In re A.N.B.

NO. COA13-554

NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

IN THE MATTER OF:
A.N.B.

Moore County
No. 12 SPC 444J

Appeal by Respondent from order entered 29 October 2012 by

Judge Don W. Creed, Jr. in District Court, Moore County. Heard in

the Court of Appeals 5 November 2013.

Attorney General Roy Cooper, by Assistant Attorney General M.
Elizabeth Guzman, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate
Defender Hannah Hall, for Respondent-Appellant.

McGEE, Judge.

A.N.B. (“Respondent”), a minor, was voluntarily admitted by

his guardian to Jackson Springs Treatment Facility (“Jackson

Springs”) on 2 October 2012. Jackson Springs is a secure twenty-

four hour, or inpatient, psychiatric treatment facility.

Respondent was assessed by Freida Green (“Green”) on 2 October

2012, and Green filed an evaluation for admission on the following

day. Respondent was appointed counsel on 4 October 2012.
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Respondent moved for funds to hire a psychiatric expert on 8

October 2012. A hearing was conducted on 15 October 2012 to

determine if the trial court concurred in Respondent’s admission

to Jackson Springs. At the 15 October hearing, the trial court

deferred ruling on Respondent’s 8 October 2012 motion for funds,

and continued the matter until 29 October 2012 to allow time for

Respondent’s attorney to interview experts from Jackson Springs.

At the 29 October 2012 hearing, the trial court denied Respondent’s

8 October 2012 motion for funds to hire an expert. Two witnesses

from Jackson Springs, Green and Leah McCallum (“McCallum”), were

allowed to testify as experts at the hearing. The trial court, by

order entered 29 October 2012, concurred with the voluntary

admission of Respondent to Jackson Springs, and Respondent’s

admission at Jackson Springs was continued for ninety days, the

statutory maximum. Respondent appeals.

Appealability

The order continuing Respondent’s admission at Jackson

Springs for ninety days was entered on 29 October 2012. This meant

the order expired in late January 2013. Because Respondent is not

currently being affected by the 29 October 2012 order, this appeal

would normally be dismissed as moot. “‘The general rule is that

an appeal presenting a question which has become moot will be

dismissed.’” Thomas v. N.C. Dept. of Human Resources, 124 N.C.
 -3-
App. 698, 705, 478 S.E.2d 816, 820 (1996) (citation omitted).

However, there are exceptions to this general rule, including “that

courts may review cases that are otherwise moot but that are

‘capable of repetition, yet evading review[,]’” and “that the court

has a ‘duty’ to address an otherwise moot case when the ‘question

involved is a matter of public interest.’” Id. at 705, 478 S.E.2d

at 820-21 (citations omitted).

Because orders of voluntary admission of a minor to a twenty-

four hour psychiatric treatment facility can only be for a maximum

length of ninety days, N.C. Gen. Stat. § 122C-224.3(g) (2013), we

hold that appeal from orders of voluntary admission of a minor to

a twenty-four hour facility falls into the “capable of repetition,

yet evading review” exception. Because of the State’s great

interest in preventing unwarranted admission of juveniles into

these treatment facilities, we further hold that appeal from these

orders falls into the public policy exception. This appeal is

properly before us.

I.

The issues on appeal are whether: (1) the trial court erred

by denying Respondent’s motion for funds to hire an expert, (2)

the trial court abused its discretion by qualifying two witnesses

as experts, (3) the trial court erred by allowing certain expert

opinion testimony, (4) Respondent’s continued admission to Jackson
 -4-
Springs was contrary to law because a medical examination should

have been performed on Respondent within twenty-four hours of

admission and, (5) the trial court’s findings of fact were

insufficient to support its conclusions and order.

II.

Respondent first argues that the trial court abused its

discretion in denying Respondent’s motion for funds to hire an

expert witness. We disagree.

It is State policy to encourage voluntary
admissions to facilities. It is further State
policy that no individual shall be
involuntarily committed to a 24-hour facility
unless that individual is mentally ill or a
substance abuser and dangerous to self or
others. All admissions and commitments shall
be accomplished under conditions that protect
the dignity and constitutional rights of the
individual.

