No. COA11-245TWENTY-EIGHTH JUDICIAL DISTRICT

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No. COA11-245TWENTY-EIGHTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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IN THE MATTER OF:)

)From Buncombe

KENNETH ELDIMOR ALLISON)

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RESPONDENT-APPELLANT’S BRIEF

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INDEX

TABLE OF CASES AND AUTHORITIES...... iii

ISSUES PRESENTED...... 1

STATEMENT OF THE CASE...... 2

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW...... 2

STATEMENT OF THE FACTS...... 3

STANDARD OF REVIEW...... 6

ARGUMENT...... 7

I.THE TRIAL COURT ERRED IN INVOLUNTARILY COMMITTING MR. ALLISON BECAUSE THE COMMITMENT ORDER WAS NOT SUPPORTED BY SUFFICIENT WRITTEN FINDINGS OF FACT 7

II.THE TRIAL COURT ERRED IN INVOLUNTARILY COMMITTING MR. ALLISON BECAUSE THE COMMITMENT ORDER WAS NOT SUPPORTED BY CLEAR, COGENT AND CONVINCING EVIDENCE THAT HE WAS A DANGER TO HIMSELF OR A DANGER TO OTHERS 12

CONCLUSION...... 28

CERTIFICATE OF COMPLIANCE WITH N.C. R. APP. P. 28(j)(2)...... 29

CERTIFICATE OF FILING AND SERVICE...... 29

TABLE OF CASES AND AUTHORITIES

CASES

Booker v. Everhart,

33 N.C. App. 1, 234 S.E.2d 46 (1977)...... 6

Humphries v. Jacksonville,

300 N.C. 186, 265 S.E.2d 189 (1980)...... 6

In re Bartley,

40 N.C. App. 218, 252 S.E.2d 553 (1979)...... 11

In re Booker,

193 N.C. App. 433, 667 S.E.2d 302 (2008)...... 8, 11

In re Crainshaw,

54 N.C. App. 429, 283 S.E.2d 553 (1981)...... 16, 17, 19

In re Eades,

143 N.C. App. 712, 547 S.E.2d 146 (2001)...... 8

In re Frick,

49 N.C. App. 273, 271 S.E.2d 84 (1980)...... 25

In re Hatley,

291 N.C. 693, 231 S.E.2d 633 (1977)...... 14, 15

In re Helms,

127 N.C. App. 505, 491 S.E.2d 672 (1997)...... 9, 10

In re Hogan,

32 N.C. App. 429, 232 S.E.2d 492 (1977)...... 15, 16

In re Jacobs,

38 N.C. App. 573, 248 S.E.2d 448 (1978)...... 11

In re Koyi,

34 N.C. App. 320, 238 S.E.2d 153 (1977)...... 8

In re Lee,

35 N.C. App. 655, 242 S.E.2d 211 (1978)...... 23, 24

In re Lowery,

110 N.C. App. 67, 428 S.E.2d 861 (1993)...... 24

In re Medlin,

59 N.C. App. 33, 295 S.E.2d 604 (1982)...... 23

In re Nowell,

293 N.C. 235, 237 S.E.2d 246 (1977)...... 23

In re Reed,

39 N.C. App. 227, 249 S.E.2d 864 (1978)...... 10, 11, 22, 26

In re Smith,

146 N.C. App. 302, 552 S.E.2d 184 (2001)...... 23

In re Wilson,

257 N.C. 593, 126 S.E. 2d 489 (1962)...... 10, 11

In re Zollicoffer,

165 N.C. App. 462, 598 S.E.2d 696 (2004)...... 25, 26

N.C. Dep’t of Environment and Natural Resources v. Carroll,

358 N.C. 649, 559 S.E.2d 888 (2004)...... 7

Prevatte v. Cabble,

24 N.C. App. 524, 211 S.E.2d 528 (1975)...... 6

Starco, Inc. v. AMG Bonding and Insurance Services.,

124 N.C. App. 332, 477 S.E.2d 211 (1996)...... 6

State v. Hart,

179 N.C. App. 30, 633 S.E.2d 102 (2006), rev’d in part on other grounds, 361 N.C. 309, 644 S.E.2d 201 (2007) 6, 7

State v. Joyner,

301 N.C. 18, 269 S.E.2d 125 (1980)...... 22, 23

STATUTES

N.C. Gen. Stat. § 122C-3(11)(a) (2010)...... 9, 13, 14, 18, 20

N.C. Gen. Stat. § 122C-3(11)(b) (2010)...... 9, 13, 14, 20

N.C. Gen. Stat. § 122C-3(21) (2010)...... 9

N.C. Gen. Stat. § 122C-261(b) (2010)...... 22

N.C. Gen. Stat.§ 122C-268(j) (2010)...... passim

N.C. Gen. Stat. § 122C-272 (2010)...... 2

CONSTITUTIONALPROVISIONS

N.C. Const. art. I, § 19...... 7, 10, 11, 12, 26

U.S. Const. amend. XIV...... 7, 10, 11, 12, 26

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No. COA11-245TWENTY-EIGHTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

******************************************************

IN THE MATTER OF:)

)From Buncombe

KENNETH ELDIMOR ALLISON)

