IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-693
Filed: 20 March 2018
Wake County, No. 16 SPC 8556
IN THE MATTER OF: E.D.
Appeal by respondent from order entered 5 January 2017 by Judge Dan Nagle
in Wake County District Court. Heard in the Court of Appeals 29 November 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Robert T.
Broughton, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Wyatt
Orsbon, for respondent-appellant.
DAVIS, Judge.
North Carolina law requires that a person who has been involuntarily
committed to a mental health facility be examined by a physician within 24 hours of
arrival at such a facility. In this case, the respondent was examined by a psychologist
— rather than a physician — following her arrival at an inpatient mental health
facility. The issue before us in this appeal is whether this statutory violation
automatically requires us to vacate the trial court’s order authorizing her continued
commitment without the need for her to show that she was actually prejudiced by the
violation. Because we conclude that no showing of prejudice was required under
these circumstances, we vacate the trial court’s order.
Factual and Procedural Background
IN RE: E.D.
Opinion of the Court
On 26 December 2016, Yolanda Diaz filed an affidavit and petition for the
involuntary commitment of her sister, E.D. (“Respondent”) in which she alleged that
Respondent was mentally ill and dangerous to herself or others. A Wake County
magistrate found that reasonable grounds existed to believe the facts alleged in the
petition were true and ordered Respondent to be held for examination.
Respondent was transported to UNC Hospitals at 8:00 p.m. on 26 December
2016. The following day, she was examined by Dr. Katie Cheng. Dr. Cheng then
completed a form labeled Examination and Recommendation to Determine Necessity
for Involuntary Commitment. On this form, Dr. Cheng stated that in her opinion
Respondent was mentally ill and dangerous to herself or others. Dr. Cheng
recommended that she be committed to an inpatient treatment facility for a period of
15 days.
As a result of Dr. Cheng’s recommendation, Respondent was transferred to
UNC Wakebrook Psychiatric Services (“UNC Wakebrook”) later that same day. On
27 December 2016, a second examination of Respondent was conducted by Allison H.
Williams, a psychologist. Williams formed the opinion that Respondent was mentally
ill and a danger to herself or others and recommended inpatient commitment for a
period of five to ten days. Respondent remained at UNC Wakebrook for the next nine
days while awaiting an involuntary commitment hearing.
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IN RE: E.D.
Opinion of the Court
A hearing was held on 5 January 2017 in Wake County District Court before
the Honorable Dan Nagle. Following the hearing, the trial court entered an order
concluding that Respondent was mentally ill and a danger to herself or others. The
court ordered that she be committed to UNC Wakebrook for a period of inpatient
treatment not to exceed 30 days. Respondent filed written notice of appeal on 27
January 2017.1
Analysis
N.C. Gen. Stat. § 122C-266 provides, in pertinent part, as follows:
(a) Except as provided in subsections (b) and (e), within 24
hours of arrival at a 24-hour facility described in G.S.
122C-252, the respondent shall be examined by a
physician. This physician shall not be the same physician
who completed the certificate or examination under the
provisions of G.S. 122C-262 or G.S. 122C-263. The
examination shall include but is not limited to the
assessment specified in G.S. 122C-263(c).
N.C. Gen. Stat. § 122C-266(a) (2017). Thus, the statute plainly provides that
involuntarily committed persons must be examined by a physician within one day of
their arrival at a 24-hour facility.
On appeal, Respondent asserts that because her 27 December 2016
examination was conducted by a psychologist rather than a physician, N.C. Gen. Stat.
1We note that although Respondent’s commitment period has expired, her appeal is not moot
given the “possibility that [R]espondent’s commitment in this case might . . . form the basis for a future
commitment, along with other obvious collateral legal consequences[.]” In re Hatley, 291 N.C. 693, 695,
231 S.E.2d 633, 635 (1977).
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IN RE: E.D.
Opinion of the Court
§ 122C-266(a) was violated. It is well established that “[a]lleged statutory errors are
questions of law[.]” State v. Mackey, 209 N.C. App. 116, 120, 708 S.E.2d 719, 721,
disc. review denied, 365 N.C. 193, 707 S.E.2d 246 (2011). We review questions of law
de novo. Id. Under the de novo standard, this Court “considers the matter anew and
freely substitutes its own judgment for that of the lower tribunal.” State v. Williams,
362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citation and quotation marks
omitted).
