               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-333

                                Filed: 7 January 2020

Pitt County, No. 18 CVD 2742

IN THE MATTER OF: S.C.

       Appeal by Respondent from order entered 10 October 2018 by Judge Brian

DeSoto in Pitt County District Court. Heard in the Court of Appeals 15 October 2019.


       The Graham.Nuckolls.Conner. Law Firm, PLLC, by Timothy E. Heinle, for the
       Petitioner-Appellee, Pitt County Department of Social Services.

       Appellate Defender Glenn Gerding, by Assistant Appellate Defender David W.
       Andrews, for the Respondent-Appellant.


       BROOK, Judge.


       Stanley Corbitt (“Respondent”) appeals from the trial court’s order authorizing

Pitt County Department of Social Services (“the Department”) to provide or consent

to the provision of protective services. The trial court concluded that Respondent was

a disabled adult who lacked capacity to consent to the provision of protective services.

Respondent’s appointed Guardian ad Litem counsel appeals. We affirm the order of

the trial court.

                                    I. Background

       Respondent resides in Pitt County and presents a history of medical issues the

treatment of which and his inability to follow recommended medical orders led to the

involvement of the Department in his care. After receiving a report concerning
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Respondent’s inability to care for himself and make decisions about his medical

treatment in August 2018, the Department filed a petition on 3 October 2018 for an

order authorizing the provision of protective services, alleging that Respondent

lacked capacity to consent to the provision of protective services and was without a

willing, able, and responsible person to perform or obtain these services.

      At the 10 October 2018 hearing, District Court Judge Brian DeSoto heard

testimony from Respondent and his brother, who had been his caretaker prior to the

hearing, and a social worker employed by the Department.           The social worker

testified that Respondent suffered from numerous bacterial and fungal infections

from wounds on his leg, arm, and skull, and was experiencing significant mental

health issues. The social worker went on to testify that these issues had escalated

while Respondent was hospitalized to the point where Respondent had taken

“scissors and cut off tissue to the bone and the tendon [was] exposed.” Respondent’s

brother testified that he believed Respondent could “pretty much take care of

himself,” explaining that he visited him at least once a week prior to his

hospitalization.   At the conclusion of the hearing the trial court found that

Respondent was a disabled adult in need of protective services due to mental

incapacity. The court entered an order to that effect the same day. Respondent’s




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appointed Guardian ad Litem counsel entered timely written notice of appeal from

that order.1

                                              II. Analysis

        Respondent raises two arguments on appeal, which we address in turn.

                                  A. Subject Matter Jurisdiction

        Respondent first argues that the trial court lacked subject matter jurisdiction

to authorize the Department to provide or consent to provide protective services.

Specifically, Respondent contends that the absence of allegations in the petition about

other individuals able, responsible, and willing to provide or assist him to obtain

protective services rendered the petition fatally defective, depriving the trial court of

subject matter jurisdiction. We disagree.




        1  Respondent argues that this appeal is not moot regardless of whether the conditions leading
to entry of the 10 October 2018 order subsequently changed before this appeal could be heard by our
Court because the appeal presents questions capable of repetition yet evading review. The
Department does not argue that this appeal is moot and we agree that the questions presented by this
appeal are capable of repetition yet evading review. “[C]ases which are ‘capable of repetition[] yet
evading review may present an exception to the mootness doctrine.’” 130 of Chatham, LLC v.
Rutherford Elec. Membership Corp., 241 N.C. App. 1, 8, 771 S.E.2d 920, 926 (2015) (quoting Boney
Publishers, Inc. v. Burlington City Council, 151 N.C. App. 651, 654, 566 S.E.2d 701, 703 (2002)). Cases
in this category must meet two requirements: “(1) the challenged action is in its duration too short to
be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the
same complaining party would be subjected to the same action again.” Id. (internal marks and citation
omitted). The 60-day order in this case meets these requirements. Appeals from 60-day orders
authorizing protective services are in their “duration too short to be fully litigated prior to [their]
cessation or expiration”; they also present “a reasonable expectation that the same complaining party
would be subjected to the same action again.” Id. Holding otherwise would render them unreviewable
because of the standard timetable on which review by our Court is possible. This appeal, for example,
was not heard until a year and five days after the trial court entered the order being appealed – 310
days after the expiration of Judge DeSoto’s 10 October 2018 order.

