                 IN THE COURT OF APPEALS OF NORTH CAROLINA

                                             No. COA18-708

                                     Filed: 19 February 2019

Mecklenburg County, No. 17 SPC 7825

IN THE MATTER OF: J.P.S.


      Appeal by respondent from order entered 15 September 2017 by Judge

Tyyawdi M. Hands in Mecklenburg County District Court. Heard in the Court of

Appeals 17 January 2019.


      Attorney General Joshua H. Stein, by Assistant Attorney General John Tillery,
      for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jillian C.
      Katz, for respondent-appellant.


      ZACHARY, Judge.


      J.P.S.1 (“Respondent”) appeals from an Involuntary Commitment Order

entered against him.          Respondent argues that the trial court made insufficient

findings of fact to support its conclusion that Respondent was dangerous to himself

and others. We agree. As a result, the order is vacated and remanded to the trial

court for additional findings of fact.

                                        I.      Background




      1   Given the sensitive nature of this appeal, initials are used to protect Respondent’s identity.
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      After examining Respondent on 6 September 2017, Dr. Kelly Hobgood of

Carolinas Medical Center-Randolph (“CMC-Randolph”) in Charlotte executed an

Affidavit and Petition for Involuntary Commitment alleging that Respondent was “a

substance abuser” who was “mentally ill and dangerous to self or others.” The

magistrate ordered that Respondent be taken into custody on 7 September 2017.

Later that day, Dr. W. Carlton Gay of the Behavioral Health Center at CMC-

Randolph    examined     Respondent      and     completed   an   “Examination      and

Recommendation to Determine Necessity for Involuntary Commitment” form. On the

form, Dr. Gay marked boxes indicating that Respondent was “mentally ill,”

“dangerous to self,” “dangerous to others,” and “a substance abuser.” To support his

conclusions, Dr. Gay included in the “Description of Findings” that Respondent

             [m]aintains that he has 5 military staff members stationed
             around the area giving his [sic] intelligence information to
             help in his lawsuit against York County Court system/jail.
             Has made threatening statements toward the judicial staff
             there in general for the way that he was treated (threat
             made while here). Feels the Constitution provides him
             justification. Prior to coming to ED, he took a large # of
             Valium and Ativan in a suicide attempt.

      A commitment hearing was held on 15 September 2017 before the Honorable

Tyyawdi M. Hands. After hearing testimony, Judge Hands stated that “[b]ased on

the evidence, the Court concludes that Respondent is mentally ill and

is . . . dangerous to either himself and/or others. For those reasons, I enter the order

that he be committed for up to 30 additional days here and for a 90-day outpatient


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order.” In the trial court’s written Involuntary Commitment Order, the trial court

marked boxes indicating that Respondent was mentally ill and dangerous to himself

or others. To support those conclusions, the trial court marked another box that

stated: “Based on the evidence presented, the Court . . . by clear, cogent, and

convincing evidence, finds as facts all matters set out in [Dr. Gay’s 7 September 2017

report], and the report is incorporated by reference as findings.” In addition, the trial

court found the following additional facts in support of involuntary commitment:

             Resp[ondent] followed by [outpatient psychiatrist] where
             he has high dose of Adderall [and] Valium meds. Brought
             by mom—agitated [and] required multiple forced meds
             [and] restraints. Sent texts that he was going to start a
             war [and] had 400 rounds. Has grandiose thoughts. He
             says he is a commander [and] if judge makes wrong
             decision in his court case he will extract the judge [and]
             have his own hearing [and] same [at] Rock Hill PD.
             Refuses to consider reasonable meds for mania [and]
             psychosis. Remains on forced meds [and] is calmer today
             because [of] multiple doses. Resp[ondent] admits he has
             PTSD from Iraq and retired early. Resp[ondent] is
             unhappy about the side effects of the medication including
             feeling very groggy. Resp[ondent] denies mak[ing] the
             comments about the rounds.

      The trial court ordered a thirty-day inpatient commitment for Respondent,

followed by a ninety-day period of outpatient commitment.           Respondent timely

appealed.

                                  II.      Discussion




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                                   Opinion of the Court



      Respondent argues on appeal that the trial court erred in concluding that he

was a danger to himself or others, without making sufficient findings of fact to

support that conclusion. For the reasons explained below, we agree.

