In re Whatley ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-837
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
IN THE MATTER OF:
Mecklenburg County
No. 12 SPC 66-RAM
POSHA WHATLEY
Appeal by respondent from order entered 13 February 2013 by
Judge Regan A. Miller in Mecklenburg County District Court.
Heard in the Court of Appeals 9 December 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Charlene Richardson, for Petitioners-Appellee.
Appellate Defender Staples S. Hughes, by Assistant
Appellate Defender John F. Carella, for Respondent-
Appellant.
ERVIN, Judge.
Respondent appeals from an order involuntarily committing
her for inpatient mental health care for a period not exceeding
fifteen days and for an additional period of outpatient care not
to exceed ninety days. On appeal, Respondent argues that the
trial court’s findings of fact relating to the issue of
dangerousness to herself and others lack adequate evidentiary
support. After careful consideration of Respondent’s challenges
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to the trial court’s order in light of the record and the
applicable law, we conclude that the trial court’s order should
be vacated.
I. Factual Background
A. Substantive Facts
1. Pre-Hearing Reports
As of 5 January 2012, Dr. Amishi Shah determined that
Respondent was bipolar; had been admitted to the hospital “with
psychosis while taking care of her 2 month old”; remained
“disorganized, paranoid,” “refus[ed her] meds at times,” and
“clearly represents [a] danger if not treated.”1 On the
following day, Dr. Noel Ibanez stated that Respondent “continues
to exhibit bizarre, psychotic behavior [and an] inability to
care for [her]self”; that she had “poor insight [and] poor
impulse control”; and that she “[p]laced herself directly at
risk of harm.” As of 12 January 2012, Dr. Shah expressed the
opinion that Respondent “remain[ed] paranoid” and “disorganized”
with “poor insight[, and] judgment”; that she had “initially
presented as manic [and] psychotic while caring for two month
1
On the same date, Dr. Shah signed an examination report in
which she stated that Respondent had a history of bipolar
disorder; that she had been admitted to the hospital “with
psychosis, erratic behavior, and inability to care for [her] 2
month old”; that she “remain[ed] provocative” and “paranoid”;
that she “periodically refus[ed her] medications”; and that she
had “very poor insight [and] judgment and requir[ed] continued
inpatient treatment.”
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old”; that “[s]he need[ed] continued inpatient stay for
medication stabilization”; and that she was “clearly at risk to
[her]self if discharged too soon.” On 18 January 2012, Dr. Shah
concluded that Respondent, who had “a h[istory] of [b]ipolar
d[isorder,]” had been “admitted [with] psychosis while taking
care of her two month old son”; that she “remain[ed] paranoid,
disorganized, [and] intrusive”; that “[s]he tells me that she
does not plan to follow up as an outpatient”; and that she had
“very poor insight, judgment and needs continued stabilization.”2
2. Evidence in Support of Petition
a. Dr. Shah’s Testimony
At the evidentiary hearing held before the trial court, Dr.
Shah testified that Respondent “was initially hospitalized for a
manic episode with [post-partum] psychosis”; that she had “left
her child at home”; and that “[s]he was brought in . . . by her
sister because she was displaying psychotic . . . behavior that
was putting herself and her child at risk.” More specifically,
Dr. Shah diagnosed Respondent as suffering from bipolar
disorder, which is characterized by “mania and psychotic
features.” At the time of her initial admission, Respondent was
2
As best we have been able to determine from our examination
of the record, none of the reports summarized in this portion of
our opinion were admitted into evidence at the hearing held
before the trial court in this proceeding despite the fact that
the admission of properly certified expert reports is authorized
by N.C. Gen. Stat. § 122C-268(f).
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“very disorganized, paranoid,” and “more focused on being
potentially dyslexic and feeling like she has ADD rather than
focusing on . . . the more acute mental illness issues that are
impacting her functioning.” According to Dr. Shah, Respondent
remained “manic and psychotic” and the treating physicians were
“continuing to adjust her medications,” having “had some
difficulty finding the right medication [regimen] for her.” In
fact, Dr. Shah had adjusted Respondent’s medication on the date
of the hearing. Dr. Shah testified that Respondent “ha[d] a
history of non-compliance to treatment” and had been “quite
guarded and hesitant about even following through with this
treatment,” a fact “which g[ave Dr. Shah] additional cause for
concern about discharging her too soon.” However, Dr. Shah
acknowledged that Respondent had been compliant with her
medication regimen for the last one to two weeks. When asked
why she thought that Respondent posed a danger to herself, Dr.
