                                NO. COA13-1397

                      NORTH CAROLINA COURT OF APPEALS

                              Filed:   20 May 2014


IN THE MATTER OF:
     GILBERT MOORE, JR.

                                           Granville County
                                           No. 12 SPC 1949


      Appeal by respondent from order entered 5 August 2013 by

Judge Amanda E. Stevenson in Granville County District Court.

Heard in the Court of Appeals 5 May 2014.


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

      Staples Hughes, Appellate Defender, by James R. Grant,
      Assistant Appellate Defender, for respondent-appellant.


      MARTIN, Chief Judge.


      Respondent    Gilbert     Moore,    Jr.    appeals    from     the   trial

court’s involuntary commitment order 5 August 2013 recommitting

him for ninety days of inpatient treatment.                Respondent argues

that the trial court lacked subject-matter jurisdiction and that

the   evidence     does   not   support    the    trial    court’s     ultimate

findings that respondent was a danger to himself as well as

others.
                                            -2-
      On 25 September 2012, a licensed clinical social worker in

Guilford     County     filed     an       affidavit    and      petition    to     have

respondent involuntarily committed.                The affidavit contained the

following facts:

             Mr. Moore has a history of mental illness.
             At present he has very disorganized speech
             and is not making any sense.          He has
             reported to the crisis center multiple times
             this morning.    He is not able to express
             exactly what he needs due to his mental
             illness.    He appears to have a thought
             disorder or some kind of psychotic disorder.
             He is in need of evaluation and treatment.

The   same     day,      a    Guilford        County      magistrate,       based     on

petitioner’s affidavit and petition, issued a custody order and

respondent was picked up by a law enforcement officer and taken

to a facility for examination.                Respondent was then examined by

two   different      physicians,       both   of   whom     recommended      inpatient

commitment for respondent, and respondent was taken to Central

Regional     Hospital.        After    a    hearing    on   2    October    2012,    the

District     Court     of     Granville       County    issued      an     involuntary

commitment     order        committing      respondent      to    thirty     days    of

inpatient commitment and sixty days of outpatient commitment.

The court recommitted respondent to ninety days of inpatient

treatment on 1 November 2012.               Additional involuntary commitment

orders for varying durations were issued by the district court
                                          -3-
on 31 January 2013, 4 April 2013, 13 June 2013, and 5 August

2013.

       Before issuing its 5 August 2013 order, the court heard

evidence as follows:          Dr. Jeffrey Fahs, respondent’s attending

physician,     testified       that       respondent         had     schizoaffective

disorder.         He   further      testified       that      by    age       forty-four

respondent had been committed to state hospitals approximately

twenty-seven      times,      and   one     of    the      reasons       he    was   re-

hospitalized so many times was because he would stop taking his

medication when he was released.                 Dr. Fahs also thought that

respondent was a danger to others; respondent was on Central

Regional Hospital’s alert system due to at least one altercation

with    another     patient.        Dr.     Fahs,       based      on     respondent’s

condition, history of violence, and the fact that no suitable

discharge placement was available, recommended that respondent

be recommitted for ninety days.

       Esther Robie, a social worker who worked with respondent,

also    testified      that    respondent        needed      a     proper     discharge

placement because his discharges have become shorter and his

readmissions      more     frequent       because       he       stops    taking     his

medication during periods of discharge.                      In fact, in the year

before respondent’s 2 October 2012 involuntary commitment, he
                               -4-
had been admitted to hospitals on three different occasions.

Ms. Robie also testified that when respondent first arrived at

Central Regional Hospital he was placed in the high management

unit because of his aggressive behavior.

    Based on Dr. Fahs’s and Ms. Robie’s testimony the district

court made the following findings of fact:

         1. The respondent   was     admitted   to   this
         facility on 09-29-2012.

         2. The  respondent    has  a   diagnosis of
         schizoaffective disorder with psychotic and
         manic symptoms.    In the past, he also had
         delusional thinking.

         3. Upon admission on September 29, 2012, he
         had exhibited aggressive tendencies.

         4. The respondent has a history of 27 state
         psychiatric hospitalizations and many other
         non-state psychiatric hospitalizations.

         5. He has a history of non-compliance with
         his medications outside of the hospital.

         6. The  respondent    is   at   high  risk   of
         decompensation   if    released   and   without
         medication.