      Although Respondent’s Commitment Order has already expired, we note that

the argument before us is not moot because “the challenged judgment may cause

collateral legal consequences for the appellant.” In re Booker, 193 N.C. App. 433, 436,

667 S.E.2d 302, 304 (2008). Such collateral legal consequences might include use of

the judgment to attack the capacity of a trial witness, for impeachment purposes, to

attack the character of a defendant if he has put character in issue, or to form the

basis for a future commitment. In re Hatley, 291 N.C. 693, 695, 231 S.E.2d 633, 635

(1977).

      When deciding whether to involuntarily commit an individual for inpatient

treatment, the trial court must make two specific findings “by clear, cogent, and

convincing evidence.” N.C. Gen. Stat. § 122C-268(j) (2017). First, the trial court must

find “that the respondent is mentally ill.” Id. Second, the trial court must find that

the respondent is “dangerous to self, . . . or dangerous to others.” Id. In its order, the

trial court “shall record the facts that support its findings.” Id.

      Upon review of a commitment order, this Court must “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



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or others were supported by the ‘facts’ recorded in the order.” In re Collins, 49 N.C.

App. 243, 246, 271 S.E.2d 72, 74 (1980). However, “[i]t is for the trier of fact to

determine whether the competent evidence offered in a particular case met the

burden of proof[,]” that is, “whether the evidence of respondent’s mental illness and

dangerousness was clear, cogent and convincing.” Id.

      In the case before us, Respondent specifically challenges the trial court’s

conclusions that Respondent was dangerous to himself and dangerous to others. We

address each in turn.

      A.     Dangerous to Self

      The General Assembly has defined what it means for an individual to be

“dangerous to himself”:

             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 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.


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                          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; or

                    2. The individual has attempted suicide or
                    threatened suicide and that there is a reasonable
                    probability of suicide unless adequate treatment is
                    given pursuant to this Chapter; or

                    3. The individual has mutilated himself or
                    attempted to mutilate himself and that there is a
                    reasonable probability of serious self-mutilation
                    unless adequate treatment is given pursuant to this
                    Chapter.

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

N.C. Gen. Stat. § 122C-3(11)(a). The trial court must find sufficient evidence to

support one of the three prongs of this statute in order to conclude that an individual

is a danger to himself. Id.

      A trial court’s involuntary commitment of a person cannot be based solely on

findings of the individual’s “history of mental illness or . . . behavior prior to and

leading up to the commitment hearing,” but must include findings of “a reasonable

probability” of some future harm absent treatment as required by N.C. Gen. Stat. §

122C-3(11)(a). In re Whatley, 224 N.C. App. 267, 273, 736 S.E.2d 527, 531 (2012).


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Any commitment order that fails to include such findings is “insufficient to support

its conclusions that [the] [r]espondent presented a danger to [himself] and others.”

Id. at 274, 736 S.E.2d at 532.

       In Whatley, the trial court determined that the respondent was a danger to

herself. Id. at 270, 736 S.E.2d at 529. To support that conclusion, the trial court

incorporated the findings from a physician’s report and also made its own findings

regarding the respondent’s mental illness at the time and the events leading up to

her commitment hearing. See id. at 271-72, 736 S.E.2d at 530. On appeal, however,

this Court determined that “the second prong of the ‘dangerous to self’ inquiry [was]

not satisfied [because] none of the [trial] court’s findings demonstrate[d] that there

was a reasonable probability of [the] [r]espondent suffering serious physical

debilitation within the near future absent her commitment.” Id. at 272-73, 736

S.E.2d at 531 (quotation marks and brackets omitted). While the findings “reflect[ed]

[the] [r]espondent’s mental illness, . . . they d[id] not indicate that [the] [r]espondent’s

illness or any of her aforementioned symptoms [would] persist and endanger her

within the near future.” Id. at 273, 736 S.E.2d at 531. As a result, this Court could

not “uphold the trial court’s commitment order on the basis that [the] [r]espondent

was dangerous to herself.” Id.

