An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                       NO. COA13-962

                         NORTH CAROLINA COURT OF APPEALS

                                 Filed: 1 April 2014


IN THE MATTER OF:
     DEBORAH PERKINSON JOHNSON

                                                Wake County
                                                No. 13 SPC 1148




       Appeal     by    respondent      from    involuntary      commitment   order

entered     14   March    2013    by    Judge   Kris    Bailey    in   Wake   County

District Court.         Heard in the Court of Appeals 22 January 2014.


       Attorney General Roy Cooper, by Assistant Attorney General
       Adam M. Shestak, for the State.

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

       Appellate Defender Staples Hughes, by Assistant Appellate
       Defenders John F. Carella and Benjamin Dowling-Sendor, for
       respondent-appellant.


       BRYANT, Judge.


       Where     an    involuntary     commitment      order   lacks   findings   of

fact   as   required      under   N.C.     Gen.   Stat.    §   122C-268(j),    such
                                            -2-
omissions are substantive and, once notice of appeal has been

given, cannot be corrected by the trial court in an amended

order issued pursuant to N.C. Gen. State. § 1A-1, Rule 60(a).

      On    6   March        2013,    the   guardian      of    respondent      Deborah

Perkinson Johnson (“respondent”) filed an affidavit and petition

for involuntary commitment alleging that respondent was mentally

ill   and   dangerous        to   herself     or    others.      That    same   day,    a

custody     order      was   served    upon    respondent.        Upon    examination

respondent was transferred to Holly Hill Hospital (“Holly Hill”)

for hospitalization pending her commitment hearing.

      On 14 March 2013, a commitment hearing was held.                           During

the   hearing     respondent’s        guardian      testified     that   while     in   a

manic state respondent spends money recklessly and has engaged

in distracted driving and hurt herself in several car accidents.

The   Holly     Hill    psychiatrist        who    treated     respondent    testified

respondent engaged in “inappropriate behavior” while manic and

that respondent needed inpatient treatment to achieve clinical

stability       because       respondent          was   non-compliant       with    her

medications.        Respondent admitted that she was mentally ill but

testified that she is of “full faculty,” “completely understands

her illness,” and has “been compliant with [her] meds.”
                                              -3-
       At the conclusion of the hearing, the trial court found

respondent      to     be     mentally        ill    and    dangerous       to     herself.

Respondent was ordered committed to an inpatient facility for

twenty days and an outpatient facility for seventy days.                             On 21

March 2013, respondent filed a notice of appeal pursuant to the

14 March order. On 22 March 2013, the trial court amended the 14

March    commitment          order.        On   19   December       2013,     respondent,

acknowledging         that    the     prior     notice     of    appeal    might    not   be

sufficient to allow this Court jurisdiction to hear her appeal

from the amended order, filed in this Court a petition for writ

of certiorari.

                              ______________________________

       At the outset we note that although respondent’s term of

involuntary commitment has now expired, “a prior discharge will

not    render    questions           challenging     the        involuntary      commitment

proceeding moot.”             In re Mackie, 36 N.C. App. 638, 639, 244

S.E.2d 450, 451 (1978) (citation omitted).                        “When the challenged

order may form the basis for future commitment or may cause

other    collateral          legal    consequences         for     the    respondent,     an

appeal of that order is not moot.”                   In re Webber, 201 N.C. App.

212,    217,    689    S.E.2d       468,   472—73     (2009)       (citation      omitted).

Therefore, we address the merits of this appeal.
                                         -4-
      On appeal, respondent argues that the trial court erred:

(I)   by      involuntarily      committing          respondent;     and     (II)    by

concluding     that    respondent    met       the    standard     for   involuntary

patient commitment.

                                               I.

      Respondent       first    argues   that        the   trial   court    erred   by

involuntarily committing her.            Specifically, respondent contends

the   trial    court    erred    because   the        trial   court’s      only   valid

commitment order, the first order issued 14 March 2013, did not

support its conclusion that respondent was dangerous to herself

with any findings of fact.          We agree.

                   On appeal from an order of commitment,
              the questions for determination are (1)
              whether the court's ultimate findings of
              mental illness and danger to self are
              supported by the facts which the Court
              recorded in its order as supporting its
              findings, and (2) whether, in any event,
              there was competent evidence to support the
              court's findings.

In re Lowery, 110 N.C. App. 67, 71, 428 S.E.2d 861, 863 (1993)

(citation omitted).

      The trial court issued two orders of commitment: an initial

order filed 14 March 2013, and a second amended order which

included handwritten findings of fact by the trial court dated

22 March 2013.         Respondent filed a timely notice of appeal from
                                            -5-
the   initial    order    on    21    March,      one    day   prior   to    the   trial

court’s amending of the initial order on 22 March.                           The State

now   challenges    respondent’s          appeal    as    untimely,     arguing        that

because    the    trial    court      was    permitted         to   amend   its    order

pursuant to Rule 60(a), this Court lacks jurisdiction to hear

respondent’s appeal because respondent failed to file a timely

notice of appeal from the 22 March amended order.