         7. During his relapses, he is a danger to
         others.

         8. Since October 2012, he has been compliant
         with medications.    He is doing well with
         treatment, listens to team and is on level
         5.     This entitles him to off campus
         privileges.
                                           -5-


              9. Dr. Fahs stated he is concerned he would
              “relapse by the end of football season” if
              released without placement.

              10. His readmissions are more frequent.

              11. The respondent          acknowledges          his    mental
              illness.

Based on these findings of fact, the trial court found that

there was clear, cogent, and convincing evidence to support a

finding      that    respondent    is     mentally       ill    and    is    a    danger   to

himself and others, and ordered the recommitment of respondent

as an inpatient for ninety days.                 Respondent appeals.

                          _________________________

    Before addressing the merits of respondent’s appeal we must

address      two     preliminary        matters:          (1)       whether       to   grant

respondent’s petition for writ of certiorari, and (2) whether

respondent’s appeal is moot.

    First,          respondent    has     filed      a     petition         for    writ    of

certiorari because his notice of appeal failed to designate “the

court   to    which    [his]     appeal    is     taken”       as    required     by   North

Carolina Rule of Appellate Procedure 3(d).                          A party must comply

with the requirements of Rule 3 to confer jurisdiction on an

appellate court.         Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d

313, 322 (2000).           Thus, failure to comply with Rule 3 is a
                                          -6-
jurisdictional default that prevents this Court “from acting in

any manner other than to dismiss the appeal.”                            Dogwood Dev. &

Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 197, 657

S.E.2d    361,    365    (2008).         North      Carolina      Rule    of       Appellate

Procedure    21(a)(1),      however,         allows    us    to     issue      a    writ    of

certiorari       under    “appropriate        circumstances         . . .      to     permit

review of the judgments and orders of trial tribunals when the

right to prosecute an appeal has been lost by failure to take

timely action.”          In State v. Hammons, __ N.C. App. __, __, 720

S.E.2d 820, 823 (2012), we exercised our discretion to allow the

defendant’s      petition       for   writ    of     certiorari      when      “it     [was]

readily   apparent       that    [the]    defendant         ha[d]    lost      his    appeal

through no fault of his own, but rather as a result of sloppy

drafting of counsel.”           Therefore, we exercise our discretion and

grant respondent’s petition for writ of certiorari and address

the merits of his appeal.

    Next, we hold that respondent’s appeal is not moot even

though the ninety-day commitment period provided in the 5 August

2013 order, from which respondent appeals, has expired.                                    Our

Supreme     Court    has    addressed         the     question       of     whether        the

discharge of a person who was involuntarily committed renders an

appeal moot.        In re Hatley, 291 N.C. 693, 695, 231 S.E.2d 633,
                                             -7-
634    (1977).          The        Court    in     Hatley    reasoned         that     “[t]he

possibility      that     respondent’s           commitment      in    this    case        might

likewise form      the basis for a future commitment, along with

other obvious collateral legal consequences, convinces us that

this appeal is not moot.”                    Id.     at 695, 231 S.E.2d at 635.

Respondent’s appeal is not moot.

       Respondent’s first substantive argument is that the trial

court lacked subject-matter jurisdiction to recommit him on 5

August 2013 because the 25 September 2012 affidavit and petition

were     fatally   deficient           because      the     facts      alleged       did     not

demonstrate that respondent met the statutory requirements for

involuntary commitment.                This argument fails for the reasons

stated below.

       While    respondent          claims    he    is    challenging       the      subject-

matter    jurisdiction         of     the    trial       court   to    commit     him,       his

argument appears to be that the facts in the original affidavit

and petition were insufficient to demonstrate that reasonable

grounds existed to believe that respondent was mentally ill and

a danger to himself or others.                      See N.C. Gen. Stat. § 122C-

261(a)–(b) (2013) (requiring the petitioner to state the facts

that   his     opinion    that       the    respondent      is     mentally     ill    and     a

danger    to    himself       or    others   is     based    on,      and   requiring       the
                                             -8-
magistrate       to    determine   if     there      are   reasonable      grounds   to

believe that the respondent is mentally ill and a danger to

himself     or        others).          Thus,       respondent      challenges       the

magistrate’s 25 September 2012 determination to issue a custody

order.      For the reasons stated below, we hold that respondent

has waived this argument.

