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In re Holt

Filed: October 20, 1981.

IN THE MATTER OF WALTRAUD H. HOLT


Appeal by respondent from Cherry, Judge. Order entered 5 January 1981 in District Court, Cumberland County. Heard in the Court of Appeals 22 September 1981.

Whichard, Judge. Judges Hedrick and Hill concur.

Whichard

The involuntary commitment statute, G.S. 122-58.7(i), required as a condition to a valid commitment order that the district court find, by clear, cogent, and convincing evidence, two distinct facts: first, that respondent was mentally ill or inebriate, as those words are defined in G.S. 122-36; and second, that respondent was dangerous to herself or others. In re Carter, 25 N.C. App. 442, 213 S.E.2d 409 (1975).

The court found, in its oral ruling and its written order, that respondent was mentally ill. The record contains competent evidence, medical and non-medical, to support this finding. It is thus conclusive on appeal, and the first of the two statutory requirements is satisfied. In re Underwood, 38 N.C. App. 344, 247 S.E.2d 778 (1978).

To satisfy the second requirement there must be (1) findings to support a conclusion that respondent was dangerous to herself or others, and (2) competent evidence to support such findings. Id. With reference to whether respondent was dangerous to herself, the oral ruling contained a finding that she was "presently incapable of managing her own affairs, incapable of properly caring for herself as to medication or as to proper nourishment." The written order contained a finding that she was "incapable of properly caring for her medical needs, diet, grooming and general affairs." These findings, if supported by competent evidence, would support a conclusion that respondent was dangerous to herself.

Petitioner concedes that the portion of the findings relating to respondent's incapacity properly to care for herself as to

medication "does not appear from the record to be based on the evidence." The evidence likewise in no way indicates respondent's incapacity to care for her grooming needs.

As to the remaining portion of these findings, which relates to respondent's incapacity to care for herself in terms of proper nourishment and diet, the psychiatrist who examined her four days before the hearing testified:

By incapable of managing her own affairs I mean that in the withdrawn state she would not feed herself properly and do those things for herself that would maintain proper health. I have no personal knowledge of her not feeding herself properly. I only know what she said. She said that she would not eat if she suspected the food was poisoned.

While this witness testified that respondent "ha[d] a history of . . . severe withdrawn state," he did not testify that she was at that time experiencing it. Because his testimony that respondent "would not feed herself properly and do those things for herself that would maintain proper health" related only to when she was "in the withdrawn state," absence of evidence that she was in that state at the time the ruling was made renders the evidence insufficient to support the findings that respondent was incapable of properly caring for herself "as to proper nourishment" and "diet." The evidence that respondent "would not eat if she suspected the food was poisoned" merely indicates normal behavior expected of any reasonable person. It thus is also insufficient to support the findings.

"Our function on appeal is . . . to determine whether there was any competent evidence to support the factual findings made." Underwood, 38 N.C. App. at 347-348, 247 S.E.2d at 781. Exercise of this function here discloses no evidence to support the findings from which the court could have concluded that respondent was dangerous to herself.

With reference to whether respondent was dangerous to others, the findings were not sufficient to support such a conclusion. The court found, in its oral ruling and its written order, that "respondent ha[d] made statements to her husband of a threatening nature." There was no finding, however, and ...


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