An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                 NO. COA13-837
                        NORTH CAROLINA COURT OF APPEALS
                             Filed:      7 January 2014

IN THE MATTER OF:
                                               Mecklenburg County
                                               No. 12 SPC 66-RAM
POSHA WHATLEY



      Appeal by respondent from order entered 13 February 2013 by

Judge   Regan    A.    Miller    in    Mecklenburg    County     District   Court.

Heard in the Court of Appeals 9 December 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Charlene Richardson, for Petitioners-Appellee.

      Appellate  Defender          Staples S.  Hughes, by Assistant
      Appellate Defender           John F. Carella, for Respondent-
      Appellant.


      ERVIN, Judge.


      Respondent appeals from an order involuntarily committing

her for inpatient mental health care for a period not exceeding

fifteen days and for an additional period of outpatient care not

to exceed ninety days.           On appeal, Respondent argues that the

trial    court’s      findings    of    fact   relating     to    the   issue     of

dangerousness to herself and others lack adequate evidentiary

support.     After careful consideration of Respondent’s challenges
                                            -2-
to   the     trial     court’s     order    in    light    of    the    record   and    the

applicable law, we conclude that the trial court’s order should

be vacated.

                               I. Factual Background

                                 A. Substantive Facts

                              1. Pre-Hearing Reports

       As    of    5   January     2012,    Dr.    Amishi       Shah    determined     that

Respondent was bipolar; had been admitted to the hospital “with

psychosis         while   taking     care    of    her    2     month   old”;    remained

“disorganized,         paranoid,”       “refus[ed       her]     meds   at   times,”    and

“clearly         represents    [a]    danger       if    not     treated.”1      On     the

following day, Dr. Noel Ibanez stated that Respondent “continues

to exhibit bizarre, psychotic behavior [and an] inability to

care       for   [her]self”;     that      she    had    “poor    insight     [and]    poor

impulse control”; and that she “[p]laced herself directly at

risk of harm.”            As of 12 January 2012, Dr. Shah expressed the

opinion that Respondent “remain[ed] paranoid” and “disorganized”

with “poor insight[, and] judgment”; that she had “initially

presented as manic [and] psychotic while caring for two month
       1
      On the same date, Dr. Shah signed an examination report in
which she stated that Respondent had a history of bipolar
disorder; that she had been admitted to the hospital “with
psychosis, erratic behavior, and inability to care for [her] 2
month old”; that she “remain[ed] provocative” and “paranoid”;
that she “periodically refus[ed her] medications”; and that she
had “very poor insight [and] judgment and requir[ed] continued
inpatient treatment.”
                                         -3-
old”;     that     “[s]he     need[ed]    continued         inpatient      stay   for

medication stabilization”; and that she was “clearly at risk to

[her]self if discharged too soon.”             On 18 January 2012, Dr. Shah

concluded that Respondent, who had “a h[istory] of [b]ipolar

d[isorder,]” had been “admitted [with] psychosis while taking

care of her two month old son”; that she “remain[ed] paranoid,

disorganized, [and] intrusive”; that “[s]he tells me that she

does not plan to follow up as an outpatient”; and that she had

“very poor insight, judgment and needs continued stabilization.”2

                    2. Evidence in Support of Petition

                             a. Dr. Shah’s Testimony

      At the evidentiary hearing held before the trial court, Dr.

Shah testified that Respondent “was initially hospitalized for a

manic episode with [post-partum] psychosis”; that she had “left

her child at home”; and that “[s]he was brought in . . . by her

sister because she was displaying psychotic . . . behavior that

was putting herself and her child at risk.”                    More specifically,