The State concedes that a violation of N.C. Gen. Stat. § 122C-266(a) occurred
in this case. However, the State makes two arguments as to why the trial court’s
order should not be vacated. First, the State contends that Respondent has not
adequately preserved this issue for appellate review. Second, it asserts that
Respondent has failed to show that she was actually prejudiced by the error. We
address each argument in turn.
I. Preservation
As an initial matter, the State asserts that Respondent has not properly
preserved the issue she seeks to raise on appeal. The State contends that she waived
the right to appellate review of this issue by failing to raise it before the trial court at
the 5 January 2017 hearing.2
2
Respondent does not dispute the fact that she failed to raise this issue during her involuntary
commitment hearing.
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IN RE: E.D.
Opinion of the Court
Relying primarily on our decision in In re Moore, 234 N.C. App. 37, 758 S.E.2d
33, disc. review denied, 367 N.C. 527, 762 S.E.2d 202 (2014), the State argues that
N.C. Gen. Stat. § 122C-266(a) merely confers a waivable right upon the subject of an
involuntary commitment proceeding. In Moore, a respondent sought to challenge on
appeal the sufficiency of the factual basis for his involuntary commitment as set out
in the affidavit initiating the commitment. Id. at 41-42, 758 S.E.2d at 36-37. Because
the respondent “failed to raise the issue of the sufficiency of the affidavit during the
first involuntary commitment hearing,” this Court held that he had failed to preserve
the argument for appeal. Id. at 42, 758 S.E.2d at 37. We note, however, that Moore
did not involve N.C. Gen. Stat. § 122C-266 — the statute at issue in the present
appeal.
In arguing that this issue should be deemed preserved despite her failure to
assert it in the trial court, Respondent directs our attention to In re Spencer, 236 N.C.
App. 80, 762 S.E.2d 637 (2014), disc. review denied, 367 N.C. 811, 767 S.E.2d 529
(2015), in which this Court interpreted N.C. Gen. Stat. § 122C-266(a) as a statutory
mandate. Id. at 84-85, 762 S.E.2d at 640. In Spencer, the respondent was committed
to Holly Hill Hospital following an initial examination performed by a physician in
which it was determined that he was mentally ill and in need of inpatient treatment.
Id. at 82, 762 S.E.2d at 639. Three days later, a hearing was held in which a
psychiatrist — who qualified as a “physician” for purposes of N.C. Gen. Stat. § 122C-
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IN RE: E.D.
Opinion of the Court
266(a) — testified that he had examined the respondent within 24 hours of his arrival
at Holly Hill and believed that inpatient treatment of the respondent was necessary.
Following the hearing, the trial court entered an involuntary commitment order. Id.
On appeal to this Court, the respondent asserted that N.C. Gen. Stat. § 122C-
266(a) had been violated because no written record existed of the second examination
or the psychiatrist’s findings resulting from that examination. Id. at 84, 762 S.E.2d
at 640. As a result, he argued, the trial court’s order should be vacated because “the
record [did] not demonstrate that he was examined by a second physician within
twenty-four hours of being admitted to Holly Hill Hospital, in violation of N.C. Gen.
Stat. § 122C-266.” Id.
We determined that the issue was, in fact, preserved as a matter of law, stating
that when a statutory mandate is violated the right to assert that issue on appeal is
preserved despite the party’s failure to object below. We stated that “the purpose of
the second examination pursuant to N.C. Gen. Stat. § 122C-266 is to protect the
rights of a respondent who has been taken to a medical facility immediately prior
thereto to insure that he was properly committed.” Id. at 85, 762 S.E.2d at 640
(citation, quotation marks, and brackets omitted).
Thus, Spencer stands for the proposition that the second examination
requirement contained in N.C. Gen. Stat. § 122C-266(a) is a statutory mandate — the
violation of which is automatically preserved as an issue on appeal regardless of
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IN RE: E.D.
Opinion of the Court
whether the respondent objects in the trial court. Accordingly, we reject the State’s
preservation argument.
II. Need for Showing of Prejudice
The State’s final argument is that Respondent is not entitled to relief because
she has failed to show that she was actually prejudiced by the fact that her second
examination was not conducted by a physician. We disagree.
In In re Barnhill, 72 N.C. App. 530, 325 S.E.2d 308 (1985), this Court
addressed the physician examination requirement under former N.C. Gen. Stat.