Shah stated that she did not “think that she’s thinking clearly
enough to be able to care for herself as an outpatient right
now,” with Dr. Shah having reached this conclusion based on “her
behavior,” the fact that “[s]he remains . . . very disorganized
in her speaking” and “in her behavior,” and her inability to
“imagine that [Respondent] could take her medications on her
own.
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b. Statements of Respondent’s Sister
After the conclusion of Dr. Shah’s testimony and before the
presentation of Respondent’s evidence, the trial court asked,
“with whom is [Respondent] living right now.” In response to
additional questions posed by the trial court, Respondent’s
sister, Nadia Campbell, stated that Respondent had been living
with her husband before the present proceeding began, that
Respondent’s husband was “running from the law,” that Ms.
Campbell brought Respondent to the hospital, and that, on the
occasion in question, Ms. Campbell had come to Respondent’s
house at about 9:00 p.m., that Respondent was sitting on her
couch with the front door open, that Respondent’s child was
shaking, and that Respondent claimed to be ready to go to an
appointment.3
3. Respondent’s Evidence
Respondent testified that, upon release, she planned to
live with her husband’s aunt and uncle, who made their home in
Georgia and were keeping her infant child. Respondent disputed
the validity of Dr. Shah’s concern that she would not “comply
with outpatient treatment,” stating that she and her husband,
who also suffered from a mental illness, would “both together
3
The record does not contain any indication that either Ms.
Campbell or Respondent’s mother, who also participated in this
and a later colloquy with the trial court, were ever sworn or
made subject to cross-examination.
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monitor each other’s medications and go to doctors together.”
According to Respondent, she could call on her husband and take
advantage of assistance offered by other family members.
4. Conclusion of the Evidentiary Hearing
After the completion of Respondent’s testimony, the trial
court inquired if “anyone else want[ed] to provide any
information.” In response to this inquiry, Respondent’s mother
stated, over an objection lodged by Respondent’s trial counsel,
that Respondent had failed to take her medication two or three
years earlier. After Respondent responded to this assertion by
stating that her family had taken “everything away from [her] at
that time,” Respondent’s trial counsel requested to be heard,
after which the trial court heard a final argument from
Respondent’s trial counsel and announced its decision.
B. Procedural History
On 5 January 2012, Dr. Shah submitted an affidavit and
petition seeking to have Respondent involuntarily committed and
conducted the necessary initial evaluation. A magistrate
entered an order involuntarily committing Respondent later that
day. After a second evaluation conducted on the following day,
Dr. Shah determined that Respondent was mentally ill and
dangerous to herself. After a commitment hearing was scheduled
for 13 January 2012, Dr. Shah conducted another evaluation of
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Respondent on the day prior to the scheduled hearing and
recommended that Respondent be involuntarily committed for a
period of thirty days on the grounds that Respondent was
paranoid and “clearly at risk to [her]self.”
At Respondent’s request, the 13 January 2012 hearing was
continued until 18 January 2012. On the morning of the
rescheduled hearing, Dr. Shah evaluated Respondent again and
recommended that she be committed for a fifteen day period
followed by a period of outpatient treatment given Respondent’s
statement that she did not plan to participate in outpatient
treatment; “remain[ed] paranoid, disorganized, [and] intrusive;”
had taken care of her two-month old son while psychotic; and
“need[ed] continued stabilization.” At the conclusion of the 18
January 2012 hearing, the trial court entered an order providing
that Respondent be involuntarily committed on an inpatient basis
for a period of fifteen days and that she be involuntarily
committed on an outpatient basis for an additional period not to
exceed ninety days. Respondent noted an appeal to this Court
from the trial court’s order.
On 18 December 2012, this Court filed an opinion reversing
the trial court’s order and remanding this case to the trial
court for further proceedings not inconsistent with our opinion
on the grounds that the trial court had failed to make
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sufficient findings of fact to support its involuntary
commitment decision. On 13 February 2013, without receiving any
additional evidence or hearing additional arguments from the
parties, the trial court entered an order containing additional
findings of fact and concluding that Respondent should be
involuntarily committed on an inpatient basis for a period of
fifteen days and that she should be involuntarily committed on
an outpatient basis for an additional period not to exceed
ninety days. Respondent noted an appeal to this Court from the
trial court’s order on remand.
II. Legal Analysis
In her brief, Respondent argues that the trial court’s
order lacks adequate evidentiary support. More specifically,
Respondent argues that the record does not support the trial
court’s determination that she posed a danger to herself or
others as required by the relevant statutory provisions.
Respondent’s argument has merit.
A. Standard of Review
The standard of review utilized in reviewing involuntary
commitment orders is well-established.