Dr.     Shah     diagnosed     Respondent      as        suffering   from     bipolar

disorder,      which   is     characterized         by     “mania    and    psychotic

features.”       At the time of her initial admission, Respondent was
      2
      As best we have been able to determine from our examination
of the record, none of the reports summarized in this portion of
our opinion were admitted into evidence at the hearing held
before the trial court in this proceeding despite the fact that
the admission of properly certified expert reports is authorized
by N.C. Gen. Stat. § 122C-268(f).
                                         -4-
“very     disorganized,     paranoid,”         and    “more   focused     on     being

potentially dyslexic and feeling like she has ADD rather than

focusing on . . . the more acute mental illness issues that are

impacting her functioning.”              According to Dr. Shah, Respondent

remained “manic and psychotic” and the treating physicians were

“continuing      to   adjust   her       medications,”        having     “had    some

difficulty finding the right medication [regimen] for her.”                        In

fact, Dr. Shah had adjusted Respondent’s medication on the date

of the hearing.          Dr. Shah testified that Respondent “ha[d] a

history    of    non-compliance     to    treatment”        and   had   been    “quite

guarded    and   hesitant   about    even       following     through    with    this

treatment,” a fact “which g[ave Dr. Shah] additional cause for

concern about discharging her too soon.”                      However, Dr. Shah

acknowledged      that    Respondent       had       been   compliant     with    her

medication regimen for the last one to two weeks.                        When asked

why she thought that Respondent posed a danger to herself, Dr.

Shah stated that she did not “think that she’s thinking clearly

enough to be able to care for herself as an outpatient right

now,” with Dr. Shah having reached this conclusion based on “her

behavior,” the fact that “[s]he remains . . . very disorganized

in her speaking” and “in her behavior,” and her inability to

“imagine that [Respondent] could take her medications on her

own.
                                                -5-
                        b. Statements of Respondent’s Sister

       After the conclusion of Dr. Shah’s testimony and before the

presentation of Respondent’s evidence, the trial court asked,

“with whom is [Respondent] living right now.”                                In response to

additional            questions    posed    by    the        trial    court,      Respondent’s

sister, Nadia Campbell, stated that Respondent had been living

with       her   husband     before       the    present       proceeding         began,    that

Respondent’s            husband    was     “running      from        the    law,”    that     Ms.

Campbell brought Respondent to the hospital, and that, on the

occasion         in    question,    Ms.    Campbell          had     come   to    Respondent’s

house at about 9:00 p.m., that Respondent was sitting on her

couch with the front door open, that Respondent’s child was

shaking, and that Respondent claimed to be ready to go to an

appointment.3

                              3. Respondent’s Evidence

       Respondent         testified       that,       upon    release,      she     planned    to

live with her husband’s aunt and uncle, who made their home in

Georgia and were keeping her infant child.                             Respondent disputed

the validity of Dr. Shah’s concern that she would not “comply

with outpatient treatment,” stating that she and her husband,

who also suffered from a mental illness, would “both together
       3
      The record does not contain any indication that either Ms.
Campbell or Respondent’s mother, who also participated in this
and a later colloquy with the trial court, were ever sworn or
made subject to cross-examination.
                                           -6-
monitor each other’s medications and go to doctors together.”

According to Respondent, she could call on her husband and take

advantage of assistance offered by other family members.

                  4. Conclusion of the Evidentiary Hearing

       After the completion of Respondent’s testimony, the trial

court     inquired         if   “anyone     else    want[ed]     to    provide    any

information.”         In response to this inquiry, Respondent’s mother

stated, over an objection lodged by Respondent’s trial counsel,

that Respondent had failed to take her medication two or three

years earlier.         After Respondent responded to this assertion by

stating that her family had taken “everything away from [her] at

that time,” Respondent’s trial counsel requested to be heard,

after     which      the    trial   court     heard    a   final      argument    from

Respondent’s trial counsel and announced its decision.

                                B. Procedural History

       On 5 January 2012,           Dr. Shah       submitted an affidavit and

petition seeking to have Respondent involuntarily committed and

conducted      the     necessary        initial    evaluation.         A   magistrate

entered an order involuntarily committing Respondent later that

day.     After a second evaluation conducted on the following day,

Dr.     Shah   determined        that     Respondent    was    mentally     ill   and

dangerous to herself.            After a commitment hearing was scheduled

for 13 January 2012, Dr. Shah conducted another evaluation of
                                                 -7-
Respondent        on     the     day     prior       to    the     scheduled          hearing       and

recommended       that      Respondent         be    involuntarily               committed      for   a

period      of   thirty        days      on    the     grounds            that    Respondent        was

paranoid and “clearly at risk to [her]self.”