      “The general rule is that the jurisdiction of the trial

court is divested when notice of appeal is given, except that

the trial court retains jurisdiction for matters ancillary to

the appeal, including settling the record on appeal.”                          State v.

Davis,    123    N.C.    App.    240,     242,    472    S.E.2d     392,    393    (1996)

(citations omitted).            As the trial court must have its records

“speak the truth,” pursuant to Rule 60(a),

            [c]lerical mistakes in judgments, orders or
            other parts of the record and errors therein
            arising from oversight or omission may be
            corrected by the judge at any time on his
            own initiative or on the motion of any party
            and after such notice, if any, as the judge
            orders. During the pendency of an appeal,
            such mistakes may be so corrected before the
            appeal   is   docketed   in  the   appellate
            division, and thereafter while the appeal is
            pending may be so corrected with leave of
            the appellate division.

N.C.G.S. § 1A-1, Rule 60(a) (2013).                     However, "[w]hile Rule 60

allows    the    trial    court      to   correct       clerical    mistakes      in   its
                                   -6-
order, it does not grant the trial court the authority to make

substantive modifications to an entered judgment."          Food Serv.

Specialists v. Atlas Rest. Mgmt., 111 N.C. App. 257, 259, 431

S.E.2d 878, 879 (1993).       "A change in an order is considered

substantive and outside the boundaries of Rule 60(a) when it

alters the effect of the original order."           Buncombe Cnty. v.

Newburn, 111 N.C. App. 822, 825, 433 S.E.2d 782, 784 (1993)

(citation omitted).

    The initial commitment order of 14 March does not contain

any findings of fact, while the amended order dated 22 March

contains handwritten findings of fact initialed by the trial

court.    The State argues that this amendment is permissible

under Rule 60(a), as the handwritten findings of fact merely

clarify   the   trial   court’s   determination   that   respondent   is

dangerous to herself and thus should be committed to both in-

and outpatient treatment, and accordingly is a clerical error.

We disagree, as pursuant to N.C. Gen. Stat. § 122C-268(j),

           [t]o 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 G.S. 122C-3(11)a., or dangerous
           to others, as defined in G.S. 122C-3(11)b.
           The court shall record the facts that
           support its findings.
                                         -7-
N.C.G.S.     §    122C-268(j)        (2013).    Moreover,         this   Court    has

recently held that where a statute requires the trial court to

make findings of fact to support its ultimate determination of a

party’s rights, the presence or absence of those findings is

substantive.       In re C.N.C.B., 197 N.C. App. 553, 678 S.E.2d 240

(2009) (holding that where the presence or absence of a finding

of fact altered the effect of the order, any amendment adding or

deleting that finding of fact was substantive and prohibited by

Rule 60(a)).

    Here, the trial court was clearly directed by N.C.G.S. §

122C-268(j) to “record the facts that support its findings” when

issuing    an    involuntary     commitment     order.        A    review   of    the

initial 14 March order does not indicate that the trial court

made any findings of fact; rather, the trial court checked boxes

indicating       that   it   found    respondent   to    be   mentally      ill   and

dangerous to herself, and noted that “the respondent appears and

contests commitment, stipulate [sic] to mental illness and in

need of out-patient commitment.”               This Court has held that in

issuing an involuntary commitment order, “it is mandatory that

the trial court record the facts which support its findings.”

In re Allison, ___ N.C. App. ___, ___, 715 S.E.2d 912, 915

(2011) (citation omitted) (holding that where “[t]he trial court
                                       -8-
did not make any written findings of fact,” “the trial court's

checking of a box on its locally modified form is insufficient”

to meet the requirements of N.C.G.S. § 122C-268(j)).                         As such,

the trial court lacked jurisdiction to enter the amended order

on 22 March where the amendment was to not to correct a clerical

mistake in the order but to add statutorily required findings of

fact and was, therefore, a substantive amendment.                          See In re

C.N.C.B., 197 N.C. App. 553, 678 S.E.2d 240. As respondent gave

timely notice of appeal from the initial 14 March order, that

appeal     is   properly    before     this        Court.      However,      we     deny

respondent’s     petition    for     writ     of    certiorari        to   review   the

amended order as it was entered without jurisdiction.                        Based on

our resolution of the jurisdictional issue, we do not reach

respondent’s     second     argument    regarding           whether    she   met    the

standard for involuntary commitment.                 We do, however, note that

the evidence does appear to support a finding that respondent is

mentally ill and potentially dangerous to others.                          We reverse

and remand the 14 March order for entry of appropriate findings

of fact.

    Reversed and remanded.

    Judges CALABRIA and GEER concur.

    Report per Rule 30(e).