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RESPONDENT-APPELLANT’S BRIEF

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ISSUES PRESENTED

1. WHETHER THE TRIAL COURT ERRED IN INVOLUNTARILY COMMITTING MR. ALLISON BECAUSE THE COMMITMENT ORDER WAS NOT SUPPORTED BY SUFFICIENT WRITTEN FINDINGS OF FACT?

1. WHETHER THE TRIAL COURT ERRED IN INVOLUNTARILY COMMITING MR. ALLISON BECAUSE THE COMMITMENT ORDER WAS NOT SUPPORTED BY CLEAR, COGENT AND CONVINCING EVIDENCE THAT HE WAS A DANGER TO HIMSELF OR A DANGER TO OTHERS?

STATEMENT OF THE CASE

On August 31, 2010,Officer Adam T. Roach of the Asheville Police Department filed an Affidavit and Petition for Involuntary Commitment in Buncombe County District Court requesting that Mr. Allison be involuntarily committed. (Rpp. 2-4) That same day, a magistrate found that Mr. Allison was mentally ill, dangerous to himself and to others, and in need of further treatment. (Rpp. 5-8) On September 1, 2010, Mr. Allison was examined by Dr. Stacia Moore at MissionHospital, who recommended commitment. (Rpp. 9-10) On September 2, 2010, Mr. Allison was examined by Dr. Micah Krenpasky at MissionHospital, who recommended commitment. (Rpp. 11-12)

The petition came on for hearing at the September 6, 2010 Session of Buncombe County District Court, before the Honorable Marvin P. Pope, Jr. (Tp. 3) On September 9, 2010, Judge Pope entered an order committing Mr. Allison to involuntary inpatient commitment for a period not to exceed 10 days. (Rpp. 16-17) On September 21, 2010, Mr. Allison filed written notice of appeal of the September 9, 2010 Involuntary Commitment Order. (Rpp. 18-20)

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

Mr. Allison appeals pursuant to N.C. Gen. Stat. § 122C-272, from a final judgment of Buncombe County District Court entered by Judge Marvin P. Pope, Jr. on September 9, 2010.

STATEMENT OF THE FACTS

At the September 9, 2010 hearing to determine whether Mr. Allison should be involuntarily committed, no one appeared on behalf of the State-petitioner. Dr. Krenpasky, upon questioning by the trial court, first testified that Mr. Allison was admitted to the hospital after having a police standoff in downtown Asheville with the Asheville Police Department. (Tp. 3) In the original Affidavit and Petition for Involuntary Commitment, Officer Roach alleged that during the police standoff, Mr. Allison barricaded himself in his car and asked the police to shoot him. (Rp. 2) Office Roach further alleged that before being stopped, Mr. Allison ran through stop signs and red lights in downtown Asheville, “endangering the public.” (Rp. 2) Officer Roach also attached to the Petition a news article about a previous police standoff involving Mr. Allison in Hilton Head, South Carolina. (Rp. 4) Officer Roach did not testify at the hearing. Dr. Krenpasky also referenced this additional police standoff, but no other details were given. (Tp. 3)

While at the hospital, Mr. Allison displayed symptoms of mania, which Dr. Krenpasky believed to be consistent with bipolar disorder. (Tp. 3) Dr Krenpasky testified that Mr. Allison was “hyper-verbal” and “unable to maintain appropriate social boundaries.” (Tp. 4) Mr. Allison was taking his medication but had limited insight as to how the medicine was helping. (Tp. 4) According to Dr. Krenpasky, Mr. Allison was “unable to maintain the boundaries of the unit” because he took a pair of scissors from the arts and crafts room, and hid them in his room. (Tp. 4) Dr. Krenpasky stated that Mr. Allison also took ink pens, which were considered “contraband,” and hid them in his boot. (Tp. 4) On the day before the hearing, Dr. Krenpasky placed Mr. Allison with a “sitter” for “his safety” but she did not elaborate as to the reasons why. (Tp. 4)