      At Respondent’s request, the 13 January 2012 hearing was

continued        until      18    January        2012.           On       the    morning      of   the

rescheduled       hearing,         Dr.    Shah      evaluated         Respondent          again     and

recommended       that      she    be     committed         for       a    fifteen      day     period

followed by a period of outpatient treatment given Respondent’s

statement that she did not plan to participate in outpatient

treatment; “remain[ed] paranoid, disorganized, [and] intrusive;”

had taken care of her two-month old son while psychotic; and

“need[ed] continued stabilization.”                        At the conclusion of the 18

January 2012 hearing, the trial court entered an order providing

that Respondent be involuntarily committed on an inpatient basis

for   a     period     of   fifteen          days    and    that      she        be   involuntarily

committed on an outpatient basis for an additional period not to

exceed ninety days.                Respondent noted an appeal to this Court

from the trial court’s order.

      On 18 December 2012, this Court filed an opinion reversing

the trial court’s order and remanding this case to the trial

court for further proceedings not inconsistent with our opinion

on    the    grounds        that       the     trial       court          had    failed    to      make
                                             -8-
sufficient       findings        of     fact       to    support    its        involuntary

commitment decision.         On 13 February 2013, without receiving any

additional      evidence    or        hearing    additional       arguments      from    the

parties, the trial court entered an order containing additional

findings    of    fact     and    concluding            that   Respondent       should    be

involuntarily committed on an inpatient basis for a period of

fifteen days and that she should be involuntarily committed on

an   outpatient    basis     for       an    additional        period    not    to    exceed

ninety days.      Respondent noted an appeal to this Court from the

trial court’s order on remand.

                                 II. Legal Analysis

      In   her   brief,     Respondent          argues     that    the   trial       court’s

order lacks adequate evidentiary support.                          More specifically,

Respondent argues that the record does not support the trial

court’s determination that she posed a danger to herself or

others     as    required    by        the      relevant       statutory       provisions.

Respondent’s argument has merit.

                             A. Standard of Review

      The standard of review utilized in reviewing involuntary

commitment orders is well-established.

            On appeal of a commitment order our function
            is to 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 or
                                        -9-
             others   were   supported   by   the  “facts”
             recorded in the order.    In re Underwood, 38
             N.C. App. 344, 347-48, 247 S.E.2d 778, 781
             (1978); In re Hogan, 32 N.C. App. 429, 433,
             232 S.E.2d 492, 494 (1977).        We do not
             consider     whether    the    evidence    of
             respondent’s      mental      illness     and
             dangerousness    was   clear,    cogent   and
             convincing. It is for the trier of fact to
             determine whether the competent evidence
             offered in a particular case met the burden
             of proof.    In re Underwood, supra, at 347,
             247 S.E.2d at 781.

In re Collins, 49 N.C. App. 243, 246, 271 S.E.2d 72, 74 (1980).

Thus, the ultimate issue that we must resolve in this case is

whether the trial court’s findings that Respondent was dangerous

to herself and others had adequate evidentiary support.

             B. Overview of Involuntary Commitment Process

       The   involuntary   commitment         process   is   initiated         by   the

execution    of   an   affidavit    and   the     submission    of       a   petition

alleging that the respondent is mentally ill and a danger to

herself or others as those terms are defined in the relevant

statutory provisions.       N.C. Gen. Stat. § 122C-261(a).                   Assuming

that the reviewing magistrate or clerk believes, based upon an

examination of the petition and the affidavit, that there are

reasonable grounds for believing that the respondent is mentally

ill,   the   respondent    may     be   ordered    to   undergo      a       mandatory

evaluation.       N.C. Gen. Stat. § 122C-261(a)-(b).              In the event

that the person conducting the evaluation concludes that the
                                            -10-
respondent is mentally ill and a danger to either herself or

others,       the   evaluator        must    set   out     the     basis       for    this

determination       in   writing       and    recommend     that    the    respondent

receive inpatient commitment.                N.C. Gen. Stat. § 122C-263(d)(2).

