                            NO. COA14-143

                    NORTH CAROLINA COURT OF APPEALS

                       Filed:   2 September 2014


In the matter of:

JAMES SPENCER                        Wake County
                                     No. 13 SPC 3751



     Appeal by respondent from order entered 25 July 2013 by

Judge Debra Sasser in Wake County District Court.      Heard in the

Court of Appeals 11 August 2014.


     Attorney General Roy Cooper, by Assistant Attorney General
     Josephine Tetteh, for the State.

     Parker Poe Adams & Bernstein LLP, by Matthew W. Wolfe and
     Robert A. Leandro, for petitioner-appellee Holly Hill
     Hospital.

     Appellate   Defender  Staples   S.   Hughes,  by     Assistant
     Appellate Defender Mary Cook, for respondent.


     McCULLOUGH, Judge.


     Respondent James Spencer appeals from an order of the trial

court, involuntarily committing him to inpatient treatment for a

period not to exceed sixty (60) days.         Based on the reasons

stated herein, we affirm the order of the trial court.

                           I.   Background
                                       -2-
    On 20 July 2013, Dr. Sharyn Comeau of Wake Med Hospital

filed   an   affidavit     and    petition    for    involuntary    commitment,

providing that respondent James Spencer was “mentally ill and

dangerous to self or others or mentally ill and in need of

treatment     in     order       to   prevent       further     disability   or

deterioration that would predictably result in dangerousness.”

The affidavit stated that respondent

             has ongoing psychosis and hyper religiosity
             concerning the mark of the beast and people
             in authority being satanic in some way. He
             continues to make decisions that compromise
             his medical care, currently his sodium [is]
             compromised to the point of needing medical
             intervention.      He   has  multiple  past
             psychiatric hospitalizations and he has a
             sister who his his [sic] guardian t in part
             [sic] of his medically compromising his
             health due to his lack of judgment and
             insight. He cannot be safely released into
             the community at this time.

On the same day, Dr. Comeau also completed an “Examination and

Recommendation        to     Determine       Necessity        for   Involuntary

Commitment.”       Dr. Comeau opined that respondent was mentally ill

and dangerous to himself, and recommended inpatient commitment

for ten (10) days.         On 22 July 2013, respondent was admitted to

Holly Hill Hospital.

    A hearing was held at the 25 July 2013 session of Wake

County District Court.           Dr. Muhammed Saeed, a psychiatrist at
                                         -3-
Holly Hill Hospital, testified that he had examined respondent

on   23   July   2013.       Dr.   Saeed    described       respondent     as   “very

psychotic, very paranoid, very agitated, not caring for self.”

Dr. Saeed stated that respondent had multiple medical problems,

but that the “most concerning is hyponatremia” which if it is

not treated, could be life threatening.                    Dr. Saeed opined that

respondent was mentally ill and suffering from schizophrenia.

Respondent       displayed     extreme          paranoid       ideation,     somatic

delusions, and grandiose delusions.                 Dr. Saeed testified that

respondent was unable to care for himself as demonstrated by his

inability to restrict his fluid intake and his refusal to take

his medication the two previous days.                   Dr. Saeed testified that

he   believed     respondent       was     in    need     of   further     inpatient

treatment at Holly Hill Hospital and recommended a commitment of

sixty (60) days.

      Respondent    testified      at    the    hearing.        Respondent      agreed

that he suffered from schizophrenia but did not think he needed

inpatient treatment and should have been discharged from Holly

Hill Hospital.

      On 25 July 2013, the trial court entered an involuntary

commitment order.        The trial court found by clear, cogent and

convincing evidence that
                     -4-
THE RESPONDENT CONTESTS COMMITMENT.         The
respondent acknowledges and recognizes that
he suffers from a mental illness, that being
schizophrenia.   Symptoms include psychotic
behavior (somatic delusions and grandiose
delusions) and extreme paranoid behavior as
well as agitation.   However, the respondent
does not appreciate the degree of his
paranoia,   and   this    has     resulted   in
situations   wherein   he     has    threatened
physical aggression in response to medical
treatment.

The respondent suffers from hyponatremia.
Low sodium levels can be a life threatening
situation.   The respondent disagrees with
his health care provider’s assessment of his
sodium levels. The respondent has been told
to intake no more than 1 liter of fluid,
which is about one quart (or 32 ounces).
While the respondent is trying to . . .
monitor his fluid intake, he believes that
he can consume 56 ounces of fluid (7 eight-
ounce cups).

Since his June 21, 2013 initial admission to
Holly Hill, the respondent’s compliance with
medication has been up and down.        Most
recently, for the past two days he has
refused all medication, including medication
to   treat  his   mental   illness  and  his
hyponatremia.    Without medical treatment,
the respondent will suffer from ongoing
psychotic decompensation. The respondent is
not able to appropriately cope with stress,
is not following recommendations, and won’t
cooperate with doctor’s advice.