Based on this behavior, Dr. Krenpasky believed that Mr. Allison was a danger to himself and to others. (Tp. 4) Because Mr. Allison was responding slowly to the medication, she recommended that he continue with inpatient treatment for another ten days. (Tp. 4)

On cross-examination, Dr. Krenpasky testified that Mr. Allison’s“determination to get things that [were] considered unsafe [in] the unit in his room” made “[Mr. Allison] unsafe to himself and unsafe to others.” (Tp. 5) According to Dr. Krenpasky, because Mr. Allison did not admit to having the items in his room, the staff had to conduct a room search. (Tp. 5) Dr. Krenpasky testified that Mr. Allison did not threaten anyone. (Tp. 5) Instead, he had “possess[ed] the contraband in a manner that [was] [not] forthright.” (Tp. 5)

Mr. Allison testified that he had met with Dr. Krenpasky three or four times, and that she had diagnosed him as manic depressive. (Tp. 6) Mr. Allison explained that the scissors he took were not sharp, but rather, they were used in the arts and crafts room of MissionHospital. (Tp. 6) He did not threaten anyone with the scissors, but rather, he used them to cut his fingernails. (Tp. 7) He also returned them back to the person in charge of the arts and crafts room after he was done. (Tp. 7)

Finally, Mr. Allison did not believe that he needed to be in inpatient therapy. (Tp. 7) Dr. Krenpasky had prescribed medication, which Mr. Allison was taking. (Tp. 6) He was also willing to attend outpatient therapy. (Tp. 7) Judge Pope asked Mr. Allison why he did not get out of his car during the police standoff. (Tp. 8) Mr. Allison explained that the police were not following standard operating procedure, and that he was scared of getting shot. (Tp. 8)

At the conclusion of the hearing, Mr. Matthew Holloway, Mr. Allison’s attorney, argued that Mr. Allison should not be committed because Mr. Allison was not a danger to himself or others. (Tp. 8) He argued that while Dr. Krenpasky testified that Mr. Allison took scissors, there was no indication that Mr. Allison used the scissors to try to harm himself or others. (Tp. 8) Furthermore, Mr. Holloway stated that Mr. Allison was able to support and care for himself and there was no indication that Mr. Allison’s behavior or mental illness was leading to any severe debilitation. (Tpp. 8-9) Judge Pope then followed the recommendation of Dr. Krenpasky and ordered that Mr. Allison remain in inpatient commitment for another ten days. (Tp. 9)

On the written Involuntary Commitment Order, Judge Pope found by clear, cogent and convincing evidence the following: “Court finds that the Respondent meets criteria for further inpatient commitment.” (Rpp. 16-17) Judge Pope concluded that Mr. Allison was mentally ill and dangerous to himself and to others. (Rpp. 16-17) Judge Pope ordered that Mr. Allison be committed to the inpatient treatment facility for a period not to exceed 10 days. (Rpp. 16-17)

STANDARD OF REVIEW

Mr. Allison asserts that the district court failed to make sufficient findings of fact to conclude that he satisfied the criteria for involuntary commitment. He also asserts that the evidence was insufficient to support the district court’s commitment order. Whether a trial court’s conclusions of law are supported by the findings of fact is a question of law that is reviewed de novo on appeal. See Humphries v. Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980) (“Conclusions of law drawn by the trial court from the findings of fact are reviewable de novo on appeal.”); Starco, Inc. v. AMG Bonding and Insurance Services., 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996) (holding that a trial court’s “conclusions of law are reviewable de novo on appeal.”) Moreover, “[s]ufficiency of the evidence is a question of law to be determined by the court,” and is, therefore, reviewed de novo on appeal. Booker v. Everhart, 33 N.C. App. 1, 15, 234 S.E.2d 46, 56 (1977)(citing Prevatte v. Cabble, 24 N.C. App. 524, 211 S.E.2d 528 (1975)). See also State v. Hart, 179 N.C. App. 30, 633 S.E.2d 102 (2006), rev’d in part on other grounds, 361 N.C. 309, 644 S.E.2d 201 (2007). “Under the de novo standard, the reviewing court ‘considers the matter anew and freely substitutes its own judgment for that of the [lower court].’” N.C. Dep’t of Environment & Natural Resources v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004).