       We   have      previously    found          that    N.C.G.S.    §     122C-261’s

reasonable grounds requirement is synonymous with probable cause

in the criminal context.            See, e.g., In re Reed, 39 N.C. App.

227, 229, 249 S.E.2d 864, 866 (1978) (“Reasonable grounds has

been   found     to    be   synonymous       with    probable      cause,”    (internal

quotation      marks     omitted)).          We     have   drawn    this     comparison

because a custody order deprives a person of their liberty and

therefore      is     analogous    to    a    criminal      proceeding,       like   the

issuance of an arrest warrant, where a defendant is deprived of

his liberty.          In re Zollicoffer, 165 N.C. App. 462, 466, 598

S.E.2d 696, 699 (2004).            In the past, we have left the analogy

there, however, today we take the analogy one step further.

       When there is a problem with a warrant, a defendant may

waive his objection to the sufficiency of the warrant if he does

not object before he enters a plea of not guilty.                             State v.

Green, 251 N.C. 40, 43, 110 S.E.2d 609, 611–12 (1959); see also
                                        -9-
Irving Joyner, Criminal Procedure in North Carolina § 2.4[C]

(3rd   ed.   2005).   Based      on     the    procedure    for    challenging   a

warrant in the criminal context, respondent should have raised

his concerns about the affidavit’s sufficiency during his first

involuntary commitment hearing.               Furthermore, while none of our

involuntary     commitment       case       law    has     directly    addressed

respondent’s    argument,    a     requirement      that       respondents   raise

issues with the affidavit, petition, or custody order in the

first involuntary commitment hearing is consistent with our case

law.   Reed, 39 N.C. App. at 228, 249 S.E.2d at 865, addressed a

respondent’s    argument    that      an   affidavit     was    defective.     The

Court recited the facts of the case as follows:

             On the affidavit of his cousin, respondent
             was taken into custody.    At his commitment
             hearing, he moved to dismiss on the ground
             that the petition for commitment was so
             vague as to violate both the statutory
             standard and due process, so that there
             could have been no finding of probable cause
             for issuance of the custody order.

Id. at 277, 249 S.E.2d at 865.             Thus, the facts suggest that the

respondent in Reed challenged the sufficiency of the affidavit

during his first involuntary commitment hearing, rather than at

a later recommitment hearing.              Here, respondent failed to raise

the issue of the sufficiency of the affidavit during the first

involuntary commitment hearing, nor did the record reflect that
                               -10-
he raised it at any of the four recommitment hearings preceding

the present appeal.     Thus, we hold respondent has waived any

challenge to the sufficiency of the affidavit to support the

magistrate’s original custody order.

    Next, respondent challenges two findings of fact from the 5

August 2013 order:    (1) Finding of Fact 9, and (2) the ultimate

findings that respondent was a danger to himself as well as

others.

    Our standard of review for a recommitment order is the same

as our standard of review for a commitment order.    In re Hayes,

151 N.C. App. 27, 29, 564 S.E.2d 305, 307 (“We see no reason to

distinguish the standard of review of a recommitment order from

that of a commitment order.”), disc. review denied and appeal

dismissed, 356 N.C. 613, 574 S.E.2d 680 (2002).     When we review

a commitment order, our review is limited to determining “(1)

whether the court’s ultimate findings are indeed 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 Hogan, 32 N.C.

App. 429, 433, 232 S.E.2d 492, 494 (1977).   If a respondent does

not challenge a finding of fact, however, it is “presumed to be

supported by competent evidence and [is] binding on appeal.”
                                           -11-
State v. Baker, 312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984).

Furthermore, we do not reweigh the evidence because “[i]t is for

the trier of fact to determine whether evidence offered in a

particular       case    is     clear,   cogent,     and    convincing.”         In    re

Underwood, 38 N.C. App. 344, 347, 247 S.E.2d 778, 781 (1978).

       Respondent       challenges       Finding    of    Fact    9,   which    states:

“Dr. Fahs stated he is concerned [respondent] would ‘relapse by

the   end   of       football    season’    if    released    without     placement.”