       Here, the following evidence was presented at the commitment hearing to

support that Respondent was dangerous to himself: (1) Respondent maintained



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grandiose thoughts that he had a military staff providing him with intelligence

information; (2) Respondent ingested a large number of pills in an apparent suicide

attempt; (3) Respondent had “a high dose of Adderall [and] Valium meds”; (4)

Respondent presented with an agitated manner and required forced medication and

restraints; (5) Respondent refused medication for mania and psychosis; and (6)

Respondent suffered from post-traumatic stress disorder as a result of prior military

service.    However, the trial court failed to make any finding that there was “a

reasonable probability of [Respondent] suffering serious physical debilitation within

the near future unless adequate treatment is given” or that there was “a reasonable

probability of suicide unless adequate treatment is given.” N.C. Gen. Stat. § 122C-

3(11)(a)(1), (2).   As in Whatley, the trial court’s findings in this case “reflect

Respondent’s mental illness, but they do not indicate that Respondent’s illness or any

of [his] aforementioned symptoms will persist and endanger [him] within the near

future.” Whatley, 224 N.C. App. at 273, 736 S.E.2d at 531. Although the trial court

need not say the magic words “reasonable probability of future harm,” it must draw

a nexus between past conduct and future danger. Id.

       Accordingly, because of the trial court’s failure to include a finding of a

reasonable probability of some future harm, “we cannot uphold the trial court’s

commitment order on the basis that Respondent posed a danger to [himself].” Id.

       B.      Dangerous to Others



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       An individual is “dangerous to others” when evidence is presented

               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, or has
               engaged in extreme destruction of property; 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)(b). As a result, in order to conclude that the respondent

is dangerous to others, the trial court must find three elements:

               (1) Within the [relevant] past
               (2) Respondent has
                      (a) inflicted serious bodily harm on another, or
                      (b) attempted to inflict serious bodily harm on
                      another, or
                      (c) threatened to inflict serious bodily harm on
                      another, or
                      (d) has acted in such a manner as to create a
                      substantial risk of serious bodily harm to another,
                      [or (e) has engaged in extreme destruction of
                      property,] and
               (3) There is a reasonable probability that such conduct will
               occur again.

In re Monroe, 49 N.C. App. 23, 30-31, 270 S.E.2d 537, 541 (1980).2 No finding of an

overt act is required to support a conclusion that an individual is dangerous to others.

Id. at 31, 270 S.E.2d at 541.


       2 Monroe was decided under a definition of “dangerous to others” provided in N.C. Gen. Stat.
§ 122-58.2(1)(b) that did not include engaging in extreme destruction of property. That statute was
repealed and recodified into the current definition in Chapter 122C that includes engaging in extreme



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                                         Opinion of the Court



       In the instant case, the only findings of fact relevant to the conclusion that

Respondent was dangerous to others were (1) Respondent’s statement that he was a

“commander [and] if [a York County, South Carolina] judge makes [the] wrong

decision in his court case [then] he will extract the judge [and] have his own hearing

[and] same [at] Rock Hill PD”; and (2) Respondent’s texts that he “had 400 rounds”

and “was going to start a war.” However, there was no explicit finding that there was

a reasonable probability of future harm to others. Whatley, 224 N.C. App. at 274, 736

S.E.2d at 531 (holding that the trial court’s conclusion that the respondent was a

danger to others was unsupported because the trial court’s findings described past

conduct and drew no connection to future danger to others). Again, although the trial

court need not say the magic words “reasonable probability of future harm,” it must

draw a nexus between past conduct and future danger. Id. at 273, 736 S.E.2d at 531.

       The trial court’s findings fail to support its conclusion that Respondent was a

danger to others absent commitment, and accordingly the Commitment Order cannot

be upheld.

                                       III.      Conclusion

       The trial court’s findings were insufficient to justify the involuntary

commitment of Respondent.             The trial court’s order lacked any finding that a

reasonable probability of some future harm existed, either to Respondent or to others,


destruction of property. See 1979 N.C. Sess. Laws. 1260, 1261, ch. 915, § 1; 1985 N.C. Sess. Laws. 670,
672, ch. 589, §§ 1, 2.

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absent his commitment. Thus, the Involuntary Commitment Order is vacated, and

this matter is remanded to the trial court for it to make additional findings to support

its conclusions.

      VACATED AND REMANDED.

      Judges TYSON and COLLINS concur.




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