              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-1316

                                Filed: 2 August 2016

Buncombe County, No. 15SPC943

IN THE MATTER OF: W.R.D., III



      Appeal by respondent from order entered 11 June 2015 by Judge Andrea Dray

in Buncombe County District Court. Heard in the Court of Appeals 25 May 2016.


      Attorney General Roy Cooper, by Assistant Attorney General Elizabeth
      Guzman, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel L.
      Spiegel, for respondent.


      DIETZ, Judge.


      Respondent appeals from the trial court’s order of involuntary commitment.

Following a hearing, the trial court found that Respondent was a danger to himself

and others and ordered him to be institutionalized for 30 days.

      As explained below, we reverse the commitment order. The record indicates

that Respondent suffers from schizophrenia; that he refused to take his prescription

medication both for his mental illness and an unrelated heart condition; that he lost

some “unknown amount” of weight but remained at a healthy weight; that he warned

his guardian to stay away from him or he would sue him; and that he was angry and

rude to hospital staff after being involuntarily committed.
                                      IN RE W.R.D. III

                                      Opinion of the Court



      This evidence cannot support the trial court’s ultimate findings that

Respondent posed a danger to himself or others. Our holding today does not mean

that Respondent is competent, or that he cannot properly be committed at some

future hearing.    We simply hold that the evidence in the record on appeal is

insufficient to satisfy the statutory criteria for involuntary commitment. Accordingly,

we reverse the trial court’s order.

                          Facts and Procedural History

      In 2003, Respondent was diagnosed with schizophrenia. Respondent always

has disputed this diagnosis and continues to do so today.

      Because of Respondent’s health issues and his failure to attend to his basic

needs, Respondent’s mother was appointed as his guardian and Social Security payee.

She continued in that capacity until 2015, when Hope for the Future, an organization

that offers guardianship services, began working with Respondent and ultimately

assigned Kevin Connor to serve as his guardian.

      Respondent refused to meet with Connor, who was a complete stranger to him.

Connor tried to arrange an in-person meeting with Respondent on four different

occasions with no success. Respondent spoke to Connor several times on the phone.

During those calls, Respondent denied having a mental illness and denied needing

any assistance from Connor. According to Connor, Respondent also left him voice




                                             -2-
                                   IN RE W.R.D. III

                                   Opinion of the Court



messages, which included statements such as “You’d better back off, Jack,” and “Don’t

you come around me. I will sue you into the ground.”

      On 29 May 2015, Connor filed an affidavit and petition to have Respondent

involuntarily committed.      Respondent was hospitalized at Mission Hospital

Copestone in Asheville. Dr. Martha Moore examined Respondent upon admission to

the hospital and recommended he receive inpatient treatment for 30 days. Dr. Trace

Fender performed a second examination on 1 June 2015 and also concluded that

Respondent was in need of inpatient treatment for 30 days. Three days later, on 4

June 2015, Connor had his first and only in-person meeting with Respondent.

      The trial court held a hearing on the involuntary commitment petition on 11

June 2015. Three witnesses testified at the hearing. First, the Court heard from

Connor, Respondent’s guardian. Connor testified that Respondent had acted in a

“menacing” way towards representatives from Hope for the Future, although he

conceded Respondent was never violent and never threatened violence. He also

testified that Respondent had allegedly written and left a letter for his ex-wife at her

home despite not being permitted onto his ex-wife’s property.         Finally, Connor

testified that Respondent was not taking his medications to treat his schizophrenia

and a serious heart condition.        Connor conceded on cross-examination that

Respondent had never shown any indications of physical violence and had never

engaged in any self-harming behavior.



                                          -3-
                                    IN RE W.R.D. III

                                   Opinion of the Court



      Respondent     also   testified.    He    expressed   confusion   regarding   his

hospitalization. He claimed that he had “not broken any law or anything,” and he

thought that his hospitalization stemmed from an issue with his Social Security

payments. He testified that he was no longer in need of a guardian; that he had

plenty of food in his house; that he was able to work odd jobs to earn additional money;

that he had purchased his own vehicle; and that he was willing to take his heart

medication but would not take any medication prescribed to treat mental illness.

