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In re E.D.

Supreme Court of North Carolina

May 10, 2019

IN THE MATTER OF: E.D.

          Heard in the Supreme Court on 6 March 2019.

          On discretionary review pursuant to N.C. G.S. § 7A-31 of a unanimous decision of the Court of Appeals, __ N.C.App. __, 813 S.E.2d 630 (2018), vacating an order entered on 5 January 2017 by Judge Dan Nagle in District Court, Wake County.

          Joshua H. Stein, Attorney General, by Robert T. Broughton, Assistant Attorney General, for the State, petitioner-appellant.

          Glenn Gerding, Appellate Defender, by Wyatt Orsbon, Assistant Appellate Defender, for respondent-appellee.

          HUDSON, JUSTICE.

         This case is before us pursuant to the State's petition for discretionary review[1]of the Court of Appeals' decision which held that "in cases where a respondent [who is involuntarily committed to a State health facility] does not receive an examination by a second physician as mandated by N.C. Gen. Stat. § 122C-266(a), the respondent is not required to make a showing of prejudice resulting from the statutory violation in order to have the trial court's order authorizing her continued commitment vacated." In re E.D., __ N.C.App. __, __, 813 S.E.2d 630, 634 (2018). We now review: (1) whether "the Court of Appeals erred in concluding that N.C. Gen. Stat. § 122C-266(a) was the type of statutory mandate for which the right to appellate review is automatically preserved regardless of a failure to object in the trial court"; and (2) whether "the Court of Appeals erred in concluding that appellate relief is automatically merited upon the showing of a violation of N.C. Gen. Stat. § 122C-266(a)." Because the Court of Appeals erred in concluding that N.C. G.S. § 122C-266(a) imposes a statutory mandate that automatically preserves violation of that subsection for appellate review-and because respondent did not otherwise preserve her argument alleging the violation by objecting on that basis at the hearing on her involuntary commitment-we reverse the Court of Appeals' decision without deciding whether prejudice must be shown to obtain relief on appeal.

         I. Factual and Procedural Background

         The facts of this case begin on 26 December 2016 when respondent's sister filed an affidavit and petition for involuntary commitment in the District Court in Wake County requesting that respondent be taken into custody.

         In the affidavit respondent's sister swore that respondent was mentally ill, was a danger to herself or others, was in need of treatment for her mental illness in order to prevent further disability and deterioration that would predictably result in dangerousness, and was a substance abuser who was dangerous to herself or others. In support of these assertions, respondent's sister swore to the following facts: (1) respondent was suicidal; (2) respondent attempted to jump out of a moving vehicle on Christmas Eve; (3) respondent threatened to kill her sister, her niece, and her mother when respondent's sister turned out a light in her own home and moved eggs in the refrigerator; (4) respondent has thrown knives, computers, and chairs at her sister; (5) respondent has been diagnosed with bipolar I disorder with manic, psychotic features; (6) respondent has abused prescription drugs and attempted to break down a bathroom door when she was intoxicated after drinking liquor; and (7) respondent threatened to "beat the skin off" her mother's face.

         At 7:01 p.m. on the same day that respondent's sister filed the affidavit and petition, a magistrate found that respondent was mentally ill, was a danger to herself or others, was in need of treatment in order to prevent further disability and deterioration that would predictably result in dangerousness, and was a substance abuser who was dangerous to herself or others. Based on these findings, the magistrate ordered that law enforcement take the respondent into custody for examination by a physician or eligible psychologist within twenty-four hours of issuance of the order.[2] Respondent was taken into custody by Raleigh police at 8:00 p.m., and she was transported to UNC Hospital in Chapel Hill, North Carolina, at 8:30 p.m.[3]

         On 27 December at 1:30 p.m., respondent received her first examination by a physician as required by law.[4] The examining physician opined that respondent was mentally ill, was a danger to herself, and was a danger to others. As a result of these findings, the physician recommended that respondent should be subject to inpatient commitment for fifteen days.[5]