N.C. Gen. Stat. § 122C-201 (2013). Commitment hearings are civil

proceedings. In re Underwood, 38 N.C. App. 344, 347, 247 S.E.2d

778, 780 (1978). Voluntary admission of minors is covered by N.C.

Gen. Stat. § 122C-221:

Except as otherwise provided in this Part, a
minor may be admitted to a facility if the
minor is mentally ill or a substance abuser
and in need of treatment. Except as otherwise
provided in this Part, the provisions of G.S.
122C-211 shall apply to admissions of minors
under this Part. Except as provided in G.S.
90-21.5, in applying for admission to a
facility, in consenting to medical treatment
when consent is required, and in any other
legal procedure under this Article, the
 -5-
legally responsible person shall act for the
minor.

N.C. Gen. Stat. § 122C-221(a) (2013).

Respondent was provided counsel as required. “Within 48 hours

of receipt of notice that a minor has been admitted to a 24-hour

facility wherein his freedom of movement will be restricted, an

attorney shall be appointed for the minor in accordance with rules

adopted by the Office of Indigent Defense Services.” N.C. Gen.

Stat. § 122C-224.1(a) (2013). N.C. Gen. Stat. § 7A-498.3 states:

(a) The Office of Indigent Defense Services
shall be responsible for establishing,
supervising, and maintaining a system for
providing legal representation and related
services in the following cases:

(1) Cases in which an indigent person is
subject to a deprivation of liberty or other
constitutionally protected interest and is
entitled by law to legal representation;

. . . .

(3) Any other cases in which the Office
of Indigent Defense Services is designated by
statute as responsible for providing legal
representation.

. . . .

(c) In all cases subject to this Article,
appointment of counsel, determination of
compensation, appointment of experts, and use
of funds for experts and other services
related to legal representation shall be in
accordance with rules and procedures adopted
by the Office of Indigent Defense Services.
 -6-
N.C. Gen. Stat. § 7A-498.3 (2013). “In . . . non-criminal cases,

the court may approve fees for the service of expert witnesses,

investigators, and others providing services related to legal

representation in accordance with all applicable IDS rules and

policies.” NC R IND DEF SERV Rule 1.10 (Amended eff. Dec. 9,

2011). There are no statutes or rules that more definitively state

when fees for expert witnesses should be granted in a situation

such as the one before us. The decision to grant or deny fees in

the present case was discretionary. In re Hardy, 294 N.C. 90, 97,

240 S.E.2d 367, 372 (1978) (citation omitted) (“Ordinarily when

the word ‘may’ is used in a statute, it will be construed as

permissive and not mandatory.”).

Similar language from Article 36 of Chapter 7A of our General

Statutes, “Entitlement of Indigent Persons Generally,” has been

held to be discretionary:

N.C. Gen. Stat. § 7A–454 (2003) states,
“[f]ees for the services of an expert witness
for an indigent person and other necessary
expenses of counsel shall be paid by the State
in accordance with rules adopted by the Office
of Indigent Defense Services.” . . . . [I]t
is in the trial court's discretion whether to
grant requests for expenses to retain an
expert witness or to conduct a deposition.

In re D.R., 172 N.C. App. 300, 304-05, 616 S.E.2d 300, 304 (2005)

(citations omitted). In the Article 36, Chapter 7A context, our

Courts have held that funds for an expert witness should be
 -7-
provided when there is a reasonable likelihood that the expert

witness will be of material assistance in the preparation of the

defense, or that without such help it is probable that the

respondent or defendant will not receive a fair trial. D.R., 172

N.C. App. at 305, 616 S.E.2d at 304-05 (holding trial court did

not abuse its discretion in denying funds for expert witness in

termination of parental rights hearing). “‘Mere hope or suspicion

that favorable evidence is available is not enough to require that

such help be provided.’” Id. at 305, 616 S.E.2d at 304 (citations

omitted). We hold the same rule applies in a voluntary commitment

proceeding of a minor.