ARGUMENT

I.THE TRIAL COURT ERRED IN INVOLUNTARILY COMMITTING MR. ALLISON BECAUSE THE COMMITMENT ORDER WAS NOT SUPPORTED BY SUFFICIENT WRITTEN FINDINGS OF FACT.

Mr. Allison was involuntarily committed to an inpatient facility for a period not to exceed ten days. (Rpp. 16-17) In support of that order of commitment, the trial court concluded that Mr. Allison was mentally ill, dangerous to himself and dangerous to others. (Rpp. 16-17) It did not, however, support those conclusions with sufficient written findings of fact. Because the trial court is required by N.C. Gen. Stat. § 122C-268(j) to record the facts that support its findings, the trial court’s failure to do so was error. Moreover, the trial court’s failure to make sufficient findings to support the commitment order violated Mr. Allison’s due process rights under the Fourteenth Amendment to the United States Constitution and Article I, § 19 of the Constitution of North Carolina. The commitment order must be vacated.

Section 122C-268(j) provides that “[t]o support an inpatient commitment order, the court shall find by clear, cogent, and convincing evidence that the respondent is mentally ill and dangerous to himself . . . or dangerous to others[.]” (emphasis added) Section 122C-268(j) further mandates that the trial “court shallrecord the facts that support its findings.” (emphasis added) “A trial court’s duty to record the facts that support its findings is ‘mandatory.’” In re Booker, 193 N.C. App. 433, 436, 667 S.E.2d 302, 303 (2008) (quoting In re Koyi, 34 N.C. App. 320, 321, 238 S.E.2d 153, 154 (1977)). Failure to record the facts has been found by this Court to be reversible error. Id. See also In re Eades, 143 N.C. App. 712, 713, 547 S.E.2d 146, 147 (2001) (“This Court has held that use of the language ‘shall’ is a mandate to trial judges, and the failure to comply with the statutory mandate is reversible error.”)

In this case, the trial court failed to make any written findings of fact to support its conclusions of law that Mr. Allison was mentally ill, dangerous to himself and dangerous to others. First, the trial court did not incorporate by reference a physician’s report containing a diagnosis or other relevant facts pertaining to mental illness or dangerousness. Therefore, none of the findings contained in Dr. Moore’s report or Dr. Krenpasky’s report were findings for purposes of the trial court’s order.

Second, under the section designated for “other facts,” the trial court made no written findings of fact of its own to support its conclusions of law. Therefore, there were nofindings of fact that Mr. Allison was mentally ill, dangerous to himself and dangerous to others. There were no findings that established that Mr. Allison had an illness which lessened his capacity “to use self-control, judgment, and discretion in the conduct of his affairs and social relations as to make it necessary . . . for him to be under treatment, care supervision, guidance, or control.” N.C. Gen. Stat. § 122C-3(21) (2010). There were no written findings that established that Mr. Allison was unable to take care of himself, that he had attempted or threatened suicide, or that he had attempted or actually mutilated himself. N.C. Gen. Stat. § 122C-3(11)(a) (2010). There were no written findings that established that Mr. Allison had “inflicted or attempted to inflict or threatened to inflict serious bodily harm to another,” “acted in such a way as to create a substantial risk of serious bodily harm to another,” or “engaged in extreme destruction of property.” N.C. Gen. Stat. § 122C-3(11)(b) (2010).

Instead, the trial court merely checked a pre-printed box and found “by clear, cogent and convincing evidence” that “the Respondent meets criteria for further inpatient commitment.” (Rp. 16) This “finding” was not actually a finding of fact, but instead, was a conclusion of law. “As a general rule . . . any determination requiring the exercise of judgment or the application of legal principles is more properly classified a conclusion of law.” In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997) (internal citations omitted). By contrast, a determination reached by logical reasoning from the evidentiary facts is deemed a finding of fact. Id. Here, the “finding” stated that “the Respondent meets criteria for further inpatient commitment.” (Rp. 16) Discerning whether the “criteria” for inpatient commitment had been satisfied meant that the trial court had to determine if the statutory requirements for mental illness, dangerousness to self and dangerousness to others had been satisfied. Therefore, the court clearly had to exercise judgment and apply legal principles. Because the trial court’s order involuntarily committing Mr. Allison did not contain any written findings of fact to meet any of the criteria for mental illness and dangerousness, it violated the mandates of § 122C-268(j) and must be vacated.

