1. Mental Illness--involuntary commitment--hearsay information
The trial court did not err by failing to dismiss the petition for involuntary commitment
even though information contained in the affidavit and petition for involuntary commitment
presented to the magistrate contained hearsay, because: (1) the Court of Appeals has previously
held that a magistrate may consider hearsay evidence as a basis for issuing an involuntary
commitment custody order despite the pertinent statute's silence on the issue; (2) though any
deprivation of a person's liberty through an involuntary commitment custody order is an
intrusion on that person's liberties, our laws provide for a rapid and thorough review of this
action; (3) the two psychological examinations and the hearing within 10 days of the initial
detainment provides respondent with adequate assurance that he is not being improperly
detained; and (4) a hearing before a magistrate under N.C.G.S. § 122C-261 upon a petition for
the involuntary commitment of a person is a miscellaneous proceeding under Rule 1101, and the
rules of evidence do not apply.
2. Mental Illness--involuntary commitment--dangerous to self
The trial court did not err in a mental illness hearing by finding as a matter of law that
respondent was dangerous to himself and did not fail to specifically state findings of fact in
support of this conclusion, because the failure of a person to properly care for his medical needs,
diet, grooming, and general affairs meets the test of dangerousness to self.
Willa G. Mills, for respondent-appellant.
Attorney General Roy Cooper, by Assistant Attorney General
Angel E. Gray, for the State.
STEELMAN, Judge.
Lori Lowder, mother of respondent, petitioned for the
involuntary commitment of respondent pursuant to N.C. Gen. Stat. §
122C-261 (2003) on 27 May 2003. The affidavit and petition
requesting respondent's commitment alleged that “the respondent had
a history of mental illness;” that he was a diagnosed paranoidschizophrenic; that he “is not on medication at this time and when
prescribed refused to take it;” that he “made threats to other
residents [of his apartment complex] that he was going to kill
them, and put his vehicle in reverse to try to back over some
children;” that respondent “seemed very agitated” when he spoke
with his grandfather; and that he refused to allow anyone in his
apartment. Based on this petition, a magistrate signed an order
involuntarily committing respondent for mental health examination.
Respondent was examined by Dr. Nawab Alnaquib of Centerpoint Human
Services on 27 May 2003. Dr. Alnaquib determined that respondent
had been non-compliant with his required medications; that he had
made “homicidal threats that he would attack residents and kill
them;” and that he “would want to reverse his vehicle back on
children and kill them.” Dr. Alnaquib expressed the opinion that
respondent was mentally ill, dangerous to himself and others, and
should be admitted to John Umstead Hospital for treatment.
Respondent was sent to Umstead Hospital, and examined by Dr.
Rosario Hidalgo. Dr. Hildalgo diagnosed respondent as having
chronic paranoid schizophrenia and as being non-compliant with
treatments. She further determined that respondent was “having
dangerous behavior towards self and others.” Dr. Hidalgo admitted
respondent for treatment at Umstead Hospital.
A hearing was held on 5 June 2003 in the District Court of
Granville County, before Judge Senter, pursuant to the provisions
of N.C. Gen. Stat. § 122C-267(a)(2003). Respondent moved to
dismiss the proceedings based on insufficiency of the affidavit and
petition for involuntary commitment. Judge Senter denied thismotion. The State offered into evidence an affidavit from Dr.
Catherine Soriano, respondent's attending physician at Umstead
Hospital. The affidavit contained Dr. Soriano's opinion that
respondent was not complying with his medication requirements; was
not participating fully in his treatment; appeared paranoid; that
she suspected he was witholding information about himself in an
attempt to “expedite his release;” that he does not accept he is
mentally ill; he requires inpatient treatment; and based on the
behavior indicated in the petition, that he “may present a risk for
danger to others” as well as himself. Dr. Soriano recommended
ninety days of inpatient treatment. Respondent's mother testified
that respondent “continued to get worse since his last admission.”
She further testified that respondent's apartment was in disarray,
there were holes in the walls, his furniture was “destroyed,” and
his refrigerator was unplugged and empty. She further testified
that she had repaired respondent's apartment two or three times in
the past; that he had been evicted and had nowhere to live; that he
had threatened her on one occasion; that respondent had been
involuntarily committed on three previous occasions; and that his
family had attempted to get respondent to attend outpatient
treatment five different times. Respondent testified, and denied
his mental illness, denied the threats at his apartment complex,
and denied having caused the damage in his apartment. Judge Senter
found that respondent was mentally ill and dangerous to himself,
and committed him to Umstead Hospital for a period not to exceed
ninety days. Respondent appeals. [1] In respondent's first assignment of error he argues that
the trial court erred by failing to dismiss the petition for
involuntary commitment because some of the information contained in
the affidavit and petition for involuntary commitment presented to
the magistrate was hearsay. We disagree.
