              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-957

                                 Filed: 21 May 2019

Halifax County, No. 18 SPC 102

IN THE MATTER OF: J.C.D.




        Appeal by respondent from order entered 14 March 2018 by Judge J. Henry

Banks in District Court, Halifax County. Heard in the Court of Appeals 27 February

2019.


        Attorney General Joshua H. Stein, by Assistant Attorney General Jessica
        Macari, for the State.

        Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katy
        Dickinson-Schultz, for respondent-appellant.


        STROUD, Judge.


        J.C.D. (“Respondent”) appeals from an involuntary commitment order which

committed her to Halifax Regional Medical Center (“HRMC”) for up to 30 days. We

vacate the district court’s order and remand for additional findings of fact and entry

of a new order.

                                    I.     Background

              Respondent, age 76, presented to the emergency room with bruising on

the left side of her mouth and eyes and rambling speech. Respondent was initially
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examined by Dr. E. Conti at HRMC. Dr. Conti noted Respondent had stated her

daughter had hit her, and she had rambling speech focused on her daughters trying

to take advantage of her.      Dr. Conti recounted Respondent had a history of

“delusional” disorder and determined Respondent was “mentally ill,” “dangerous to

self,” and “dangerous to others.”

      On the Examination and Recommendation to Determine Necessity for

Involuntary Commitment Form (“commitment form”), Dr. Conti states, “daughter

reports that [Respondent] has been doing dangerous things such as walking long

distances to the store in a bad neighborhood, telling strangers her personal buisness

[sic] and inviting strangers into her home. Daughter also reports that [Respondent’s]

guns were take [sic] away from her due to threatening behavior.”

             Respondent was examined by Dr. Ijaz the following day to determine the

continued necessity for involuntary commitment. Dr. Ijaz determined Respondent

was “mentally ill,” “dangerous to self,” and “dangerous to others.” The commitment

form completed by Dr. Ijaz indicates “[Respondent] presents with occular [sic] and

facial bruising. She maintains that her daughter assulted [sic] her because she would

not sell her house.” Dr. Ijaz found Respondent was “at risk of causing harm to herself

or others due to her impaired judgement and delusional thinking and requires

inpatient hospitalization for stabilization and treatment.”




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       Dr. Conti signed an affidavit and petition requesting involuntary commitment

of Respondent on 8 March 2018. An involuntary commitment hearing was held on

14 March 2018. Respondent was represented by counsel. The only witness who

testified for the hospital was Latasha Motley, who was employed by HRMC.

Respondent also testified.            All parties indicate the transcript is unintelligible

regarding Ms. Motley’s specific job title at HRMC. Ms. Motley identified her role as

being involved with “psychiatric discharge,” but she also testified about Respondent’s

course of care in the hospital. Petitioner also offered as evidence a report by Dr. Ijaz,

who had evaluated and treated Respondent.                    The report was admitted without

objection from respondent.

                 The trial court announced at the conclusion of the hearing it found there

were facts supporting the involuntary commitment, and it would incorporate by

reference as findings in the order the report signed by Dr. Ijaz and offered by Ms.

Motley. The trial court also announced that it found respondent mentally ill and a

danger to herself and others and committed her for up to 30 days.

       The court’s written order, filed after the hearing, is on North Carolina

Administrative Office of the Courts form order SP-203. In the “Findings” portion of

the form,1 box number four was marked:




       1    Italics indicate hand-written additions to Form 203; the remainder is the preprinted text of
the form.

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             Based on the evidence presented, the Court



             4. by clear, cogent, and convincing evidence, finds as

      facts all matters as set out in the physician’s/eligible

      psychologist’s report specified below, and the report is

      incorporated by reference as findings.



             Date of Last Examiner’s Report 3-14-18



             Name of Physician/Eligible Psychologist Dr. Ijaz



The trial court also marked box five:

             5. by clear, cogent, and convincing evidence, finds

      these other facts:

             ...

             facts supporting the involuntary commitment:



             All facts as set out in the physician’s report date 3-

      14-18. The physician’s report shall be incorporated by

      reference as evidence to support this order.