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       “Chapter 108A, Article 6, of the North Carolina General Statutes, entitled the

‘Protection of the Abused, Neglected, or Exploited Disabled Adult Act,’ sets out the

circumstances and manner in which the director of a county department of social

services may petition the district court for an order relating to provision of protective

services to a disabled adult.” In re Lowery, 65 N.C. App. 320, 324, 309 S.E.2d 469,

472 (1983). In October 2018, the time the petition at issue was filed, the Act defined

“disabled adult” as follows:

              The words “disabled adult” shall mean any person 18 years
              of age or over or any lawfully emancipated minor who is
              present in the State of North Carolina and who is
              physically or mentally incapacitated due to mental
              retardation, cerebral palsy, epilepsy or autism; organic
              brain damage caused by advanced age or other physical
              degeneration in connection therewith; or due to conditions
              incurred at any age which are the result of accident,
              organic brain damage, mental or physical illness, or
              continued consumption or absorption of substances.

N.C. Gen. Stat. § 108A-101(d) (2017).2            Upon reasonable determination “that a

disabled adult is being [] neglected . . . and lacks capacity to consent to protective



       2This definition was amended in 2019 by Session Law 76 and went into effect on 1 October
2019. See S.L. 2019-76, § 14. The amended statute defines “disabled adult” as follows:

              The words “disabled adult” shall mean any person 18 years of age or
              over or any lawfully emancipated minor who is present in the State of
              North Carolina and who is physically or mentally incapacitated due to
              an intellectual disability, cerebral palsy, epilepsy or autism; organic
              brain damage caused by advanced age or other physical degeneration
              in connection therewith; or due to conditions incurred at any age which
              are the result of accident, organic brain damage, mental or physical
              illness, or continued consumption or absorption of substances.



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services,” N.C. Gen. Stat. § 108A-105(a) authorizes the Department to “petition the

district court for an order authorizing the provision of protective services.” N.C. Gen.

Stat. § 108A-105(a) (2017). Subsection (a) goes on to require, “[t]he petition must

allege specific facts sufficient to show that the disabled adult is in need of protective

services and lacks capacity to consent to them.” Id. (emphasis added). Subsection (a)

does not elaborate on what “specific facts” must be alleged in the petition. See id.

       Subsection (c) then provides:

              If, at the hearing, the judge finds by clear, cogent, and
              convincing evidence that the disabled adult is in need of
              protective services and lacks capacity to consent to
              protective services, he may issue an order authorizing the
              provision of protective services. This order may include the
              designation of an individual or organization to be
              responsible for the performing or obtaining of essential
              services on behalf of the disabled adult or otherwise
              consenting to protective services in his behalf. Within 60
              days from the appointment of such an individual or
              organization, the court will conduct a review to determine
              if a petition should be initiated in accordance with Chapter
              35A; for good cause shown, the court may extend the 60 day
              period for an additional 60 days, at the end of which it shall
              conduct a review to determine if a petition should be
              initiated in accordance with Chapter 35A. No disabled
              adult may be committed to a mental health facility under
              this Article.

Id. § 108A-105(c).




N.C. Gen. Stat. § 108A-101(d) (2019) (emphasis added). Neither party suggests that the amendment
to the definition of “disabled adult,” which replaced the phrase “mental retardation,” with “an
intellectual disability,” see S.L. 2019-76, § 14, is relevant to the disposition of this appeal.

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      “When the trial court sits without a jury, the standard of review for this Court

is whether there was competent evidence to support the trial court’s findings of fact

and whether its conclusions of law were proper in light of such facts.” State v. Dunn,

200 N.C. App. 606, 608, 685 S.E.2d 526, 528 (2009) (citation omitted).

      Respondent suggests that the definition of “disabled adult . . . in need of

protective services” in N.C. Gen. Stat. § 108A-101(e) offers guidance on the specific

facts that must be alleged under § 108A-105(a) for a court to enter an order

authorizing the provision of protective services under § 108A-105(c). Section 108A-

101(e) provides:

             A “disabled adult” shall be “in need of protective services”
             if that person, due to his physical or mental incapacity, is
             unable to perform or obtain for himself essential services
             and if that person is without able, responsible, and willing
             persons to perform or obtain for his essential services.

N.C. Gen. Stat. § 108A-101(e) (2017). Respondent argues that the petition § 108A-

105(a) authorizes the Department to file must contain “specific facts” indicating that

he was “without able, responsible, and willing persons to perform or obtain for his

essential services,” quoting the language of § 108A-101(e).

      Respondent goes further than arguing that read together, N.C. Gen. Stat.

