In Re: Zollicoffer, (04-411) 05/17/2005

Appeal by respondent from order entered 11 September 2003 by Judge Garey M. Ballance in District Court, Granville County. Heard in the Court of Appeals 16 February 2005.

Attorney General Roy Cooper, by Assistant Attorney General Angel E. Gray, for the State.

Jean H. Connerat, Office of Special Counsel, John Umstead Hospital, for respondent-appellant.

    McGEE, Judge.

    Dr. Gary Pohl (Dr. Pohl) petitioned for the involuntary commitment of Matthew Zollicoffer (respondent) on 3 September 2003. Respondent had been a patient at the John Umstead Hospital Rehabilitation Unit since 28 May 2003. Dr. Pohl recommended an additional ninety days' commitment and alleged that respondent was "mentally ill and dangerous to self or others or mentally ill and in need of treatment in order to prevent further disability or deterioration that would predictably result in dangerousness."
    A hearing was held on 11 September 2003. In an order dated that same day, the trial court found that respondent was mentally ill and dangerous to himself and others. The trial court also made the following finding:        Based on the evidence presented, the Court
        . . . by clear, cogent and convincing evidence finds as facts all matters set out in the physician's/eligible psychologist's report, specified below, and the report is incorporated by reference as findings.

The order then "specified" a report dated 4 September 2003 that appears to have been prepared by defendant's treating psychiatrist, Dr. Connie Hanes. The trial court ordered that respondent be committed to an inpatient facility for a period not to exceed ninety days.
    We first note that respondent's appeal is not moot, even though the ninety day commitment period has expired. An appeal is not moot "if collateral legal consequences of an adverse nature can reasonably be expected to result therefrom[.]" In re Hatley, 291 N.C. 693, 694, 231 S.E.2d 633, 634 (1977); see also In re Collins, 49 N.C. App. 243, 246, 271 S.E.2d 72, 74 (1980), and In re Mackie, 36 N.C. App. 638, 639, 244 S.E.2d 450, 451 (1978). In Hatley, our Supreme Court recognized that a prior involuntary commitment can be used to damage the credibility of a respondent in future trials, and that records of a prior commitment may be used in subsequent civil commitment proceedings. Hatley, 291 N.C. at 695, 231 S.E.2d at 634-35. Therefore, this appeal is properly before our Court.     Respondent contends that the trial court erred by failing to record sufficient findings of fact to support the conclusion that respondent is dangerous to himself and others. N.C. Gen. Stat. § 122C-268(j) (2003) states:
        To support an inpatient commitment order, the court shall find by clear, cogent, andconvincing evidence that the respondent is mentally ill and dangerous to self, . . . or dangerous to others . . . . The court shall record the facts that support its findings.

The role of our Court on appeal is to determine "(1) whether the [trial] court's ultimate findings are indeed supported by the 'facts' which the [trial] court recorded in its order as supporting its findings, and (2) whether in any event there was competent evidence to support the [trial] court's findings." In re Hogan, 32 N.C. App. 429, 433, 232 S.E.2d 492, 494 (1977). A trial court's duty to record the facts that support its findings is "mandatory." In re Koyi, 34 N.C. App. 320, 321, 238 S.E.2d 153, 154 (1977).
    In this case, the only facts that the trial court recorded in its order as supporting its findings are those which were set out in a physician's report dated 4 September 2003. However, this physician's report does not appear in the record, nor was it ever introduced into evidence at the trial court hearing. Therefore, we cannot determine whether the trial court's findings are supported by the facts that appear in the physician's report. Since the trial court failed to record sufficient facts in its order, as required by statute, we must reverse the trial court's order. In re Neatherly, 28 N.C. App. 659, 661, 222 S.E.2d 486, 487 (1976).
    As this issue is dispositive of this case on appeal, we need not reach respondent's remaining assignments of error.
    Reversed.
    Judges TYSON and GEER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***