N.C.R. Evid. Rule 802 states that “hearsay is not admissible
except as provided by statute or by these rules.” N.C.R. Evid.
Rule 1101 exempts certain proceedings from the Rules of Evidence,
including Rule 1101(b)(3), which exempts “Miscellaneous
Proceedings.” These miscellaneous proceedings include “Proceedings
for extradition or rendition; first appearance before district
court judge or probable cause hearing in criminal cases;
sentencing, or granting or revoking probation; issuance of warrants
for arrest, criminal summonses, and search warrants; proceedings
with respect to release on bail or otherwise.”
N.C. Gen. Stat. §
122C-261 (2004) provides the authority for involuntary commitment
for mentally ill persons not requiring immediate hospitalization.
N.C. Gen. Stat. § 122C-261
states in pertinent part:
(a) Anyone who has knowledge of an individual
who is mentally ill and either (i) 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., or (ii) in need of treatment in
order to prevent further disability or
deterioration that would predictably result in
dangerousness, may appear before a clerk or
assistant or deputy clerk of superior court or
a magistrate and execute an affidavit to this
effect, and petition the clerk or magistrate
for issuance of an order to take the
respondent into custody for examination by a
physician or eligible psychologist. The
affidavit shall include the facts on which the
affiant's opinion is based.
(b) If the clerk or magistrate finds
reasonable grounds to believe that the facts
alleged in the affidavit are true and that the
respondent is probably mentally ill and either
(i) 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., or (ii) in need
of treatment in order to prevent further
disability or deterioration that would
predictably result in dangerousness, the clerk
or magistrate shall issue an order to a law
enforcement officer or any other person
authorized under G.S. 122C-251 to take the
respondent into custody for examination by a
physician or eligible psychologist.
(emphasis added). N.C. Gen. Stat. § 122C-261
does not expressly
state whether the affiant's knowledge must be based on personal
knowledge or whether it can be in whole or in part based upon
hearsay. This Court has determined that a person facing
involuntary commitment
“is entitled to the safeguard of a
determination by a neutral officer of the court that reasonable
grounds exist for his original detention just as he would be if he
were to be deprived of liberty in a criminal context.
”
In re Reed,
39 N.C. App. 227, 229, 249 S.E.2d 864, 866 (1978)(This opinion was
written under the former involuntary commitment statute N.C. Gen.
Stat. § 122-58.3).
“'Reasonable grounds' has been found to be
synonymous with 'probable cause[.]'” Id. citing State v. Shore, 285
N.C. 328, 204 S.E.2d 682 (1974). We find that the requirements for
a custody order under N.C. Gen. Stat. § 122C-261 are analogous to
those where a criminal suspect is subject to loss of liberty
through the issuance of a warrant for arrest. In both instances a
magistrate or other approved official must find probable cause
(though under N.C. Gen. Stat. § 122C-261 the synonymous term
reasonable grounds is used) supporting the issuance of the order orwarrant. In both cases the magistrate has the power to deprive a
person of his liberty pending a more thorough and demanding
determination of the evidence against him. As our Supreme Court
has stated in the criminal context:
Probable cause “does not mean actual and
positive cause, nor does it import absolute
certainty. The determination of the existence
of probable cause is not concerned with the
question of whether the offense charged has
been committed in fact, or whether the accused
is guilty or innocent, but only with whether
the affiant has reasonable grounds for [his]
belief.
State v. Campbell, 282 N.C. 125, 129, 191 S.E.2d 752, 756
(1972)(citation omitted). “The affidavit may be based on hearsay
information and need not reflect the direct personal observations
of the affiant[.]” Id.
(This discussion was in the context of a
challenge to a search warrant. However, the probable cause
requirements for the issuance of a search warrant and an arrest
warrant are the same. State v. Harvey, 281 N.C. 1, 187 S.E.2d 706
(1972)
).
Hearsay evidence is sufficient to support an affidavit
supporting an arrest warrant, even though not admissible to prove
guilt at trial because: “There is a large difference between the
two things to be proved [guilt and probable cause],
as well as
between the tribunals which determine them,
and therefore a like
difference in the quanta and modes of proof required to establish
them.”
Jones v. United States, 362 U.S. 257, 270, 4 L. Ed. 2d 697,
HR14 (1960) Overruled on other grounds by United States v.
Salvucci, 448 U.S. 83, 65 L. Ed. 2d 619 (1980)(citing
Brinegar v.United States, 338 U.S. 160, 172,
93 L. Ed. 1879 (1949);
N.C. Gen.
Stat. § 1101(b)(3).
In In re Hernandez, 46 N.C. App. 265, 270, 264 S.E.2d 780, 783
(1980)
this Court held that a magistrate could rely on hearsay
evidence presented by a police officer to issue a custody order for
involuntary commitment. Hernandez was decided under former N.C.