On appeal of a commitment order our function
is to determine whether there was any
competent evidence to support the “facts”
recorded in the commitment order and whether
the trial court’s ultimate findings of
mental illness and dangerous to self or
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others were supported by the “facts”
recorded in the order. In re Underwood, 38
N.C. App. 344, 347-48, 247 S.E.2d 778, 781
(1978); In re Hogan, 32 N.C. App. 429, 433,
232 S.E.2d 492, 494 (1977). We do not
consider whether the evidence of
respondent’s mental illness and
dangerousness was clear, cogent and
convincing. It is for the trier of fact to
determine whether the competent evidence
offered in a particular case met the burden
of proof. In re Underwood, supra, at 347,
247 S.E.2d at 781.
In re Collins, 49 N.C. App. 243, 246, 271 S.E.2d 72, 74 (1980).
Thus, the ultimate issue that we must resolve in this case is
whether the trial court’s findings that Respondent was dangerous
to herself and others had adequate evidentiary support.
B. Overview of Involuntary Commitment Process
The involuntary commitment process is initiated by the
execution of an affidavit and the submission of a petition
alleging that the respondent is mentally ill and a danger to
herself or others as those terms are defined in the relevant
statutory provisions. N.C. Gen. Stat. § 122C-261(a). Assuming
that the reviewing magistrate or clerk believes, based upon an
examination of the petition and the affidavit, that there are
reasonable grounds for believing that the respondent is mentally
ill, the respondent may be ordered to undergo a mandatory
evaluation. N.C. Gen. Stat. § 122C-261(a)-(b). In the event
that the person conducting the evaluation concludes that the
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respondent is mentally ill and a danger to either herself or
others, the evaluator must set out the basis for this
determination in writing and recommend that the respondent
receive inpatient commitment. N.C. Gen. Stat. § 122C-263(d)(2).
A second evaluation must be conducted within twenty-four hours
of the respondent’s arrival at the inpatient facility to which
he or she was committed. Assuming that the respondent is found
to be mentally ill and a danger to herself or others at this
second evaluation, the respondent must be held until the
commitment hearing. N.C. Gen. Stat. § 122C-266(a)(1).
“To support an inpatient commitment order, the court shall
find by clear, cogent, and convincing evidence that the
respondent is mentally ill and dangerous to self, as defined in
[N.C. Gen. Stat. §] 122C-3(11)a, or dangerous to others, as
defined in [N.C. Gen. Stat. §] 122C-3(11)b,” with the court
being required to “record the facts that support its findings.”
N.C. Gen. Stat. § 122C-268(j). According to the relevant
statutory provisions:
a. “Dangerous to himself” means that
within the relevant past:
1. The individual has acted in such a
way as to show:
I. That he would be unable,
without care, supervision,
and the continued assistance
of others not otherwise
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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[.]
. . . .
Previous episodes of dangerousness to
self, when applicable, may be
considered when determining reasonable
probability of physical debilitation,
suicide, or self-mutilation.
b. “Dangerous to others” means that 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 . . .
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and that there is a reasonable
probability that this conduct will be
repeated. Previous episodes of
dangerousness to others, when
applicable, may be considered when
determining reasonable probability of
future dangerous conduct. . . .
N.C. Gen. Stat. § 122C-3(11).
In our initial opinion in this case, we noted that:
The trial court here found the following
facts “by clear, cogent and convincing
evidence”:
Respondent was exhibiting psychotic
behavior that endangered her and her
newborn child. She is bipolar and was
experiencing a manic stage. She was
initially noncompliant in taking her
medications but has been compliant over
the past 7 days. Respondent continues
to exhibit disorganized thinking that
causes her not to be able to properly
care for herself. She continues to
need medication monitoring. Respondent
has been previously involuntarily
committed.
In re Whatley, __ N.C. App. __, __, 736 S.E.2d 527, 530 (2012).
After noting that the trial court appeared to have sought to
incorporate Dr. Shah’s 18 January 2012 report into its order by
reference, we assumed, without deciding, that the contents of
this report should be treated as additional findings of fact,
stating:
This report set forth the following
findings:
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Patient admitted [with] psychosis while
taking care of her two month old son.
She has a [history of] Bipolar
[disorder]. She remains paranoid,
disorganized, intrusive. She tells me
that she does not plan to follow up as
an outpatient. She has very poor
insight [and] judgment and needs
continued stabilization.
Id. (alterations in original). After noting the nature and
extent of the trial court’s findings, we held that, “even
assuming that the trial court successfully incorporated the
contents of Dr. Shah’s 18 January 2012 report into its order,
the order was still insufficient to support Respondent’s
involuntary commitment” because “[e]ach of the trial court’s
findings pertain[ed] to either Respondent’s history of mental
illness or her behavior prior to and leading up to the
commitment hearing” without “indicat[ing] that these
circumstances rendered Respondent a danger to herself in the
future.” Id. at __, 736 S.E.2d at 530-31.