      Finally, Dr. Frederick Weigel, a staff psychiatrist at Copestone, testified as an

expert witness in general psychiatry. He testified that in his opinion Respondent was

schizophrenic and that he was unable to “maintain his own nourishment and medical

care.” Dr. Weigel’s opinion concerning Respondent’s nourishment was based solely

on his understanding that Respondent had lost some “unknown amount” of weight

before his involuntary commitment. Dr. Weigel acknowledged that Respondent’s

current weight was not unsafe. Dr. Weigel’s opinion that Respondent could not

maintain his own medical care was based on Respondent’s refusal to take his

prescription medications for schizophrenia and his heart condition.

      At the conclusion of the hearing, the trial court found that Respondent “is

mentally ill, poses a threat to himself and others, is unable to take [sic] maintain his

nutrition, that it is not medically safe for Respondent to live outside of an inpatient

commitment setting, and that no less restrictive treatment measure than inpatient



                                          -4-
                                  IN RE W.R.D. III

                                  Opinion of the Court



treatment would be medically appropriate.” As a result, the trial court ordered

Respondent to undergo 30 days of involuntary commitment at Mission Hospital

Copestone. Respondent timely appealed.

                                      Analysis

      Respondent argues that the trial court’s determination that he is a danger to

himself or others is not supported by competent record evidence. As explained below,

we agree and therefore reverse the trial court’s commitment order.

      As an initial matter, we note that Respondent’s appeal is not moot although

his 30-day commitment period has lapsed.           The possibility that Respondent’s

commitment might “form the basis for a future commitment, along with other obvious

collateral legal consequences,” preserves his right to appellate review despite the

expiration of his commitment period. In re Hatley, 291 N.C. 693, 695, 231 S.E.2d 633,

635 (1977).

      To support an involuntary commitment order, the trial court is required to

“find two distinct facts by clear, cogent, and convincing evidence: first that the

respondent is mentally ill, and second, that he is dangerous to himself or others.” In

re Lowery, 110 N.C. App. 67, 71, 428 S.E.2d 861, 863–64 (1993); N.C. Gen. Stat.

§ 122C–268(j). These two distinct facts are the “ultimate findings” on which we focus

our review. See In re Moore, 234 N.C. App. 37, 43, 758 S.E.2d 33, 37–38 (2014). But

unlike many other orders from the trial court, these “ultimate findings,” standing



                                         -5-
                                   IN RE W.R.D. III

                                   Opinion of the Court



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

N.C. Gen. Stat. § 122C–268(j).

      We review the trial court’s commitment order to determine whether the

ultimate finding concerning the respondent’s danger to self or others is supported by

the court’s underlying findings, and whether those underlying findings, in turn, are

supported by competent evidence. See In re Booker, 193 N.C. App. 433, 437, 667

S.E.2d 302, 305 (2008).

I.    Danger to Self

        Respondent first challenges the trial court’s ultimate finding that he was

“dangerous to himself.” To find danger to self in these circumstances, the trial court

must find that Respondent “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 that “there is a reasonable probability of his suffering

serious physical debilitation within the near future” without involuntary

commitment. N.C. Gen. Stat. § 122C–3(11).




                                          -6-
                                    IN RE W.R.D. III

                                   Opinion of the Court



      The trial court’s commitment order contains only two findings of fact that could

be construed to support these statutory criteria. First, the trial court found that “it

is not medically safe for Respondent to live outside of an inpatient commitment

setting” because “Respondent maintains a belief that another doctor is his treating

physician and will not be treated by Dr. Weigel”; “Respondent is diagnosed with

paranoid schizophrenia, for which Respondent has refused treatment”; and

“Respondent has heart health related issues, for which he is not compliant with

prescribed medical treatment.” Second, the trial court found that Respondent was

“unable to take [sic] maintain his nutrition.” The trial court did not include any

additional findings of fact concerning Respondent’s nutrition.

      Neither of these findings is sufficient to support the trial court’s ruling. With

respect to Respondent’s refusal to acknowledge his mental illness, and refusal to take

his prescription medication, the record does not demonstrate a “reasonable

probability of his suffering serious physical debilitation within the near future”

without immediate, involuntary commitment. To be sure, Dr. Weigel testified that

Respondent’s refusal to take his heart medication “could be deadly,” but he did not

testify that ceasing that medication would create this serious risk “within the near

future.” In similar cases, this Court has held that the evidence must demonstrate “a

reasonable probability” that the health risk will occur in the “near future,” not simply

that it could place the respondent at risk at some future time. See, e.g., In re Whatley,



                                          -7-
                                     IN RE W.R.D. III

                                    Opinion of the Court



224 N.C. App. 267, 273, 736 S.E.2d 527, 531 (2012). Here, there is no evidence that

Respondent’s refusal to take his medication creates a serious health risk in the near

future.

