
We disagree, as pursuant to N.C. Gen. Stat. § 122C-268(j),
[t]o support an inpatient commitment order,
the court shall find by clear, cogent, and
convincing evidence that the respondent is
mentally ill and dangerous to self, as
defined in G.S. 122C-3(11)a., or dangerous
to others, as defined in G.S. 122C-3(11)b.
The court shall record the facts that
support its findings.
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N.C.G.S. § 122C-268(j) (2013). Moreover, this Court has
recently held that where a statute requires the trial court to
make findings of fact to support its ultimate determination of a
party’s rights, the presence or absence of those findings is
substantive. In re C.N.C.B., 197 N.C. App. 553, 678 S.E.2d 240
(2009) (holding that where the presence or absence of a finding
of fact altered the effect of the order, any amendment adding or
deleting that finding of fact was substantive and prohibited by
Rule 60(a)).
Here, the trial court was clearly directed by N.C.G.S. §
122C-268(j) to “record the facts that support its findings” when
issuing an involuntary commitment order. A review of the
initial 14 March order does not indicate that the trial court
made any findings of fact; rather, the trial court checked boxes
indicating that it found respondent to be mentally ill and
dangerous to herself, and noted that “the respondent appears and
contests commitment, stipulate [sic] to mental illness and in
need of out-patient commitment.” This Court has held that in
issuing an involuntary commitment order, “it is mandatory that
the trial court record the facts which support its findings.”
In re Allison, ___ N.C. App. ___, ___, 715 S.E.2d 912, 915
(2011) (citation omitted) (holding that where “[t]he trial court
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did not make any written findings of fact,” “the trial court's
checking of a box on its locally modified form is insufficient”
to meet the requirements of N.C.G.S. § 122C-268(j)). As such,
the trial court lacked jurisdiction to enter the amended order
on 22 March where the amendment was to not to correct a clerical
mistake in the order but to add statutorily required findings of
fact and was, therefore, a substantive amendment. See In re
C.N.C.B., 197 N.C. App. 553, 678 S.E.2d 240. As respondent gave
timely notice of appeal from the initial 14 March order, that
appeal is properly before this Court. However, we deny
respondent’s petition for writ of certiorari to review the
amended order as it was entered without jurisdiction. Based on
our resolution of the jurisdictional issue, we do not reach
respondent’s second argument regarding whether she met the
standard for involuntary commitment. We do, however, note that
the evidence does appear to support a finding that respondent is
mentally ill and potentially dangerous to others. We reverse
and remand the 14 March order for entry of appropriate findings
of fact.
Reversed and remanded.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
In re Johnson
Combined Opinion