However, what is required to show that an expert witness will

be of material assistance in the preparation of the defense or,

that without such help, it is probable the respondent will not

receive a fair hearing, is different in a commitment hearing than

it is in a criminal trial or a termination of parental rights

proceeding. See Addington v. Texas, 441 U.S. 418, 429, 431, 60 L.

Ed. 2d 323, 333 (1979) (“the initial inquiry in a civil commitment

proceeding is very different from the central issue in either a

delinquency proceeding or a criminal prosecution”).

This Court has held that a minor, facing commitment pursuant

to the voluntary commitment statute, is entitled to due process

protections. In re Long, 25 N.C. App. 702, 706-07, 214 S.E.2d
 -8-
626, 628-29 (1975). “It is not disputed that a child, in common

with adults, has a substantial liberty interest in not being

confined unnecessarily for medical treatment and that the state's

involvement in the commitment decision constitutes state action

under the Fourteenth Amendment.” Parham v. J. R., 442 U.S. 584,

600, 61 L. Ed. 2d 101 (1979) (citations omitted).

When addressing constitutional issues involving a child and

his parent or guardian, the law starts with the presumption that

the parent or guardian acts with the best interests of the child

as the primary goal. Parham v. J. R., 442 U.S. 584, 602, 61 L.

Ed. 2d 101, 117 (1979). However:

As with so many other legal presumptions,
experience and reality may rebut what the law
accepts as a starting point; the incidence of
child neglect and abuse cases attests to this.
That some parents “may at times be acting
against the interests of their children”
. . . creates a basis for caution, but is
hardly a reason to discard wholesale those
pages of human experience that teach that
parents generally do act in the child's best
interests. The statist notion that
governmental power should supersede parental
authority in all cases because some parents
abuse and neglect children is repugnant to
American tradition.

Nonetheless, we have recognized that a state
is not without constitutional control over
parental discretion in dealing with children
when their physical or mental health is
jeopardized.

Id. at 602-03, 61 L. Ed. 2d at 119.
 -9-
In defining the respective rights and
prerogatives of the child and parent in the
voluntary commitment setting, we conclude that
our precedents permit the parents to retain a
substantial, if not the dominant, role in the
decision, absent a finding of neglect or
abuse, and that the traditional presumption
that the parents act in the best interests of
their child should apply. We also conclude,
however, that the child's rights and the
nature of the commitment decision are such
that parents cannot always have absolute and
unreviewable discretion to decide whether to
have a child institutionalized.

Id. at 604, 61 L. Ed. 2d at 120.

Due process requires an inquiry by a “neutral factfinder” to

determine whether constitutionally adequate procedures are

followed before a child is voluntarily committed based upon his

guardian’s affirmations. See Id. at 606, 61 L. Ed. 2d at 121.

The Second Circuit has held:

We conclude that the due process clause does
not require a state to provide an indigent
patient with a consulting psychiatrist in
every commitment or retention proceeding.
Such a psychiatrist would perform two
functions: (i) providing testimony favorable
to non-commitment or release if the
psychiatrist's professional judgment so
warrants; and (ii) providing assistance to
counsel in preparing the patient's case even
where the doctor favors commitment or
retention. These functions are not of
sufficient import to implicate due process in
every proceeding.

Goetz v. Crosson, 967 F.2d 29, 34-35 (2d Cir. 1992). The Second

Circuit further stated that it has “no basis for assuming that
 -10-
psychiatrists associated with the state have a bias toward

institutionalization.” Id.

Unlike civil or criminal proceedings, the
interests of the parties to a civil commitment
proceeding are not entirely adverse. The
state's concerns are to provide care to those
whose mental disorders render them unable to
care for themselves and to protect both the
community and the individuals themselves from
dangerous manifestations of their mental
illness. A major component of the state
policy is thus the protection of mentally ill
individuals[.]

