               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


                                         -8-
                                      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



                                          -9-
                                     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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