IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-708
Filed: 19 February 2019
Mecklenburg County, No. 17 SPC 7825
IN THE MATTER OF: J.P.S.
Appeal by respondent from order entered 15 September 2017 by Judge
Tyyawdi M. Hands in Mecklenburg County District Court. Heard in the Court of
Appeals 17 January 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General John Tillery,
for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jillian C.
Katz, for respondent-appellant.
ZACHARY, Judge.
J.P.S.1 (“Respondent”) appeals from an Involuntary Commitment Order
entered against him. Respondent argues that the trial court made insufficient
findings of fact to support its conclusion that Respondent was dangerous to himself
and others. We agree. As a result, the order is vacated and remanded to the trial
court for additional findings of fact.
I. Background
1 Given the sensitive nature of this appeal, initials are used to protect Respondent’s identity.
IN RE: J.P.S.
Opinion of the Court
After examining Respondent on 6 September 2017, Dr. Kelly Hobgood of
Carolinas Medical Center-Randolph (“CMC-Randolph”) in Charlotte executed an
Affidavit and Petition for Involuntary Commitment alleging that Respondent was “a
substance abuser” who was “mentally ill and dangerous to self or others.” The
magistrate ordered that Respondent be taken into custody on 7 September 2017.
Later that day, Dr. W. Carlton Gay of the Behavioral Health Center at CMC-
Randolph examined Respondent and completed an “Examination and
Recommendation to Determine Necessity for Involuntary Commitment” form. On the
form, Dr. Gay marked boxes indicating that Respondent was “mentally ill,”
“dangerous to self,” “dangerous to others,” and “a substance abuser.” To support his
conclusions, Dr. Gay included in the “Description of Findings” that Respondent
[m]aintains that he has 5 military staff members stationed
around the area giving his [sic] intelligence information to
help in his lawsuit against York County Court system/jail.
Has made threatening statements toward the judicial staff
there in general for the way that he was treated (threat
made while here). Feels the Constitution provides him
justification. Prior to coming to ED, he took a large # of
Valium and Ativan in a suicide attempt.
A commitment hearing was held on 15 September 2017 before the Honorable
Tyyawdi M. Hands. After hearing testimony, Judge Hands stated that “[b]ased on
the evidence, the Court concludes that Respondent is mentally ill and
is . . . dangerous to either himself and/or others. For those reasons, I enter the order
that he be committed for up to 30 additional days here and for a 90-day outpatient
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IN RE: J.P.S.
Opinion of the Court
order.” In the trial court’s written Involuntary Commitment Order, the trial court
marked boxes indicating that Respondent was mentally ill and dangerous to himself
or others. To support those conclusions, the trial court marked another box that
stated: “Based on the evidence presented, the Court . . . by clear, cogent, and
convincing evidence, finds as facts all matters set out in [Dr. Gay’s 7 September 2017
report], and the report is incorporated by reference as findings.” In addition, the trial
court found the following additional facts in support of involuntary commitment:
Resp[ondent] followed by [outpatient psychiatrist] where
he has high dose of Adderall [and] Valium meds. Brought
by mom—agitated [and] required multiple forced meds
[and] restraints. Sent texts that he was going to start a
war [and] had 400 rounds. Has grandiose thoughts. He
says he is a commander [and] if judge makes wrong
decision in his court case he will extract the judge [and]
have his own hearing [and] same [at] Rock Hill PD.
Refuses to consider reasonable meds for mania [and]
psychosis. Remains on forced meds [and] is calmer today
because [of] multiple doses. Resp[ondent] admits he has
PTSD from Iraq and retired early. Resp[ondent] is
unhappy about the side effects of the medication including
feeling very groggy. Resp[ondent] denies mak[ing] the
comments about the rounds.
The trial court ordered a thirty-day inpatient commitment for Respondent,
followed by a ninety-day period of outpatient commitment. Respondent timely
appealed.
II. Discussion
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IN RE: J.P.S.
Opinion of the Court
Respondent argues on appeal that the trial court erred in concluding that he
was a danger to himself or others, without making sufficient findings of fact to
support that conclusion. For the reasons explained below, we agree.
Although Respondent’s Commitment Order has already expired, we note that
the argument before us is not moot because “the challenged judgment may cause
collateral legal consequences for the appellant.” In re Booker, 193 N.C. App. 433, 436,
667 S.E.2d 302, 304 (2008). Such collateral legal consequences might include use of
the judgment to attack the capacity of a trial witness, for impeachment purposes, to
attack the character of a defendant if he has put character in issue, or to form the
basis for a future commitment. In re Hatley, 291 N.C. 693, 695, 231 S.E.2d 633, 635
(1977).