Id. at 34-35 (citation omitted). We agree with and adopt the

Second Circuit’s reasoning. The analysis may change somewhat when

the mental health professional or professionals, testifying as

experts, do not work for the State. As an example, it is

conceivable, though certainly not expected, that self-serving

financial motivations could affect the neutrality of mental health

professionals working for private institutions. Institutional

pressure to “fill the beds” in an effort to maximize profits is a

hypothetical possibility. However, we do not mean to suggest that

a different standard should apply to private institutions, only

that there might be different concerns for the trial court to

consider, depending on the facts of any particular admission.

In the present case, it appears Respondent was voluntarily

committed to a private institution. It was Respondent’s burden to
 -11-
convince the trial court that there existed some valid concern or

reason to provide funds for an “independent” expert.

[T]he Due Process Clause does not grant an
indigent individual subject to involuntary
commitment an absolute right to the assistance
of a consulting psychiatrist. Such a right
might arise in a case in which counsel has
shown a compelling fact-specific need for the
assistance of a psychiatrist to educate
counsel in particular aspects of a case.

Id. at 36. In the present case, Respondent argues funding for an

additional expert was necessary because that expert might find

something objectionable in the determinations of the experts who

did testify, might help Respondent’s attorney better understand

the testimony of the other experts, or might provide expert

testimony that continued admission was not appropriate. However,

Respondent failed to provide the trial court with any evidence

from which it could have determined that the motivations of the

testifying experts were suspect, or that there existed some

particularized reason, outside reasons that would be found in a

standard case, why this case required funding an expert for

Respondent. Because we hold that Respondent has failed to meet

this burden, we further hold that the trial court did not abuse

its discretion in refusing to order fees for an expert witness for

Respondent. Respondent fails to meet his burden of showing an

abuse of discretion. This argument is without merit.

III.
 -12-
In Respondent’s second argument, he contends the trial court

abused its discretion by qualifying McCallum and Green as experts.

We disagree.

It is well-established that trial courts must
decide preliminary questions concerning the
qualifications of experts to testify or the
admissibility of expert testimony. When
making such determinations, trial courts are
not bound by the rules of evidence. In this
capacity, trial courts are afforded “wide
latitude of discretion when making a
determination about the admissibility of
expert testimony.” Given such latitude, it
follows that a trial court's ruling on the
qualifications of an expert or the
admissibility of an expert's opinion will not
be reversed on appeal absent a showing of
abuse of discretion.

Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674,

686 (2004) (citations omitted). “Opinion testimony given by an

expert witness is competent when evidence is presented showing

‘that, through study or experience, or both, the witness has

acquired such skill that he is better qualified than the jury to

form an opinion on the particular subject of his testimony.’”

Cannizzaro v. Food Lion, 198 N.C. App. 660, 666, 680 S.E.2d 265,

269 (2009) (citation omitted).

McCallum testified on voir dire that, at the time of the

hearing, that she taught mental health “diagnosis and assessment

courses” at an accredited online program in mental health

counseling. She also testified that she worked for Jackson
 -13-
Springs, conducting their “comprehensive clinical assessments for

all the new admissions[.]” She had a master’s degree in

counseling, a post-master’s degree in advanced school counseling

and a doctorate in counselor education and supervision. McCallum

had worked in the mental health and substance abuse field since

1996, and had the Licensed Professional Counselor credential,

which allowed her to diagnose and treat mental illness patients in

North Carolina. McCallum had also been a school counselor for ten

years, had previously worked in a day treatment facility, working

mostly with children and adolescents, and had been conducting

comprehensive clinical assessments since 2009.

Green testified on voir dire that she was currently employed

with Pinnacle Management Group (“Pinnacle”), which owned Jackson

Springs, and that she was providing clinical oversight for the

patients in the facilities owned by Pinnacle. Green testified she

had a master’s degree in clinical counseling, had the Licensed

Professional Counselor license for North Carolina, and the

Licensed Clinical Addiction Specialist license for North Carolina,

which allowed her to diagnose and treat substance abuse, and that

she was nationally accredited as a clinical counselor. She

testified that she had “provided treatment in mental health and

substance abuse for families, adults and children in both public

and private sectors and in several different settings to include
 -14-
inpatient treatment as well as the judicial system.” Green

testified that she had been providing these services since 1988,

“but in a professional capacity since the year 2001.”

