                                  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.
                                      -2-
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.