§§ 108A-105(a) and 108A-101(e) create a pleading requirement for petitions for

authorization of the provision of protective services, however. Not only does § 108A-

101(e) supply the standard against which the “specific facts” required to be alleged



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by § 108A-105(a) must be measured, according to Respondent; the statutes read

together establish a standard that is a jurisdictional prerequisite to a trial court’s

disposition of a petition for protective services. Respondent thus contends that the

definition in § 108A-101(e) of “disabled adult . . . in need of protective services”

combined with the authorization in § 108A-105(a) of the Department to petition for

authorization to provide protective services creates a jurisdictional prerequisite

similar to the verification requirement of N.C. Gen. Stat. § 7B-1104, applicable to

petitions for termination of parental rights under the Juvenile Code. See, e.g., In re

C.M.H., 187 N.C. App. 807, 809, 653 S.E.2d 929, 930 (2007) (holding that trial court

lacked subject matter jurisdiction where petition for termination of parental rights

failed to comply with verification requirement of N.C. Gen. Stat. § 7B-1104).

Respondent posits that the absence of sufficient details in the petition about

individuals “able, responsible, and willing [] to perform or obtain . . . essential

services” for a disabled adult deprives the trial court of subject matter jurisdiction to

find “that the disabled adult is in need of protective services and lacks capacity to

consent to protective services,” and enter “an order authorizing the provision of

protective services.” N.C. Gen. Stat. § 108A-105(c) (2017). We disagree.

      “Determined to protect the increasing number of disabled adults in North

Carolina who are abused, neglected, or exploited, the General Assembly enact[ed] []

[the Protection of Abused, Neglected, or Exploited Disabled Adult Act (the “Act”)] to



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provide protective services for such persons.” N.C. Gen. Stat. § 108A-100 (2017).

Notably, the language of subsection (a) of N.C. Gen. Stat. § 108A-105, the provision

of the Act requiring “specific facts” to be alleged in a petition for protective services

before a court may “issue an order authorizing the provision of protective services,”

id. § 108A-105(c), does not contain a requirement that these allegations be verified,

unlike a petition for termination of parental rights under N.C. Gen. Stat. § 7B-1104.

See N.C. Gen. Stat. § 7B-1104 (2017) (“The petition . . . shall be verified by the

petitioner[.]”).   Instead, under § 108A-105(a), the petition need only contain

allegations “sufficient to show that the disabled adult is in need of protective services

and lacks capacity to consent to them.”        Id. § 108A-105(a).   Endorsing the rule

advocated by Respondent would thus create a requirement unsupported by the text

of § 108A-105.

       Imposing such a requirement would also introduce practical challenges that

undermine the Act’s purpose. Grafting the definition provided by § 108A-101(e) onto

the requirement of § 108A-105(a) to “allege specific facts” would impose a potentially

more difficult to manage burden on the Department when petitioning for protective

services under § 108A-105 than the Department bears when petitioning for

termination of a parent’s rights to a minor child under § 7B-1104. Rule 11(b) of the

North Carolina Rules of Civil Procedure, the legal standard applicable to whether the

verification requirement of § 7B-1104 has been met, In re Triscari, 109 N.C. App. 285,



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287, 426 S.E.2d 435, 436-37 (1993), requires that the verification “state in substance

that the contents of the pleading verified are true to the knowledge of the person

making the verification, except as to those matters stated on information and belief,

and as to those matters he believes them to be true.” N.C. Gen. Stat. § 1A–1, Rule

11(b) (2017). Determining whether the standard articulated in the definition of

“disabled adult . . . in need of protective services” had been met would be much less

straightforward than comparing the verification of a petition for termination of

parental rights to the language of Rule 11(b) to confirm compliance with § 7B-1104.

      A comparison of § 108A-101(e) to a petition for protective services would not

quickly resolve the question of whether there had been compliance with the rule

advocated by Respondent because of the language used in § 108A-101(e), which

contains certain indefinite terms. See id. § 108A-101(e) (referring to an indefinite

number of “persons to perform or obtain . . . essential services” in defining “disabled

adult . . . in need of protective services”) (emphasis added). Compliance with such a

rule would presumably require an undefined number of people to be identified and

details about these people to be set out in allegations in a petition for protective

services as a prerequisite to the disposition of the petition by the trial court. It is

unclear how compliance with such a rule could be confirmed by a court disposing of a

petition for protective services or a court reviewing such a disposition. What is more,

compliance with this jurisdictional pleading requirement would be dependent upon



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the sufficiency of allegations to meet an indefinite standard, rendering the rule

difficult to administer.   Adopting such an interpretation of the rule is not only

unsupported by the text of the relevant statute, N.C. Gen. Stat. § 108A-105, but also

would undermine the purpose of the Act.

      For a trial court to enter “an order authorizing the provision of protective

services,” N.C. Gen. Stat. § 108A-105(c), a petition for protective services need not

specify facts about individuals “able, responsible, and willing [] to perform or obtain

. . . essential services,” id. § 108A-101(e). A fair reading of the provisions of Article 6

of Chapter 108A of the General Statutes do not support grafting the definition of

“disabled adult . . . in need of protective services,” id., onto the requirement to “allege

specific facts” in a petition for protective services, id. § 108A-105(a), or holding that

such a requirement is jurisdictional. Accordingly, we overrule this argument.