When deciding whether to involuntarily commit an individual for inpatient
treatment, the trial court must make two specific findings “by clear, cogent, and
convincing evidence.” N.C. Gen. Stat. § 122C-268(j) (2017). First, the trial court must
find “that the respondent is mentally ill.” Id. Second, the trial court must find that
the respondent is “dangerous to self, . . . or dangerous to others.” Id. In its order, the
trial court “shall record the facts that support its findings.” Id.
Upon review of a commitment order, this Court must “determine whether there
was any competent evidence to support the ‘facts’ recorded in the commitment order
and whether the trial court’s ultimate findings of mental illness and dangerous to self
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IN RE: J.P.S.
Opinion of the Court
or others were supported by the ‘facts’ recorded in the order.” In re Collins, 49 N.C.
App. 243, 246, 271 S.E.2d 72, 74 (1980). However, “[i]t is for the trier of fact to
determine whether the competent evidence offered in a particular case met the
burden of proof[,]” that is, “whether the evidence of respondent’s mental illness and
dangerousness was clear, cogent and convincing.” Id.
In the case before us, Respondent specifically challenges the trial court’s
conclusions that Respondent was dangerous to himself and dangerous to others. We
address each in turn.
A. Dangerous to Self
The General Assembly has defined what it means for an individual to be
“dangerous to himself”:
a. “Dangerous to himself” means that within the relevant
past:
1. The individual has acted in such a way as to show:
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.
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IN RE: J.P.S.
Opinion of the Court
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; or
2. The individual has attempted suicide or
threatened suicide and that there is a reasonable
probability of suicide unless adequate treatment is
given pursuant to this Chapter; or
3. The individual has mutilated himself or
attempted to mutilate himself and that there is a
reasonable probability of serious self-mutilation
unless adequate treatment is given pursuant to this
Chapter.
Previous episodes of dangerousness to self, when
applicable, may be considered when determining
reasonable probability of physical debilitation,
suicide, or self-mutilation.
N.C. Gen. Stat. § 122C-3(11)(a). The trial court must find sufficient evidence to
support one of the three prongs of this statute in order to conclude that an individual
is a danger to himself. Id.
A trial court’s involuntary commitment of a person cannot be based solely on
findings of the individual’s “history of mental illness or . . . behavior prior to and
leading up to the commitment hearing,” but must include findings of “a reasonable
probability” of some future harm absent treatment as required by N.C. Gen. Stat. §
122C-3(11)(a). In re Whatley, 224 N.C. App. 267, 273, 736 S.E.2d 527, 531 (2012).
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IN RE: J.P.S.
Opinion of the Court
Any commitment order that fails to include such findings is “insufficient to support
its conclusions that [the] [r]espondent presented a danger to [himself] and others.”
Id. at 274, 736 S.E.2d at 532.
In Whatley, the trial court determined that the respondent was a danger to
herself. Id. at 270, 736 S.E.2d at 529. To support that conclusion, the trial court
incorporated the findings from a physician’s report and also made its own findings
regarding the respondent’s mental illness at the time and the events leading up to
her commitment hearing. See id. at 271-72, 736 S.E.2d at 530. On appeal, however,
this Court determined that “the second prong of the ‘dangerous to self’ inquiry [was]
not satisfied [because] none of the [trial] court’s findings demonstrate[d] that there
was a reasonable probability of [the] [r]espondent suffering serious physical
debilitation within the near future absent her commitment.” Id. at 272-73, 736
S.E.2d at 531 (quotation marks and brackets omitted). While the findings “reflect[ed]
[the] [r]espondent’s mental illness, . . . they d[id] not indicate that [the] [r]espondent’s
illness or any of her aforementioned symptoms [would] persist and endanger her
within the near future.” Id. at 273, 736 S.E.2d at 531. As a result, this Court could
not “uphold the trial court’s commitment order on the basis that [the] [r]espondent
was dangerous to herself.” Id.
Here, the following evidence was presented at the commitment hearing to
support that Respondent was dangerous to himself: (1) Respondent maintained
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IN RE: J.P.S.