We hold that there was substantial evidence presented on voir

dire to support the trial court’s determination that McCallum and

Green were “better qualified than the jury to form an opinion on

the particular subject of [their] testimony.” Cannizzaro, 198

N.C. App. at 666, 680 S.E.2d at 269 (citation omitted). The trial

court did not abuse its discretion in allowing McCallum and Green

to testify as experts in the fields of counseling and diagnosis

and treatment of mental illness and substance abuse in minors.

This argument is without merit.

IV.

In Respondent’s third argument, he contends the trial court

erred in overruling his objections to McCallum’s opinion that

Respondent was in need of continued inpatient treatment because

McCallum relied on conclusions of the clinical staff and failed to

form an independent opinion. We disagree.

N.C.R. Evid. 703 provides that the facts or
data upon which an expert bases her opinion
may be those (1) perceived by the witness or
(2) made known to her at or before the hearing.
The expert's opinion may even be based upon
facts not otherwise admissible in evidence,
provided the facts so considered are of the
type reasonably relied upon by similar experts
in forming opinions on the subject.
 -15-
State v. Black, 111 N.C. App. 284, 293, 432 S.E.2d 710, 716-17

(1993) (citation omitted). “We emphasize that the expert must

present an independent opinion obtained through his or her own

analysis and not merely ‘surrogate testimony’ parroting otherwise

inadmissible statements.” State v. Ortiz-Zape, __ N.C. App. __,

__, 743 S.E.2d 156, 162 (2013) (citation omitted).

McCallum interviewed and assessed Respondent when Respondent

was first admitted to Jackson Springs. McCallum testified

concerning her approach to her 23 May 2012 interview of Respondent:

[B]efore I look at the records I like to talk
with the client, and I always tell my clients
the record is what other people say about you.
I want to hear from you because you're the
best source of information.
Once I interview the child and get a
current bio, psycho-social history, I then
proceed to the record and start looking for
inconsistencies maybe in what the client said
and what's in the record and begin to sort of
sort through all of that.
Sometimes I have access to a case manager
or a legal guardian. And I have noted in here
that I did not speak with his legal guardian.
I think I called and got an answering machine
and did not ever speak with his legal guardian
directly.
So I depended on notes, the case manager,
and my interview with him to come up with a
diagnosis and to determine that he did in fact
meet the criteria for PRTF placement.

McCallum assessed Respondent again on 2 October 2012. McCallum

was asked: “And based on your examinations of [Respondent],

especially the one most recently conducted in October, is it your
 -16-
expert opinion that he continues to suffer from a mental illness?”

McCallum answered: “It is.” She testified concerning the criteria

required to admit a person into a twenty-four hour treatment

facility and was asked on cross-examination: “But you have to look

at him individually and decide whether or not he meets [the

criteria for inpatient treatment][.]” McCallum replied:

“Absolutely. And I did.” McCallum testified that she also

consulted with the clinical staff at least monthly, and factored

their discussions into her diagnoses. We hold there was evidence

presented that McCallum relied on her own assessments of

Respondent, as well as evidence such as patient history and group

clinical discussion, reasonably relied upon by similar experts.

Black, 111 N.C. App. at 293, 432 S.E.2d at 716-17. This argument

is without merit.

V.

In Respondent’s fourth argument, he contends Respondent’s

continued admission to Jackson Springs was unlawful because “the

record does not show that [Respondent] was evaluated by a physician

within twenty-four hours” as required by law. We disagree.

Respondent contends this issue is controlled by N.C. Gen.