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Dr. Ijaz’s letter which was incorporated by reference stated:

      [Respondent] is a 76 year old female admitted to

Halifax Regional on March 4, 2018, under Involuntary

Commitment     Order,    with    a    diagnosis    of   Possible

Neurocognitive D/O (Alzheimer’s disease).               Patient

presented to the Emergency Care Center on this date with

reports of confusion, auditory and visual hallucinations,

flight of ideas and confabulation prior to admission.

Patient was checked and has been cleared for all things

medical that could produce these symptoms in patients.



      Psychiatric Medications

      Xanax 0.5mg BID PO             Antianxiety



      Since being on the unit, patient has shown some

improvement. However she still presents with intermittent

episodes of confusion and paranoia.            She is easily

redirected at this time with no agitation or verbally

aggressive behaviors as initially presented upon admission



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            to the unit. Patient is compliant with medications and unit

            activities at present. In my opinion, patient is a danger to

            self, due to level of confusion and confabulation.             I

            recommend     that   patient   remain       on   the   inpatient

            psychiatric unit for up to 30 days for further stabilization

            and to formulate an effective discharge plan. Patient’s

            daughter petition the court and became her legal guardian

            so that she can make necessary decisions for patient’s care

            due to change in patient’s mental status and concerns for

            her safety.



      The court concluded Respondent was mentally ill and a danger to herself and

others. Respondent timely appealed.

                                    II.    Jurisdiction

            An appeal of right lies with this Court from a final judgment of

involuntary commitment. N.C. Gen. Stat. § 7A-27(b)(2) (2017); N.C. Gen. Stat. §

122C-272 (2017). “[A] prior discharge will not render questions challenging the

involuntary commitment proceeding moot. 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,



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217, 689 S.E.2d 468, 472-73 (2009) (citations and quotation marks omitted). This

appeal is not moot even though Respondent’s commitment period has expired.

                                           III.   Issues

             Respondent argues the trial court erred by ordering her commitment,

where the only findings of fact were solely those incorporated from and set out in the

non-testifying physician’s report. She asserts findings were insufficient to support

the conclusion she was dangerous to herself and others. Respondent also asserts a

denial of her statutory right to effective assistance of counsel.

                                  IV.     Standard of Review

             The trial court is required to support its findings of fact and ultimate

conclusion that Respondent “is mentally ill and dangerous to self . . . or dangerous to

others” by “clear, cogent and convincing evidence.” N.C. Gen. Stat. § 122C-268(j)

(2017). Further, “[t]he court shall record the facts that support its findings.” Id.

                    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 others were supported by the

             “facts” recorded in the order.




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      In re Whatley, 224 N.C. App. 267, 270, 736 S.E.2d 527, 530 (2012) (citation

omitted); see also In re Collins, 49 N.C. App. 243, 246, 271 S.E.2d 72, 74 (1980) (“On

appeal of a commitment order our function is to determine . . . whether the trial

court’s ultimate findings of mental illness and dangerous to self or others were

supported by the ‘facts’ recorded in the order.”).

                      V.     Admissibility of Physician’s Report

      Respondent first argues that “[t]he admission of Dr. Ijaz’s report, without Dr.

Ijaz’s presence at the hearing, constituted a denial of J.D.’s right to confront and

cross-examine the witness.” Respondent contends that based upon N.C. Gen. Stat. §

122C-268(f), Dr. Ijaz’s report was improperly admitted as evidence because she did

not appear at the hearing to testify.

      N.C. Gen. Stat. § 122C-268(f) provides that “[c]ertified copies of reports and

findings of physicians and psychologists and previous and current medical records

are admissible in evidence, but the respondent’s right to confront and cross-examine

witnesses may not be denied.” N.C. Gen. Stat. § 122C-268(f) (2017). Respondent

suggests that because her “right to confront and cross-examine witnesses may not be

denied,” Dr. Ijaz’s report could not be admitted unless she appeared to testify.