                               B. Sufficiency of Findings

      Respondent next argues that the trial court failed to make sufficient findings

of fact to support its conclusions that he was a disabled adult in need of protective

services. Specifically, Respondent contends that use of the February 2012 version of

form AOC-CV-773, developed by the North Carolina Administrative Office of the

Courts, failed to satisfy the specificity required of factual findings for an order

authorizing protective services where the order contained only one handwritten




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factual finding by the trial judge and the rest of the findings were type-written. We

disagree.

      As noted previously, § 108A-105(a) provides that

             [i]f the director [of the Department] reasonably determines
             that a disabled adult is being abused, neglected, or
             exploited and lacks capacity to consent to protective
             services, then the director may petition the district court
             for an order authorizing the provision of protective
             services. The petition must allege specific facts sufficient
             to show that the disabled adult is in need of protective
             services and lacks capacity to consent to them.

N.C. Gen. Stat. § 108A-105(a) (2017) (emphasis added). The court may enter an order

authorizing the provision of protective services “[i]f . . . the judge finds by clear,

cogent, and convincing evidence that the disabled adult is in need of protective

services and lacks capacity to consent to protective services[.]” Id. § 108A-105(c). A

trial court’s order, however, need only include “specific findings of the ultimate facts,”

not the subsidiary or evidentiary facts whose proof may be required to establish the

ultimate facts. Kelly v. Kelly, 228 N.C. App. 600, 606-07, 747 S.E.2d 268, 276 (2013)

(citation omitted).

      We hold that the trial court’s order in this case contained specific findings of

the ultimate facts to show that Respondent was a disabled adult in need of protective

services who lacked capacity to consent to protective services. The trial court’s order

reads as follows:

             This matter comes on for hearing on the Petition for Order


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Authorizing Protective Services filed under the statutory
authority of the director of the county department of social
services. Based on the record, testimony and other
evidence presented to the Court, the Court makes the
following findings of fact by clear, cogent and convincing
evidence:

1.    The respondent is

A resident of this county or can be found in this county.

A disabled adult 61 years of age . . . present in the State of
North Carolina and is physically or mentally incapacitated
as defined in G.S. 108A-101(d).

2.     The petition was filed on [] 10/3/2018 and
respondent was served pursuant to G.S. 1A-1, Rule 4(j) on
[] 10/5/2018.

3.    The respondent is in need of protective services due
to physical or mental incapacity and unable to obtain
essential services without a willing, able and responsible
person to perform or obtain essential services. The
respondent is in need of protective services in that: the
Respondent lacks capacity and is unable to make a safe
discharge plan.

4.     The respondent lacks the capacity to consent to the
provision of protective services.

Based on the findings of fact, the Court concludes that:

1.     This matter is properly before the Court and the
District Court has jurisdiction over the subject matter and
over the respondent.

2.     Respondent is a disabled adult in need of protective
services and lacks the capacity to consent to such services
as required by G.S. 108A-105.



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             3.    It is in the best interest of the respondent that this
             order be entered.

             It is ORDERED:

             1.     That Pitt County Department of Social Services is
             authorized to provide or consent to, without further orders
             of the Court, the essential services set out in G.S. 108A-
             1010(i).

             2.     That this order shall remain in effect for 60 days
             unless:
                a. Protective services are no longer needed;
                b. The respondent regains capacity to consent to the
                provision of protective services;
                c. A guardian of the person or general guardian has
                qualified; or
                d. For good cause shown the Court extends the order
                for up to 60 additional days at the end of which time the
                order expires.

             3.    This Matter shall be reviewed, unless previously
             dismissed, without further notice to the parties on []
             12/4/2018 at [] 2:00 pm in Courtroom DC04 to determine
             whether a petition should be filed for guardianship
             pursuant to G.S. Chapter 35A.

While it is true, as Respondent contends, that the trial court used form AOC-CV-773

developed by the North Carolina Administrative Office of the Courts in authorizing

the Department to provide protective services, and only one of the factual findings of

the trial court on this form was handwritten, we hold that the order contained

ultimate findings of sufficient specificity to authorize the Department to provide

protective services. This argument is overruled.

                                   III. Conclusion


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      We hold that the trial court had subject matter jurisdiction to authorize the

provision of protective services and that the trial court’s order authorizing the

provision of protective services contained ultimate factual findings of sufficient

specificity to support its conclusions of law, which in turn justified the relief awarded

by the court in the decretal portion of its order. We affirm the order of the trial court

authorizing the provision of protective services.

      AFFIRMED.

      Judges BRYANT and TYSON concur.




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