A second evaluation must be conducted within twenty-four hours

of the respondent’s arrival at the inpatient facility to which

he or she was committed.              Assuming that the respondent is found

to be mentally ill and a danger to herself or others at this

second    evaluation,         the    respondent     must    be     held    until      the

commitment hearing.          N.C. Gen. Stat. § 122C-266(a)(1).

       “To support an inpatient commitment order, the court shall

find     by    clear,    cogent,       and    convincing     evidence          that   the

respondent is mentally ill and dangerous to self, as defined in

[N.C. Gen. Stat. §] 122C-3(11)a, or dangerous to others, as

defined in [N.C.         Gen. Stat. §] 122C-3(11)b,” with the court

being required to “record the facts that support its findings.”

N.C.   Gen.     Stat.    §    122C-268(j).         According       to    the    relevant

statutory provisions:

              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
                    -11-
               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.     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[.]

                  . . . .

     Previous episodes of dangerousness to
     self,    when   applicable,  may    be
     considered when determining reasonable
     probability of physical debilitation,
     suicide, or self-mutilation.

b.   “Dangerous to others” means 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 . . .
                                 -12-
                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).

    In our initial opinion in this case, we noted that:

           The trial court here found the following
           facts “by clear, cogent and convincing
           evidence”:

                Respondent  was   exhibiting   psychotic
                behavior that endangered her and her
                newborn child.  She is bipolar and was
                experiencing a manic stage.     She was
                initially noncompliant in taking her
                medications but has been compliant over
                the past 7 days.   Respondent continues
                to exhibit disorganized thinking that
                causes her not to be able to properly
                care for herself.     She continues to
                need medication monitoring.   Respondent
                has   been   previously    involuntarily
                committed.

In re Whatley, __ N.C. App. __, __, 736 S.E.2d 527, 530 (2012).

After noting that the trial court appeared to have sought to

incorporate Dr. Shah’s 18 January 2012 report into its order by

reference, we assumed, without deciding, that the contents of

this report should be treated as additional findings of fact,

stating:

           This   report   set    forth   the   following
           findings:
                                        -13-
                      Patient admitted [with] psychosis while
                      taking care of her two month old son.
                      She   has   a   [history   of]   Bipolar
                      [disorder].     She remains paranoid,
                      disorganized, intrusive.   She tells me
                      that she does not plan to follow up as
                      an outpatient.      She has very poor
                      insight   [and]   judgment   and   needs
                      continued stabilization.

Id. (alterations in original).                 After noting the nature and

extent    of    the     trial    court’s     findings,     we   held    that,       “even

assuming    that       the   trial   court    successfully       incorporated        the

contents of Dr. Shah’s 18 January 2012 report into its order,

the     order    was     still    insufficient       to    support      Respondent’s

involuntary      commitment”      because     “[e]ach      of   the    trial   court’s

findings pertain[ed] to either Respondent’s history of mental

illness    or     her    behavior    prior      to   and    leading      up    to    the

commitment        hearing”        without       “indicat[ing]           that        these

circumstances rendered Respondent a danger to herself in the

future.”       Id. at __, 736 S.E.2d at 530-31.

      In its order on remand, the trial court found as a fact

that:

               1.   [A]ll   matters   set   forth in  the
               physician report by Dr. Shah dated January
               18, 2012 and the report [are] incorporated
               herein by reference as findings.

               2.   At the time of admission, Respondent
               was   exhibiting  psychotic  behavior  that
               endangered her and her newborn child.   The
               child had to be removed from her custody by
               family members because of her inability to
                                          -14-
                care for the child. She is bipolar and was
                experiencing a manic stage.          She was
                initially   noncompliant    in   taking  her
                medications   and  her   condition   had not
                stabilized, although she has been compliant
                over the past seven (7) days.

                3.   Respondent    continues    to    exhibit
                disorganized thinking that causes her not to
                be able to properly or safely care for
                herself or her child.    Respondent continues
                to need further medication monitoring to
                establish the correct dosage before being
                released from the hospital.