In addition to violating Mr. Allison’s rights under the civil commitment statutes, the trial court’s commitment order also violated Mr. Allison’s due process rights. The Fourteenth Amendment to the United States Constitution provides that no State shall deprive a person of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. Similarly, Article I, § 19 of the Constitution of North Carolina provides that “no person shall be . . . in any manner deprived of his life, liberty, or property, but by the law of the land.” N.C. Const. art. I, § 19. “A commitment order is essentially a judgment by which a person is deprived of his liberty.” In re Reed, 39 N.C. App. 227, 229, 249 S.E.2d 864, 866 (1978) (citing In re Wilson, 257 N.C. 593, 126 S.E.2d 489 (1962)). Moreover, this Court has recognized that “there is a real potential for deprivation of due process in commitment proceedings.” Id.

While the government certainly bears a duty to protect the mentally ill from themselves, and to protect the public from the dangerously mentally ill, it can do so only upon a clear showing of cogent and convincing evidence that the respondent is both mentally ill and dangerous to himself or others. Because the trial court’s commitment order did not contain any findings of fact to support the conclusion that Mr. Allison was mentally ill and dangerous, it violated Mr. Allison’s rights under the Fourteenth Amendment to the United States Constitution and Article I, § 19 of the Constitution of North Carolina. The order must, therefore be vacated.

When a commitment order fails to containsufficient written findings of fact, the order must be reversed regardless of whether the evidence itself was sufficient. Booker, 193 N.C. App. at 437, 667 S.E.2d at 303-04 (declining to review the sufficiency of the evidence because the district court’s failure to record sufficient findings of fact warranted reversal of the commitment order); In re Bartley, 40 N.C. App. 218, 220, 252 S.E.2d 553, 554 (1979) (holding that a commitment order “must be reversed” when the district court fails to make sufficient findings of fact); In re Jacobs, 38 N.C. App. 573, 575, 248 S.E.2d 448, 449 (1978) (holding that the district court’s failure to make findings of fact was “sufficient error to require reversal”). Here, the district court failed to satisfy its fact-finding duty under §122C-268(j). Accordingly, the trial court’s order involuntarily committing Mr. Allison was error and must be vacated.

II.THE TRIAL COURT ERRED IN INVOLUNTARILY COMMITTING MR. ALLISON BECAUSE THE COMMITMENT ORDER WAS NOT SUPPORTED BY CLEAR, COGENT AND CONVINCING EVIDENCE THAT HE WAS A DANGER TO HIMSELF OR A DANGER TO OTHERS.

Mr. Allison was involuntarily committed to an inpatient facility for a period not to exceed ten days. (Rpp. 16-17) In support of that order of commitment, the trial court concluded that Mr. Allison was dangerous to himself and dangerous to others. There was not, however, clear, cogent, and convincing evidence sufficient to establish that Mr. Allison was dangerous to himself or dangerous to others. Without sufficient evidence of dangerousness, Mr. Allison could not be involuntarily committed under N.C. Gen. Stat. § 122C-268(j). Moreover, by entering the commitment order without sufficient evidence of dangerousness, the trial court violated Mr. Allison’s due process rights under the Fourteenth Amendment to the United States Constitution and Article I, § 19 of the Constitution of North Carolina. The trial court, therefore, erred in committing Mr. Allison and the order of commitment must be vacated.

Section 122C-268(j) states that “[t]o support an inpatient commitment order, the court shall find by clear, cogent, and convincing evidence that the respondent is mentally ill and dangerous to himself . . . or dangerous to others[.]” (emphasis added) The terms “danger to himself” and “danger to others” are defined in N.C. Gen. Stat. §§ 122C-3(11)(a) and 122C-3(11)(b).

Dangerousness to self can be established in three different ways. First, an individual is dangerous to himself if “within the relevant past” he has:

acted in such a way as to show: a)that he would be unable, without care, supervision, and the continued assistance of others not otherwise 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 b) that there is a reasonable probability of his suffering serious physical debilitation within the near future unless adequate treatment is given[.]

N.C. Gen. Stat. §122C-3(11)(a) (2010) (emphasis added). The statute further explains:

[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.