Gen. Stat. § 122-58.18
pertaining to law enforcement officers who
take mentally ill persons into custody. Former N.C. Gen. Stat. §
122-58-18 required the law enforcement officer to execute an
affidavit under
former N.C. Gen. Stat. § 122-58.3
. Former
N.C.
Gen. Stat. § 122-58.3(a) provided:
Any person who has knowledge of a mentally ill
or inebriate person who is imminently
dangerous to himself or others . . . may
appear before a clerk or assistant or deputy
clerk of superior court or a magistrate of
district court and execute an affidavit to
this effect and petition the clerk or
magistrate for issuance of an order to take
the respondent into custody for examination by
a qualified physician. The affidavit shall
include the facts on which the affiant's
opinion is based.
This Court in Hernandez reasoned in support of its ruling, “the
legislature has provided further protection for the respondent in
circumstances such as the one before us by requiring that a hearing
shall be held in district court within ten days of the day the
respondent is taken into custody, at which time the legislature has
made adequate provision for protection of the respondent's rights.”
Hernandez, 46 N.C. App. at 269, 264 S.E.2d at 782. This Court has
thus previously held that a magistrate may consider hearsay
evidence as a basis for issuing an involuntary commitment custody
order, despite the statute's silence on the issue. Our current law is quite similar to that under which Hernandez
was decided. Within a reasonable time after a respondent subject
to an involuntary commitment order of a magistrate is taken in
custody, he must be transported to an approved facility. N.C. Gen.
Stat. § 122C-263 (2003). Within 24 hours of arrival at the
facility, he must be examined by a physician or eligible
psychologist. Id. If the physician or eligible psychologist makes
a determination that the respondent is a danger to self or others,
he shall recommend inpatient treatment. Id. At a time no later
than the next business day following the finding of dangerousness
to self or others under N.C. Gen. Stat. § 122C-263, the respondent
must be examined a second time by a physician, and if the
respondent is again determined to be a danger to self or others, he
will be detained pending a full hearing before the district court.
N.C. Gen. Stat. § 122C-266 (2003). The hearing shall be held
within 10 days of respondent's being taken into custody. N.C. Gen.
Stat. § 122C-268 (2003).
Though any deprivation of a person's liberty through an
involuntary commitment custody order is an intrusion on that
person's liberties, our laws provide for a rapid and thorough
review of this action. We must strike a balance between the
intrusion on personal liberty and the need for an efficient method
of protecting the public from those who may be dangerous to either
themselves or others due to mental illness. It is reasonable in
both the criminal and involuntary commitment contexts to allow
magistrates and other approved officials to order a brief detention
based on hearsay evidence, provided there is a mechanism in placeto review the detainment within a reasonable period of time. The
two psychological examinations and the hearing within 10 days of
the initial detainment in this context provides respondent with
adequate assurance that he is not being improperly detained.
We hold that a hearing before a magistrate under N.C. Gen.
Stat. § 122C-261 upon a petition for the involuntary commitment of
a person is a “miscellaneous proceeding” under Rule 1101, and the
rules of evidence do not apply. This assignment of error is
without merit.
[2] In respondent's second and third assignments of error he
argues the trial court erred by finding as a matter of law that
respondent was dangerous to himself, because the evidence was
insufficient to support that finding, and the trial court failed to
specifically state findings of fact in support of this conclusion.
We disagree.
N.C. Gen. Stat. § 122C-271(b)(2) (2003) states: “If the court
finds by clear, cogent, and convincing evidence that the respondent
is mentally ill and is dangerous to self, as defined in G.S.
122C-3(11)a., or others, as defined in G.S. 122C-3(11)b., it may
order inpatient commitment at a 24-hour facility described in G.S.
122C-252 for a period not in excess of 90 days.” “The trier of
fact alone must determine whether the evidence presented is clear,
cogent and convincing. Our only function on appeal is to determine
whether there was any competent evidence to support the factual
findings made.” In re Medlin, 59 N.C. App. 33, 36, 295 S.E.2d 604,
606 (1982)(This opinion was decided under the now repealed N.C.
Gen. Stat. § 122-58.7(i)). Respondent does not contest the conclusion that he is mentally
ill, he only contests the conclusion that he presents a danger to
himself. 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.
“
We have held specifically that the failure of a person to
properly care for his/her medical needs, diet, grooming and general
affairs meets the test of dangerousness to self.”
In re Lowery, 110
N.C. App. 67, 72, 428 S.E.2d 861, 864 (1993)
(citation omitted).
Judge Senter's findings of fact support his conclusion of law that
respondent is dangerous to himself. These assignments of error are
without merit.
AFFIRMED.
Judges TYSON and BRYANT concur.
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