                4.   Respondent    has             been        previously
                involuntarily committed.

                5.   Respondent     remains     paranoid    and
                continues to have very poor insight into the
                nature and extent of her mental illness.
                Her   failure    to    continue    taking   the
                prescribed medication in the correct dosage
                presents   a   threat   of   serious   physical
                debilitation in the near future that will
                endanger   her   and   creates   a   reasonable
                probability in the future of a repetition of
                the grossly irrational behavior that created
                a substantial risk of serious harm to her
                two-month-old child.

Thus,     the     ultimate      issue    before    us     is   whether       the   record

contains sufficient evidence to support these findings, in which

the   trial       court   essentially       determined         that    Respondent      was

dangerous       to   herself     or     others    based    upon       her   “failure   to

continue        taking    the    prescribed       medication          in    the    correct

dosage.”4


      4
      A principal pillar underlying the State’s argument that the
record contained sufficient evidence to support the trial
                                               -15-
      At    the    hearing,         Dr.    Shah       testified      that    (1)   she   was

continuing to adjust Respondent’s medications; (2) it had been

difficult to develop a proper medication regimen for Respondent;

(3) she had increased the amount of medication that Respondent

was     supposed      to    consume       on    the     day     of   the    hearing;     (4)

Respondent had been compliant with her medication regimen for

between seven and fourteen days; and (5) she did not believe,

based upon statements that Respondent had made to her,                                   that

Respondent would take her medication on her own.                            Although this

evidence might suffice to show that there was some risk that

Respondent would fail to comply with her medication regimen and

although it might be reasonable to infer that Respondent and her

child    would     be      better    off       if     she   took     her    medication    as

prescribed, the record before us is completely devoid of any

information concerning the results which one might reasonably

expect     in   the     event   that      Respondent          took   her    medication    as

court’s “danger to self or others” determination assumes that
the statements by Respondent’s sister and mother during the
course of the hearing should be treated as properly admitted
evidence. Although the parties have vigorously disputed whether
the State’s assumption that the statements made by Respondent’s
sister and mother should be deemed to be part of the evidentiary
record, we need not resolve that issue given that the finding in
question refers to Respondent’s “behavior prior to and leading
up to the commitment hearing,” a factor which is “not [an]
indicat[ion] that these circumstances rendered Respondent a
danger to herself [or her child] in the future,” Whatley, __
N.C. App. at __, 736 S.E.2d at 531, and given that we have
concluded that the trial court’s order should be vacated on
other grounds.
                                       -16-
intended or the impact which any failure on Respondent’s part to

comply with her medication regimen would have upon her ability

to avoid seriously debilitating herself or inflicting serious

bodily injury upon her child.            In the absence of such evidence,

we are unable to see how the trial court had an adequate basis

for   concluding     that   serious    physical    debilitation     or   serious

bodily injury was likely to result from any non-compliance on

Respondent’s part with her medication regimen.                    Although the

State argues that such deleterious results can be inferred from

the fact that Respondent was psychotic and that she had exposed

her child to the cold, that argument effectively asks us to

speculate    about    subjects       which    should   be   addressed    in   the

testimony received at the hearing.                As a result, we conclude

that the trial court’s findings of fact concerning the extent to

which     Respondent’s      mental    condition    made     her   dangerous    to

herself or others lack adequate record support, a determination

which requires us to vacate the trial court’s order.5                     In re

Salem, 31 N.C. App. 57, 62, 228 S.E.2d 649, 652 (1976) (vacating

an involuntary commitment order which this Court found to lack

sufficient evidentiary support).

      5
      Although Respondent has advanced additional constitutional
and evidentiary challenges to the trial court’s remand order, we
need not address these arguments in light of our decision to
vacate the trial court’s remand order on the grounds set forth
in the text of this opinion.
                                     -17-
                              III. Conclusion

    Thus,    we    conclude   that    the    record   developed   before    the

trial court does not suffice to permit a determination that

Respondent should be subject to involuntary commitment.                    As a

result,    the    trial   court’s    order   should   be,   and   hereby    is,

vacated.

    VACATED.

    Chief Judge MARTIN and Judge MCCULLOUGH concur.

    Report per Rule 30(e).