Respondent argues that this is not a finding of fact because it

is    simply     a    recitation    of     evidence.       For    this    proposition

respondent relies on In re Rogers, 297 N.C. 48, 55, 253 S.E.2d

912, 917 (1979), which states:                    “Indeed [the Board] made no

findings of fact at all.            It merely recited some of the evidence

presented      and      stated     its     conclusion      that    Rogers      had    not

satisfied the Board of his good moral character.”                        While on its

face this statement would seem to support respondent’s argument,

it does not.

       There     are     two     types    of     facts:      Ultimate       facts     and

evidentiary facts.             See Woodard v. Mordecai, 234 N.C. 463, 470,

67 S.E.2d 639, 644 (1951).               “Ultimate facts are the final facts

required to establish the plaintiff’s cause of action or the

defendant’s defense; and evidentiary facts are those subsidiary
                                     -12-
facts required to prove the ultimate facts.”             Id.     Thus, knowing

that there are evidentiary facts and ultimate facts, it is clear

that    the    issue   in   Rogers   was    that   the   Board    only   found

evidentiary facts and not ultimate facts, which would support

its conclusion of law.         Applied here, the trial court did not

err in making the evidentiary finding in Finding of Fact 9 even

though it was reciting some of Dr. Fahs’s testimony because the

trial court went on to find the ultimate facts that respondent

was mentally ill and a danger to himself and others.

       Next, respondent asserts that there is not clear, cogent,

and convincing evidence to support the trial court’s ultimate

findings that respondent is a danger to himself and a danger to

others.1

       A person is a danger to himself if within the relevant

past:

              1. The individual has acted in such a way as
                 to show:

1
  We note that respondent states he is challenging the trial
court’s conclusions of law that respondent is a danger to
himself   and  others.     While  the   pre-printed  Involuntary
Commitment Order AOC-SP-203 categorizes these as “conclusions,”
the law is clear that these determinations are not conclusions
of law because “[w]hether a person is mentally ill . . . and
whether he is imminently dangerous to himself or others, present
questions of fact.”   Hogan, 32 N.C. App. at 433, 232 S.E.2d at
494.    Thus, “[w]e will ignore the incorrect designation and
treat the court’s conclusions as findings of the ultimate facts
required by [the statute].” See id.
                                    -13-


                  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.         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 . . . .

N.C. Gen. Stat. § 122C-3(11)(a) (2013).               Respondent concedes

that the evidence supports subpart          I of the definition,          but

argues that the evidence does not support the finding that there

was   a   “reasonable   probability”   that      respondent   would    suffer

serious physical debilitation in the near future.               Respondent

relies on In re Whatley, __ N.C. App. __, __, 736 S.E.2d 527,

531 (2012), appeal after remand, __ N.C. App. __, 754 S.E2d 258

(2014) (unpublished), for the proposition that the possibility

of    relapse   alone   cannot   satisfy   the   requirement   of     serious
                                             -14-
physical debilitation in the near future.                           The Whatley court was

concerned       that    the     trial   court’s         findings      of        fact    were       all

focused    on     the    respondent’s        past       conduct      and        not    about       the

respondent’s potential future conduct.                      Id. (“Each of the trial

court’s     findings         pertain    to     either      Respondent’s               history       of

mental illness or her behavior prior to and leading up to the

commitment        hearing,       but    they     do      not      indicate            that    these

circumstances          render    Respondent         a    danger      to    herself           in   the

future.”).        The facts before us are distinguishable from Whatley

because, while the trial court did make findings of fact about

respondent’s past conduct, the trial court also made findings

about respondent’s likely future conduct.                           The trial court found

that respondent “is at a high risk of decompensation if released

and without medication,” and that Dr. Fahs thought respondent,

if released, would “relapse by the end of football season.”                                         As

a   result,     the     trial    court’s       findings        of    fact       indicate          that

respondent is a danger to himself in the future.                                Therefore, the

trial     court    properly       found      that       respondent         is    a     danger      to

himself because there is a reasonable possibility that he will

suffer serious physical debilitation in the near future.

      We do not need to consider respondent’s argument that he is

not   a    danger       to    others    because         N.C.G.S.       §    122C-276(e)             in
                              -15-
conjunction with N.C.G.S. § 122C-271(b)(2) only requires that

the trial court find that a respondent is a danger to himself or

others.

    For the reasons stated above, we affirm.

    Affirmed.

    Judges STEELMAN and DILLON concur.