Respondent’s counsel failed to object to admission of Dr. Ijaz’s report as evidence

under N.C. Gen. Stat. § 122C-268(f) or for any other reason. Although Respondent

had a right to object to admission of the report without Dr. Ijaz’s testimony, she



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waived this right by her failure to object. N.C. R. App. P. 10(a)(1). Respondent’s

interpretation of the statute—that she has a non-waivable right for the physician to

appear and testify—is the opposite of what the statute allows. N.C. Gen. Stat. § 122C-

268(f) specifically allows the physician’s report to be admitted into evidence. Since

respondent did not object to admission of the report, and she did not assert her right

to have Dr. Ijaz appear to testify, the trial court did not err by admitting and

considering the report.

         VI.     Sufficiency of Findings of Fact under N.C. Gen. Stat. § 122C-268(j)

               The trial court’s ultimate findings of mental illness and dangerous to

self or others must be based upon clear, cogent, and convincing evidence and be

“supported by the ‘facts’ recorded in the order.” Whatley, 224 N.C. App. at 270, 736

S.E.2d at 530. “But unlike many other orders from the trial court, these ultimate

findings, standing alone, are insufficient to support the order; the involuntary

commitment statute expressly requires the trial court also to record the facts upon

which its ultimate findings are based.” In re W.R.D., ___, N.C. App. ___, ___, 790

S.E.2d 344, 347 (2016) (citation and quotation marks omitted).          The order for

Respondent’s involuntary commitment indicates the trial court had “incorporated by

reference” Dr. Ijaz’s report as the “clear, cogent, and convincing evidence” of

Respondent’s mental illness and danger to herself. The facts found by the trial court

to support its conclusions and order were simply the facts set out in Dr. Ijaz’s letter



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and did not include any findings based upon Ms. Motley’s or respondent’s testimony

at the hearing. Respondent does not challenge the specific facts as incorporated from

Dr. Ijaz’s letter as unsupported by the evidence but argues here that the incorporation

alone is not sufficient under N.C. Gen. Stat. § 122C-268(j). Thus, the issue is whether

the incorporation by reference of Dr. Ijaz’s report was sufficient to comply with the

statutory mandate for the trial court to “record the facts that support its findings.”

N.C. Gen. Stat. § 122C-268(j). Given the higher standard for findings of fact set forth

by N.C. Gen. Stat. § 122C-268(j) than in many other types of orders, we agree and

hold that the findings are not adequate to support the ultimate conclusion.

      Based upon the incorporation of Dr. Ijaz’s letter, the trial court made findings

that Respondent “is a 76 year old female admitted to Halifax Regional on March 4,

2018; she had a “diagnosis of Possible Neurocognitive D/O (Alzheimer’s disease);” she

“presented to the Emergency Care Center on this date with reports of confusion,

auditory and visual hallucinations, flight of ideas and confabulation prior to

admission;” she “was checked and has been cleared for all things medical that could

produce these symptoms in patients;” she had a prescription for “Xanax 0.5mg BID

PO Antianxiety;” she “has shown some improvement” while in the hospital but “she

still presents with intermittent episodes of confusion and paranoia;” “She is easily

redirected at this time with no agitation or verbally aggressive behaviors as initially

presented upon admission to the unit;” and she was “compliant with medications and



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unit activities at present.” The trial court also found by incorporation of Dr. Ijaz’s

report that Respondent “is a danger to self, due to level of confusion and

confabulation” and that she should “remain on the inpatient psychiatric unit for up

to 30 days for further stabilization and to formulate an effective discharge plan.”

             We must therefore consider whether the trial court’s findings of fact,

made by incorporation of Dr. Ijaz’s report, were sufficient to comply with the statutory

requirements to “record the facts which support its findings.” N.C. Gen. Stat. § 122C-

268(j). Certainly, the trial court’s order included more detail than those cases in

which the only findings were ‘checking the boxes” on the form, with no other

indication of the facts upon which it relied. Merely “placing an ‘X’ in the boxes” of the

form order has been disapproved repeatedly, as noted in Matter of Jacobs, where

respondent

                    assign[ed] as error the district court’s failure to

             make findings of fact to support its commitment order. G.S.