         On the same day as her first examination at UNC Hospital, respondent was transported to UNC Wakebrook Psychiatric Services (UNC Wakebrook) in Raleigh to begin her inpatient commitment. After her arrival at UNC Wakebrook, respondent received her second examination as required by law at 4:45 p.m.;[6] however, during this examination, respondent was seen by a psychologist. She was not examined by a physician as required by law. N.C. G.S. § 122C-266(a) (2017) ("[W]ithin 24 hours of arrival at a 24-hour facility described in G.S. 122C-252, the respondent shall be examined by a physician." (emphasis added)); see also id. § 122C-3(29), (30a) (Supp. 2018) (defining "physician" and "psychologist" separately, and stating that a "physician" is "an individual licensed to practice medicine in North Carolina under Chapter 90 of the General Statutes or a licensed medical doctor employed by the Veterans Administration").

         Based on her evaluation of respondent, the psychologist opined that respondent was mentally ill, a danger to herself, and a danger to others. Accordingly, the psychologist recommended that respondent be subject to inpatient commitment for five to ten days.[7] Respondent remained in custody at UNC Wakebrook until the hearing on her involuntary commitment in the District Court in Wake County on 5 January 2017.

         Immediately following the hearing, the district court ordered that respondent be involuntarily committed at UNC Wakebrook for a period not to exceed thirty days.[8] In its order the court found that respondent was mentally ill; and was a danger to herself and others. At no point during the hearing did respondent raise the issue that her second examination was not conducted by a physician as required by N.C. G.S. § 122C-266(a). Respondent filed her notice of appeal on 27 January 2017.

         The Court of Appeals vacated respondent's involuntary commitment order. In re E.D., __ N.C.App. at __, 813 S.E.2d at 634. In so doing, the court reached two conclusions that are pertinent here. First, relying on its own decision in In re Spencer, the Court of Appeals held that respondent's argument-that N.C. G.S. § 122C-266(a) was violated when her second examination was conducted by a psychologist in lieu of a physician-was preserved for appellate review even though respondent did not raise the issue in the district court hearing on her involuntary commitment. Id. at __, 813 S.E.2d at 632 (citing In re Spencer, 236 N.C.App. 80, 84-85, 762 S.E.2d 637, 640 (2014), disc. rev. denied, 367 N.C. 811, 767 S.E.2d 529 (2015). Specifically, the Court of Appeals reasoned that its previous decision in In re Spencer required it to conclude that N.C. G.S. § 122C-266(a) places a "statutory mandate" upon the trial court that renders any violation of that subsection automatically preserved for appellate review. Id. at __, 813 S.E.2d at 632.

         Second, the Court of Appeals relied on its own decision in In re Barnhill, to hold that the violation of N.C. G.S. § 122C-266(a) entitled respondent to relief without her needing to show that she was prejudiced by the violation. Id. at __, 813 S.E.2d at 633 (citing In re Barnhill, 72 N.C.App. 530, 532, 325 S.E.2d 308, 309 (1985)). In its analysis the Court of Appeals distinguished the facts here and those of In re Barnhill, from the facts of In re Spencer, in which a respondent was required to demonstrate prejudice. Id. at __, 813 S.E.2d at 633-34 (citations omitted). The court reasoned that In re Spencer is distinct from the situation presented here because in In re Spencer, the respondent conceded that he was actually examined by a physician, id. at __, 813 S.E.2d at 633 ("Here, respondent concedes that Dr. Saeed's testimony illustrates that he conducted an examination of respondent on 23 July 2013, the day after he was admitted to Holly Hill Hospital." (quoting In re Spencer, 236 N.C.App. at 85, 762 S.E.2d at 640)); however, "no written records existed documenting the fact that a second physician had examined the respondent," id. at __, 813 S.E.2d at 633 (citing In re Spencer, 236 N.C.App. at 84, 762 S.E.2d at 640). The Court of Appeals limited In re Spencer to its facts by reasoning that "Spencer cannot be read ...


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