In its order on remand, the trial court found as a fact
that:
1. [A]ll matters set forth in the
physician report by Dr. Shah dated January
18, 2012 and the report [are] incorporated
herein by reference as findings.
2. At the time of admission, Respondent
was exhibiting psychotic behavior that
endangered her and her newborn child. The
child had to be removed from her custody by
family members because of her inability to
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care for the child. She is bipolar and was
experiencing a manic stage. She was
initially noncompliant in taking her
medications and her condition had not
stabilized, although she has been compliant
over the past seven (7) days.
3. Respondent continues to exhibit
disorganized thinking that causes her not to
be able to properly or safely care for
herself or her child. Respondent continues
to need further medication monitoring to
establish the correct dosage before being
released from the hospital.
4. Respondent has been previously
involuntarily committed.
5. Respondent remains paranoid and
continues to have very poor insight into the
nature and extent of her mental illness.
Her failure to continue taking the
prescribed medication in the correct dosage
presents a threat of serious physical
debilitation in the near future that will
endanger her and creates a reasonable
probability in the future of a repetition of
the grossly irrational behavior that created
a substantial risk of serious harm to her
two-month-old child.
Thus, the ultimate issue before us is whether the record
contains sufficient evidence to support these findings, in which
the trial court essentially determined that Respondent was
dangerous to herself or others based upon her “failure to
continue taking the prescribed medication in the correct
dosage.”4
4
A principal pillar underlying the State’s argument that the
record contained sufficient evidence to support the trial
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At the hearing, Dr. Shah testified that (1) she was
continuing to adjust Respondent’s medications; (2) it had been
difficult to develop a proper medication regimen for Respondent;
(3) she had increased the amount of medication that Respondent
was supposed to consume on the day of the hearing; (4)
Respondent had been compliant with her medication regimen for
between seven and fourteen days; and (5) she did not believe,
based upon statements that Respondent had made to her, that
Respondent would take her medication on her own. Although this
evidence might suffice to show that there was some risk that
Respondent would fail to comply with her medication regimen and
although it might be reasonable to infer that Respondent and her
child would be better off if she took her medication as
prescribed, the record before us is completely devoid of any
information concerning the results which one might reasonably
expect in the event that Respondent took her medication as
court’s “danger to self or others” determination assumes that
the statements by Respondent’s sister and mother during the
course of the hearing should be treated as properly admitted
evidence. Although the parties have vigorously disputed whether
the State’s assumption that the statements made by Respondent’s
sister and mother should be deemed to be part of the evidentiary
record, we need not resolve that issue given that the finding in
question refers to Respondent’s “behavior prior to and leading
up to the commitment hearing,” a factor which is “not [an]
indicat[ion] that these circumstances rendered Respondent a
danger to herself [or her child] in the future,” Whatley, __
N.C. App. at __, 736 S.E.2d at 531, and given that we have
concluded that the trial court’s order should be vacated on
other grounds.
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intended or the impact which any failure on Respondent’s part to
comply with her medication regimen would have upon her ability
to avoid seriously debilitating herself or inflicting serious
bodily injury upon her child. In the absence of such evidence,
we are unable to see how the trial court had an adequate basis
for concluding that serious physical debilitation or serious
bodily injury was likely to result from any non-compliance on
Respondent’s part with her medication regimen. Although the
State argues that such deleterious results can be inferred from
the fact that Respondent was psychotic and that she had exposed
her child to the cold, that argument effectively asks us to
speculate about subjects which should be addressed in the
testimony received at the hearing. As a result, we conclude
that the trial court’s findings of fact concerning the extent to
which Respondent’s mental condition made her dangerous to
herself or others lack adequate record support, a determination
which requires us to vacate the trial court’s order.5 In re
Salem, 31 N.C. App. 57, 62, 228 S.E.2d 649, 652 (1976) (vacating
an involuntary commitment order which this Court found to lack
sufficient evidentiary support).
5
Although Respondent has advanced additional constitutional
and evidentiary challenges to the trial court’s remand order, we
need not address these arguments in light of our decision to
vacate the trial court’s remand order on the grounds set forth
in the text of this opinion.
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III. Conclusion
Thus, we conclude that the record developed before the
trial court does not suffice to permit a determination that
Respondent should be subject to involuntary commitment. As a
result, the trial court’s order should be, and hereby is,
vacated.
VACATED.
Chief Judge MARTIN and Judge MCCULLOUGH concur.
Report per Rule 30(e).