      Second, the trial court’s finding that Respondent was unable to “maintain his

nutrition” is not supported by competent evidence. It is apparently based solely on

the following opinion testimony of Dr. Weigel:

               Q: Have you reached a conclusion, to a degree of medical
               certainty, as to the respondent’s ability to maintain his own
               nourishment and medical care?

               A: I do not think he can maintain that independently.

In an involuntary commitment proceeding like this one, “the premises underlying an

expert’s opinion must be made known to the trier of fact in order that the trier of fact

may properly evaluate the opinion.” In re Collins, 49 N.C. App. at 247, 271 S.E.2d at

75.       In the record, Dr. Weigel’s only testimony concerning Respondent’s

“nourishment” is that he lost some “unknown amount” of weight but that his current

weight was safe.       That testimony is not sufficient to support a finding that

Respondent could not “satisfy his need for nourishment” and faced a “reasonable

probability of his suffering serious physical debilitation” without involuntary

commitment.       Accordingly, the trial court’s findings concerning Respondent’s

inability to “maintain his nutrition” are not supported by competent evidence.




                                           -8-
                                    IN RE W.R.D. III

                                   Opinion of the Court



II.   Danger to Others

      We next turn to the trial court’s finding that Respondent posed a danger to

others. Under N.C. Gen. Stat. § 122C–3(11)(b), an individual is “dangerous to others”

if “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 “there is a reasonable probability that this conduct will

be repeated.”

      The trial court’s commitment order contains only two findings of fact that could

be construed to support these statutory criteria. First, the trial court found that

“Respondent made a threat, although not of physical violence, towards Mr. Connor.”

Second, the trial court found that “Respondent displayed hostile, aggressive

behaviors in interviews” at the hospital. But, importantly, neither of these findings

of fact indicates that Respondent “inflicted,” “attempted to inflict,” “threatened to

inflict,” or “acted in such a way as to create a risk of serious bodily harm” to another.

Indeed, the first finding expressly acknowledges that the “threat” Respondent made

to Connor was not a threat of “physical violence,” much less “serious bodily harm.”

Rather, Respondent warned Connor to stay away or “I’ll sue you into the ground.”

While one might experience some emotional (or metaphorical) pain from being sued,




                                          -9-
                                   IN RE W.R.D. III

                                   Opinion of the Court



the threat to sue someone simply cannot be viewed as a threat to inflict “serious bodily

harm.”

      Likewise, Dr. Weigel’s testimony concerning Respondent’s “intrusive” and

“aggressive” behavior does not support the trial court’s finding that he is a danger to

others. Dr. Weigel testified, in essence, that Respondent was angry and rude after

being institutionalized, and refused to cooperate with the hospital staff:

             [Respondent] has been persistently hostile and intrusive
             and aggressive with [hospital] staff. He has been refusing
             treatment or medications. He has largely refused to be
             interviewed . . . . He was very hostile repeatedly sticking
             his finger in our face yelling paranoid thoughts that his
             guardian—well, that he had no guardian; that his guardian
             was sent by the government to take pictures of his house
             and steal his money; was very forcefully insistent that he
             would refuse treatment and fight it if it was given to him.

Nothing in this testimony indicates that Respondent “has inflicted or attempted to

inflict or threatened to inflict serious bodily harm on another.” See N.C. Gen. Stat. §

122C–3(11)(b).

      Simply put, the record does not support the trial court’s findings that

Respondent was a danger to himself or others. Accordingly, we reverse the trial

court’s commitment order. We note that our holding today does not mean that

Respondent is competent, or that he cannot properly be committed at some future

hearing. We hold only that, on the record in this appeal, the trial court’s findings are




                                          - 10 -
                                      IN RE W.R.D. III

                                      Opinion of the Court



insufficient to satisfy the statutory criteria for involuntary commitment. Accordingly,

we reverse the trial court’s order.

                                        Conclusion

      The trial court’s involuntary commitment order is

      REVERSED.

      Judges ELMORE and DAVIS concur.




                                             - 11 -