The respondent has poor insight into his
paranoia and physical health condition. The
respondent’s refusal to take his medication
or   follow  his   health   care   provider’s
instructions    regarding    fluid     intake
demonstrate an inability to satisfy his need
                                       -5-
              for medical care.   The respondent is unable
              to take care of himself without a structured
              environment. He is not currently stable from
              a mental or physical health perspective.
              There is a reasonable probability of the
              respondent’s   suffering   serious  physical
              debilitation within the near future unless
              adequate treatment is given.

Based on the foregoing reasons, the trial court concluded that

respondent      was    mentally      ill     and     dangerous        to    himself.

Respondent was committed to an inpatient facility for a period

not to exceed sixty (60) days.

      On 22 August 2013, respondent filed notice of appeal from

the 25 July 2013 order.

                               II.    Discussion

      On   appeal,     respondent     argues       that   (A)   his    involuntary

commitment was contrary to law because he was not evaluated by a

second physician within 24 hours of admission to the Holly Hill

Hospital in violation of N.C. Gen. Stat. § 122C-266 and that (B)

the   trial    court   erred   by    involuntarily        committing       respondent

where he was not given notice of the commitment proceeding in

violation of N.C. Gen. Stat. § 122C-264.

      Before    addressing     the   merits    of    respondent’s      appeal,    we

first address the preliminary matter of whether his appeal is

moot. Although the sixty (60) day commitment period provided in

the 25 July 2013 order has expired, our Supreme Court has held
                                        -6-
that   “[t]he     possibility   that    respondent’s         commitment    in   this

case might likewise form a basis for a future commitment, along

with other obvious collateral legal consequences, convinces us

that this appeal is not moot.”           In re Hatley, 291 N.C. 693, 695,

231    S.E.2d     633,    635   (1977).         Therefore,       we   hold      that

respondent’s appeal is not moot and address the merits of his

appeal.

                     A.     Examination by a Physician

       Respondent argues that the record does 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.          Respondent admits that while Dr. Saeed

testified that he examined respondent on 23 July 2013, there was

no written record of the examination demonstrating Dr. Saeed’s

findings.       As such, respondent contends that the 25 July 2013

order should be vacated.

       “It   is   well    established    that   when     a    trial   court     acts

contrary to a statutory mandate and a [party] is prejudiced

thereby, the right to appeal the court’s action is preserved,

notwithstanding      [the    party’s]     failure   to       object   at   trial.”

State v. Davis, 364 N.C. 297, 301, 698 S.E.2d 65, 67 (2010)

(citation and quotation marks omitted).
                                 -7-
    N.C. Gen. Stat. § 122C-266 provides that

         (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-2621 or G.S. 122C-2632.     The
               examination shall include but is not
               limited to the assessment specified in
               G.S. 122C-263(c).

         . . . .

         (c)   The findings of the physician and the
               facts on which they are based shall be
               in writing, in all cases.    A copy of
               the findings shall be sent to the clerk
               of superior court by reliable and
               expeditious means.

N.C. Gen. Stat. § 122C-266(a) and (c) (2013).

    Our Court has previously held that “[t]he 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.”      In re Lowery, 110 N.C. App. 67, 70, 428

S.E.2d 861, 863 (1993).



1
  N.C. Gen. Stat. § 122C-262 is entitled “Special emergency
procedure for individuals needing immediate hospitalization.”
2
  N.C. Gen. Stat. § 122C-263 is entitled “Duties of law-
enforcement officer; first examination by physician or eligible
psychologist.”
                                             -8-
       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 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.

                              B.      Notice of Hearing

       Next,    respondent         argues    that    the    trial      court     erred    by

failing to provide respondent with notice of the 25 July 2013

commitment hearing in violation of N.C. Gen. Stat. § 122C-264.

       N.C. Gen. Stat. § 122C-264(c) provides that
                                      -9-
           [n]otice to the respondent, . . . shall be
           given as provided in G.S. 1A-1, Rule 4(j) at
           least 72 hours before the hearing.    Notice
           to other individuals shall be sent at least
           72 hours before the hearing by first-class
           mail postage prepaid to the individual’s
           last known address. G.S. 1A-1, Rule 6 shall
           not apply.

N.C. Gen. Stat. § 122C-264(c) (2013).

    In the present case, the trial court stated at the end of

the 25 July 2013 hearing that “I’ve noted that concern that his

power of attorney was not given the notice that [respondent]

thinks they’re entitled to.”          Nonetheless, the transcript of the

hearing   reveals   that    both     respondent    and   his   attorney      were

present at the hearing.           Respondent was able to testify on his

own behalf.     Most   importantly, respondent has not                argued or

demonstrated that the failure to receive notice of the hearing

resulted in his inability to adequately prepare for the hearing.

Because   respondent       has     failed   to    establish    that     he   was

prejudiced by the failure to receive notice of the 25 July 2013

hearing, his argument is overruled.

                                 III. Conclusion

    Where respondent has failed to demonstrate any prejudice by

the lack of a written record of his second examination by a

physician and by any failure to give respondent notice of the 25

July 2013 hearing, we affirm the order of the trial court.
                         -10-
Affirmed.

Judges STEELMAN and ERVIN concur.