§§ 122-58.3 and -58.6 — predecessor statutes to N.C. Gen. Stat. § 122C-266. In
Barnhill, a physician executed an affidavit recommending inpatient commitment of
the respondent, but no evidence existed that a second physician had conducted an
examination of the respondent as required by statute. Id. at 531-32, 325 S.E.2d at
309. At the respondent’s hearing, the physician who submitted the affidavit for the
initial commitment simply testified that he had transferred the respondent to the
care of a second physician. No evidence was offered that the second physician had
actually conducted an examination of the respondent. Id. at 532, 325 S.E.2d at 309.
We vacated the trial court’s involuntary commitment order, stating the following:
Petitioner contends that the record shows compliance with
statutory provisions in that Dr. Blackburn testified that “I
gave respondent under the care of Dr. Gomez, as I am not
a psychiatrist.” The above-quoted testimony contains the
sole reference in this record to Dr. Gomez. We think it clear
beyond peradventure that this testimony falls far short of
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IN RE: E.D.
Opinion of the Court
establishing that a second qualified physician performed
the examination required by G.S. 122-58.6. Our courts
have held that the requirements of G.S. 122-58.3 must be
followed diligently. Because the record shows that the
statutory requirements were not complied with, we hold
the order entered by the court must be vacated.
Id. (internal citations, quotation marks, ellipsis, and brackets omitted). Nothing in
Barnhill supports the proposition that a showing of prejudice is necessary by a
respondent who failed to receive a statutorily required second examination.
In attempting to demonstrate that such a showing of prejudice is, in fact,
required, the State seeks to rely on Spencer. As noted above, in Spencer although no
written records existed documenting the fact that a second physician had examined
the respondent within 24 hours of his admission as required by N.C. Gen. Stat.
§ 122C-266(a), the undisputed evidence showed that such a second examination had
actually been performed. We affirmed the trial court’s commitment order, stating as
follows:
Here, respondent concedes that Dr. Saeed’s testimony
illustrates that he conducted an examination of respondent
on 23 July 2013, the day after he was admitted to Holly
Hill Hospital. Dr. Saeed’s testimony indicated that he
believed respondent to be mentally ill with a diagnosis of
schizophrenia. Dr. Saeed also stated throughout his
testimony that respondent was a danger to himself because
he refused to take necessary medication, was unable to
care for himself, and was unable to limit his fluids in order
to keep his sodium level normal. On appeal, respondent
does not contest the substance of Dr. Saeed’s testimony, nor
does he argue that he was improperly committed based on
any insufficiency of Dr. Saeed’s examination. Reviewing
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IN RE: E.D.
Opinion of the Court
the record, we are unable to find that respondent was
prejudiced by the absence of a written record of Dr. Saeed’s
findings. Based on the foregoing, we reject respondent’s
argument that the involuntary commitment order should
be vacated.
Spencer, 236 N.C. App. at 85, 762 S.E.2d at 640.
The issue in Spencer was significantly different than the question presented
here. Unlike the present case, it was undisputed in Spencer that the second physician
examination required by N.C. Gen. Stat. § 122C-266 had occurred in that the
respondent was examined by a second physician within 24 hours of his arrival at the
facility. Thus, although no documentation evidencing the second examination could
be located, no dispute existed as to the fact that the examination had been conducted.
Under those circumstances, this Court simply held that the respondent had not been
prejudiced by the missing documentation.
Spencer cannot be read as standing for the entirely separate proposition that
in cases where — as here — the second examination requirement of N.C. Gen. Stat.
§ 122C-266(a) clearly has not been followed, a respondent must nevertheless show
prejudice stemming from her failure to receive a second examination. Thus, we
believe Spencer should be limited to its facts.
Our holding today is that in cases where a respondent does not receive an
examination by a second physician as mandated by N.C. Gen. Stat. § 122C-266(a),
the respondent is not required to make a showing of prejudice resulting from the
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IN RE: E.D.
Opinion of the Court
statutory violation in order to have the trial court’s order authorizing her continued
commitment vacated. In the present case, because Respondent has established
precisely such a statutory violation, the trial court’s involuntary commitment order
must be vacated.
Conclusion
For the reasons stated above, we vacate the trial court’s 5 January 2017 order.
VACATED.
Judges CALABRIA and TYSON concur.
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