             122-58.7(i) provides in unambiguous terms: “The court

             shall record the facts which support its findings.” This

             Court has held on numerous occasions that the district

             court must record the facts necessary to support its

             findings. We note that the commitment order in the case

             sub judice is essentially identical to that order found to be



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              insufficient in In Re Koyi, supra. Merely placing an “X” in

              the boxes on the commitment order form does not comply

              with the statute.



       38 N.C. App. 573, 575, 248 S.E.2d 448, 449 (1978). It is not uncommon, and is

specifically provided as an option on AOC Form 203 for the trial court to incorporate

the physician’s report as at least a portion of the findings of fact in the order. Yet

where there is “directly conflicting evidence on key issues,” incorporation of a

document or other evidence is not sufficient for this Court to determine if the trial

court resolved the conflicts in the evidence to the required standard and burden of

proof by petitioner, and we must remand for findings of fact resolving the factual

issues. See In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365-66 (2000)

(“These findings are simply a recitation of the evidence presented at trial, rather than

ultimate findings of fact. In a nonjury trial, it is the duty of the trial judge to consider

and weigh all of the competent evidence, and to determine the credibility of the

witnesses and the weight to be given their testimony. If different inferences may be

drawn from the evidence, the trial judge must determine which inferences shall be

drawn and which shall be rejected. Where there is directly conflicting evidence on

key issues, it is especially crucial that the trial court make its own determination as

to what pertinent facts are actually established by the evidence, rather than merely



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reciting what the evidence may tend to show.” (citations omitted)); see also In re

Allison, 216 N.C. App. 297, 300, 715 S.E.2d 912, 915 (2011) (“The trial court used a

locally modified form involuntary commitment order and in making its findings of

fact checked the box stating, ‘Based on the evidence presented, the Court by clear,

cogent and convincing evidence finds these other facts: Court Finds That The

Respondent Meets Criteria For Further Inpatient Commitment.’ The trial court did

not make any written findings of fact or incorporate by reference either physician’s

report. Had the trial court utilized the standard Administrative Office of the Courts

form involuntary commitment order and entered the findings of fact required by that

form, this remand may not have been necessary as the evidence tends to show that

respondent is likely mentally ill and potentially dangerous to himself and to others.

But, the trial court’s checking of a box on its locally modified form is insufficient to

support this determination.”). If the report incorporated into the order does not

include sufficient facts to support the trial court’s conclusions, remand may be

necessary for additional findings. For example, in In re Booker, the respondent’s

sister, his physician, and respondent testified at the hearing, and there were

substantial conflicts in the evidence. 193 N.C. App. 433, 667 S.E.2d 302 (2008). The

trial court’s order incorporated the physician’s report, but that report included

minimal information and there were no additional findings to resolve the conflicts in

the evidence so remand was necessary:



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      In its order, the trial court checked the box on the

printed form that reads: “Based on the evidence presented,

the Court by clear, cogent and convincing evidence finds as

facts all matters set out in the physician’s report, specified

below, and the report is incorporated by reference as

findings.” The date of the last physician's report was 13

November 2007 and the physician's name listed was Dr.

P.R. Chowdhury. The next box on the printed form that

provided a section for other findings of fact to be recorded

was not checked and no other findings of fact were recorded

in the order.

      The 13 November 2007 report stated it was Dr.

Chowdhury’s opinion that Respondent was mentally ill,

dangerous to himself, and dangerous to others, but the only

“matters set out in” the report as findings by Dr.

Chowdhury were that Respondent was a “56 year old white

male, with history of alcohol abuse/dependence, admitted

with manic episode. He continues to be symptomatic with

limited insight regarding his illness.” These findings by Dr.