Opinion of the Court
grandiose thoughts that he had a military staff providing him with intelligence
information; (2) Respondent ingested a large number of pills in an apparent suicide
attempt; (3) Respondent had “a high dose of Adderall [and] Valium meds”; (4)
Respondent presented with an agitated manner and required forced medication and
restraints; (5) Respondent refused medication for mania and psychosis; and (6)
Respondent suffered from post-traumatic stress disorder as a result of prior military
service. However, the trial court failed to make any finding that there was “a
reasonable probability of [Respondent] suffering serious physical debilitation within
the near future unless adequate treatment is given” or that there was “a reasonable
probability of suicide unless adequate treatment is given.” N.C. Gen. Stat. § 122C-
3(11)(a)(1), (2). As in Whatley, the trial court’s findings in this case “reflect
Respondent’s mental illness, but they do not indicate that Respondent’s illness or any
of [his] aforementioned symptoms will persist and endanger [him] within the near
future.” Whatley, 224 N.C. App. at 273, 736 S.E.2d at 531. Although the trial court
need not say the magic words “reasonable probability of future harm,” it must draw
a nexus between past conduct and future danger. Id.
Accordingly, because of the trial court’s failure to include a finding of a
reasonable probability of some future harm, “we cannot uphold the trial court’s
commitment order on the basis that Respondent posed a danger to [himself].” Id.
B. Dangerous to Others
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IN RE: J.P.S.
Opinion of the Court
An individual is “dangerous to others” when evidence is presented
that within the relevant past, the individual has inflicted
or attempted to inflict or threatened to inflict serious bodily
harm on another, or has acted in such a way as to create a
substantial risk of serious bodily harm to another, or has
engaged in extreme destruction of property; and that there
is a reasonable probability that this conduct will be
repeated. Previous episodes of dangerousness to others,
when applicable, may be considered when determining
reasonable probability of future dangerous conduct.
N.C. Gen. Stat. § 122C-3(11)(b). As a result, in order to conclude that the respondent
is dangerous to others, the trial court must find three elements:
(1) Within the [relevant] past
(2) Respondent has
(a) inflicted serious bodily harm on another, or
(b) attempted to inflict serious bodily harm on
another, or
(c) threatened to inflict serious bodily harm on
another, or
(d) has acted in such a manner as to create a
substantial risk of serious bodily harm to another,
[or (e) has engaged in extreme destruction of
property,] and
(3) There is a reasonable probability that such conduct will
occur again.
In re Monroe, 49 N.C. App. 23, 30-31, 270 S.E.2d 537, 541 (1980).2 No finding of an
overt act is required to support a conclusion that an individual is dangerous to others.
Id. at 31, 270 S.E.2d at 541.
2 Monroe was decided under a definition of “dangerous to others” provided in N.C. Gen. Stat.
§ 122-58.2(1)(b) that did not include engaging in extreme destruction of property. That statute was
repealed and recodified into the current definition in Chapter 122C that includes engaging in extreme
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IN RE: J.P.S.
Opinion of the Court
In the instant case, the only findings of fact relevant to the conclusion that
Respondent was dangerous to others were (1) Respondent’s statement that he was a
“commander [and] if [a York County, South Carolina] judge makes [the] wrong
decision in his court case [then] he will extract the judge [and] have his own hearing
[and] same [at] Rock Hill PD”; and (2) Respondent’s texts that he “had 400 rounds”
and “was going to start a war.” However, there was no explicit finding that there was
a reasonable probability of future harm to others. Whatley, 224 N.C. App. at 274, 736
S.E.2d at 531 (holding that the trial court’s conclusion that the respondent was a
danger to others was unsupported because the trial court’s findings described past
conduct and drew no connection to future danger to others). Again, although the trial
court need not say the magic words “reasonable probability of future harm,” it must
draw a nexus between past conduct and future danger. Id. at 273, 736 S.E.2d at 531.
The trial court’s findings fail to support its conclusion that Respondent was a
danger to others absent commitment, and accordingly the Commitment Order cannot
be upheld.
III. Conclusion
The trial court’s findings were insufficient to justify the involuntary
commitment of Respondent. The trial court’s order lacked any finding that a
reasonable probability of some future harm existed, either to Respondent or to others,
destruction of property. See 1979 N.C. Sess. Laws. 1260, 1261, ch. 915, § 1; 1985 N.C. Sess. Laws. 670,
672, ch. 589, §§ 1, 2.
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IN RE: J.P.S.
Opinion of the Court
absent his commitment. Thus, the Involuntary Commitment Order is vacated, and
this matter is remanded to the trial court for it to make additional findings to support
its conclusions.
VACATED AND REMANDED.
Judges TYSON and COLLINS concur.
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