Matter of Underwood , 38 N.C. App. 344 ( 1978 )

247 S.E.2d 778 (1978) 38 N.C. App. 344

In the Matter of Eugene UNDERWOOD.

No. 7712DC1022.

Court of Appeals of North Carolina.

October 17, 1978.

Atty. Gen. Rufus L. Edmisten by Christopher S. Crosby, Associate Atty., Raleigh, for petitioner-appellee.

Tye Hunter, Asst. Public Defender, Fayetteville, for respondent-appellant.

PARKER, Judge.

Respondent's attorney moved in the District Court to dismiss the petition because the hearing was not held within ten days of the day respondent was taken into custody as required by G.S. 122-58.7(a). The denial of this motion is the subject of respondent's first assignment of error. We find no merit in this assignment of error.

An involuntary commitment proceeding under Art. 5A of G.S., Chap. 122, is a proceeding of a civil nature which is governed by pertinent Rules of Civil Procedure. G.S. 1A-1, Rule 1. Rules 6(a) of the Rules provides that when the last day of a period of time prescribed by an applicable statute is a Saturday, Sunday, or a legal holiday, the period runs to the end of the next day which is not a Saturday, Sunday, or a legal holiday. Respondent in the present case was taken into custody on 4 August 1977. The tenth day thereafter fell on Sunday, 14 August 1977. The hearing was held in the District Court on the following day, Monday, 15 August 1977. Thus, in this case the hearing called for by G.S. 122-58.7(a) was held in apt time. We do not suggest that dismissal of the proceeding would have been required had the hearing been delayed for a few days beyond the ten day period specified in G.S. 122-58.7(a). On the present record that question is not presented, and we express no opinion concerning it. Respondent's first assignment of error is overruled.

Respondent next contends that his motion to dismiss made at the conclusion of petitioner's evidence should have been allowed because there was no clear, cogent, and convincing evidence upon which the court could base its findings that respondent was mentally ill or inebriate and imminently dangerous to self or others. In support of this contention respondent points out that no testimony was presented from any qualified physician and no reports or findings of a qualified physician or records from a mental health facility were admitted into evidence. From our reading of the involuntary commitment statutes, however, we do not infer that an order of commitment may issue only when the requisite factual findings are supported by competent medical evidence. In re Benton, 26 N.C.App. 294, 215 S.E.2d 792 (1975). All that is required is that the court make the essential findings from "clear, cogent, and convincing evidence." G.S. 122-58.7(i). It is for the trier of fact to determine whether evidence offered in a particular case is clear, cogent, and convincing. In re Hatley, 291 N.C. 693, 231 S.E.2d 633 (1977); 2 Stansbury's N.C. Evidence (Brandis Rev. 1973), § 213, p. 162. Our function on appeal is simply to determine whether there was any competent evidence to support the factual findings made. In the present case the trial court, as finder of the facts, expressly stated in the order appealed from that its factual findings were made "by clear, cogent and convincing evidence." We find that, although there was no evidence to support a finding that respondent was an inebriate, the petitioner's testimony furnished competent evidence to support the trial court's factual findings set forth in its Finding No. 4. These factual findings in turn furnished ample support for the court's ultimate findings that respondent was mentally ill and imminently dangerous to self or others upon which the commitment order was based. There was no error in the denial of respondent's motion to dismiss.

Respondent next contends that the commitment order must be reversed because the oral findings announced by the court on the day of the hearing were incomplete. This contention has no merit. The court's order was ultimately embodied in the written commitment order signed by the judge on 16 August 1977, and it is that order which is the subject of this appeal. The trial court had power during the term to modify or add to its decree. Chriscoe v. Chriscoe, 268 N.C. 554, 151 S.E.2d 33 (1966).

Finally, respondent assigns error to the court's Finding No. 5 which concerns the examination of the respondent by a qualified physician on 4 August 1977, the day he was taken into custody. Respondent correctly points out that no evidence of this examination was introduced at the hearing. Even so, the court's commitment order can be sustained. As above noted, the court's ultimate findings on which that order was based, that respondent was mentally ill and imminently dangerous to self or others, were amply supported by the court's detailed factual findings contained in Finding No. 4. Therefore, respondent can show no prejudice by the inclusion of Finding No. 5 in the order.

The order appealed from is

Affirmed.

HEDRICK and ROBERT M. MARTIN, JJ., concur.