Chowdhury “incorporated by reference” in the trial court’s



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             order are insufficient to support the trial court’s

             determination that Respondent was dangerous to himself

             and to others.



      Id. at 437, 667 S.E.2d at 304 (brackets omitted). In contrast, this Court has

also held that the trial court’s incorporation by reference of the physician’s report

included sufficient facts to support the trial court’s conclusion that the respondent

presented a “danger to himself.” See In re Zollicoffer, 165 N.C. App. 462, 468-69, 598

S.E.2d 696, 700 (2004) (“Judge Senter’s involuntary commitment order incorporates

Dr. Soriano’s examination and recommendation of 3 June 2003 in his findings of fact.

In Dr. Soriano’s recommendation she states that respondent has a history of chronic

paranoid schizophrenia, that respondent admits to medicinal non-compliance which

puts him ‘at high risk for mental deterioration,’ that respondent does not cooperate

with his treatment team, and that he ‘requires inpatient rehabilitation to educate

him about his illness and prevent mental decline.’ These findings of fact were not

objected to in respondent’s assignments of error, thus they are binding on appeal.”).

             Here, the facts included in Dr. Ijaz’s report were more detailed than

those in Booker, but still did not address conflicts in the evidence or resolve questions

of credibility. The trial court’s findings did not address Ms. Motley’s testimony at all

and did not resolve any conflicts in the evidence presented by Respondent’s



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testimony. Respondent testified in her own defense. Her testimony was rambling

and not always coherent, but she testified that she had lived alone for over 20 years

and was able to take care of herself. She also testified that her daughter, who worked

at the hospital where she was involuntarily committed, was “working together” with

the hospital personnel to “permanently put [her] somewhere.” “If different inferences

may be drawn from the evidence, the trial judge must determine which inferences

shall be drawn and which shall be rejected.” Gleisner, 141 N.C. App. at 480, 539

S.E.2d at 365-66.

      The trier of fact could draw from the evidence an inference that Respondent’s

daughter was simply seeking to put her away, and, because she worked at the

hospital, the physicians there were helping her. Respondent drove and presented

herself with physical injuries at the emergency room, but was immediately taken for

involuntary commitment evaluation by the nurses who stated Respondent’s daughter

told them that Respondent was mentally ill. Or the trier of fact could infer that

Respondent’s paranoia and confusion led her to believe that her daughter was seeking

to harm her when she was actually trying to protect Respondent. But only the trial

court can draw these inferences or any other potential inferences based on the

evidence. This Court does not resolve issues of credibility and “[w]e 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



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evidence offered in a particular case met the burden of proof.” Collins, 49 N.C. App.

at 246, 271 S.E.2d at 74. This Court does not review whether the trial court properly

adjudicated all the evidence under the applicable burden of proof and whether its

findings of fact support its conclusions. The trial court’s order did not resolve the

conflicts in the evidence and did not fully state the facts upon which its conclusions

rested, so we must remand for additional findings of fact.

                     VII.   Sufficiency of Evidence to Support Findings

      We also note that although evidence was presented at the hearing which could,

if the trial court adjudicates conflicts in the evidence and makes the required findings

of fact, support a conclusion that Respondent was “dangerous to self,” there was no

evidence she was “dangerous to others.” In relevant part, N.C. Gen. Stat. § 122C-

3(11) provides that one is “dangerous to self” when:

                    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



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                         satisfy his need for nourishment, personal or

                         medical care, shelter, or self-protection and

                         safety[.]



      N.C. Gen. Stat. § 122C-3(11) (2017).