Stat. § 122C-211(c), which states in part: “Any individual who

voluntarily seeks admission to a 24-hour facility in which medical

care is an integral component of the treatment shall be examined
 -17-
and evaluated by a physician of the facility within 24 hours of

admission.” N.C. Gen. Stat. § 122C-211(c) (2013). However, there

is not sufficient record evidence that Jackson Springs is a

“facility in which medical care is an integral component of the

treatment.” Respondent argues that he receives prescription

medication at Jackson Springs, but we do not believe the use of

prescription medications at Jackson Springs is sufficient to

define Jackson Springs as such a facility. N.C.G.S. § 122C-211(d)

states in part:

Any individual who voluntarily seeks admission
to any 24-hour facility, other than one in
which medical care is an integral component of
the treatment, shall have a medical
examination within 30 days before or after
admission if it is reasonably expected that
the individual will receive treatment for more
than 30 days or shall produce a current, valid
physical examination report, signed by a
physician, completed within 12 months prior to
the current admission.

N.C.G.S. § 122C-211(d). Because there is insufficient record

evidence that medical care is an integral component of treatment

at Jackson Springs, there was no statutory requirement that

Respondent receive a medical examination within twenty-four hours

of admission. Respondent makes no argument that the requirements

of N.C.G.S. § 122C-211(d) have been violated in the present case.

This argument is without merit.

VI.
 -18-
In Respondent’s final argument, he contends the trial court

erred in failing to make a finding that Respondent was in need of

further treatment at Jackson Springs. We agree.

Hearings for review of voluntary admission of minors to

twenty-four hour treatment facilities are covered by N.C. Gen.

Stat. § 122C-224.3, which states in relevant part:

(f) For an admission to be authorized beyond
the hearing, the minor must be (1) mentally
ill or a substance abuser and (2) in need of
further treatment at the 24-hour facility to
which he has been admitted. Further treatment
at the admitting facility should be undertaken
only when lesser measures will be
insufficient. It is not necessary that the
judge make a finding of dangerousness in order
to support a concurrence in the admission.

(g) The court shall make one of the following
dispositions:

(1) If the court finds by clear, cogent,
and convincing evidence that the
requirements of subsection (f) have
been met, the court shall concur
with the voluntary admission and set
the length of the authorized
admission of the minor for a period
not to exceed 90 days[.]

N.C. Gen. Stat. § 122C-224.3 (2013). When reviewing a prior but

substantially similar statute, this Court held that making the

required findings is mandatory, and that failure to do so will

result in reversal of the commitment order. In re Hiatt, 45 N.C.

App. 318, 319, 262 S.E.2d 685, 686 (1980) (“We hold that under

G.S. 122-56.7(b) before a court can concur with a voluntary
 -19-
commitment for an incompetent, it must find that the incompetent

is mentally ill or an inebriate and is in need of further treatment

at the treatment facility.”).

In the case before us, the trial court found in the 29 October

2012 order that Respondent was mentally ill, and that no less

restrictive measures would be sufficient. The trial court then

“authorize[d] the continued admission of . . . [R]espondent[.]”

However, the trial court failed to specifically find that

Respondent was in need of further treatment. Under the conclusions

section of the AOC-SP-913M form, “Order Voluntary Admission of

Minor,” there are boxes to indicate whether the trial court

“concludes” that the minor is “mentally ill,” a “substance abuser,”

“in need of continued treatment at the 24-hour facility to which

[Respondent] has been admitted,” and whether “less restrictive

measures would not be sufficient.” The trial court checked the

boxes indicating that Respondent was mentally ill and that less

restrictive measures would not be sufficient. The trial court

failed to check a box to indicate that Respondent either was or

was not in need of continued treatment at Jackson Springs. Though

need for further treatment is a reasonable inference of the

findings and conclusions made, we hold that the required ultimate

findings of fact must be made explicitly and reverse the order of

the trial court. Id. at 319-20, 262 S.E.2d at 686. We realize
 -20-
there will be no practical effect to Respondent in reversal of the

29 October 2012 order, as the order is no longer in effect, but

this Court held in similar circumstances in Hiatt that failure to

make the required findings results in reversal. See Id.

Reversed.

Judges BRYANT and STROUD concur.