      There was evidence that Respondent’s daughter was seeking treatment for her

because she was dangerous to herself, and she had demonstrated the potential for

harming herself most recently by her fall, by which she was actually injured, and

frequent calls from neighbors reporting she was wandering in the streets. Ms. Motley

testified regarding Respondent’s condition upon admission to the hospital and the

reasons for her admission:

            She came in. She did have the entire left side of her face
            was bruised. When she initially came into the hospital she
            told us that her daughter . . . had beaten her and she said
            that had happened before Christmas, a couple weeks or the
            week before Christmas. Since being on the unit she has
            come back and said that’s not what happened at all, she
            remembered that she was scrubbing her floor and she
            slipped and fell and hit her face. It’s the confusion and the
            wandering in the streets as described by her neighbors, her
            being out in the street and they’re afraid that something
            may happen to her as well so that’s why she was actually
            brought into the hospital for the bruising and the confusion
            and the wandering.




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      The evidence tends to show that Respondent was diagnosed with “possible

neurocognitive disease disorder which is Alzheimer’s disease.” She had psychiatric

hospitalizations at least twice before for this condition.         Dr. Ijaz noted that

respondent’s symptoms upon admission were “confusion, auditory and visual

hallucinations, flight of ideas, and confabulation.” The term “confabulation” as used

in the medical context refers to “filling in of gaps in memory through the creation of

false memories by an individual who is affected with a memory disorder . . . and is

unaware that the fabricated memories are inaccurate and false[.]” Merriam-Webster,

https://www.merriam-webster.com/medical/confabulation (last visited May 1, 2019).

Respondent’s own testimony at the hearing could also support Dr. Ijaz’s findings of

confusion, flight of ideas, and confabulation.

      But there was no evidence, including in Dr. Ijaz’s report, that respondent was

dangerous to others. N.C. Gen. Stat. § 122C-3(11) defines “dangerous to others” as:

                    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,



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             when applicable, may be considered when determining

             reasonable probability of future dangerous conduct.



      N.C. Gen. Stat. § 122C-3(11)(b).



      There was no evidence that respondent had “inflicted or attempted to inflict or

threatened to” harm anyone or of any “previous episodes of dangerousness.” The

court’s conclusions that Respondent is mentally ill and dangerous to self and others

are based solely upon the incorporated “facts set out in” Dr. Ijaz’s letter. But Dr. Ijaz

did not state any opinion that Respondent was dangerous “to others;” her opinion was

only that “patient is a danger to self, due to level of confusion and confabulation.”

(Emphasis added.)     Nor did Ms. Motley testify that Respondent had threatened

anyone or presented any danger to others. No evidence was presented to support any

findings or conclusion that Respondent was dangerous to others. The trial court’s

conclusion she was dangerous to others was not supported by either the evidence or

findings of fact and must be vacated without remand.

                       VIII. Ineffective Assistance of Counsel

      Respondent argues that “she was denied effective counsel when her attorney

conceded that [she] should be involuntarily committed, an argument which was in

stark contrast to her wishes.” However, no prior case has determined that either



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Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984) (finding a criminal

ineffective assistance of counsel claim to require deficient performance and

prejudice), or State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985) (finding where

defendant’s counsel admits to guilt in a criminal proceeding without defendant’s

consent to be per se ineffective assistance of counsel), are applicable to an involuntary

commitment hearing. Even if we presume that an ineffective assistance of counsel

claim is potentially available to a respondent denied their liberty in an involuntary

commitment case, it is unnecessary for this Court to address this issue here. Since

we must vacate and remand for additional findings of fact, any potential prejudice to

Respondent from her counsel’s argument can be addressed by the trial court on

remand.

                                   IX.    Conclusion

      The court’s order contains insufficient findings to support its determination

that Respondent was dangerous to herself or to others. See Whatley, 224 N.C. App.

at 270, 736 S.E.2d at 530. Because the trial court failed to make sufficient findings

of fact resolving material conflicts in the evidence, adjudicate questions of credibility,

and only made findings by incorporation of Dr. Ijaz’s report, we must vacate the order

and remand for additional findings of fact regarding dangerousness to self and entry

of a new order.     Because there was no evidence to support a conclusion that

Respondent was dangerous to others, we vacate the trial court’s conclusion on that



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issue without remand.   The commitment order is vacated and the matter is

remanded.

     VACATED AND REMANDED.

     Judges TYSON and ARROWOOD concur.




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