Matter of Monroe

270 S.E.2d 537 (1980)

In the Matter of Howard Lewis MONROE a/k/a Muhammed Abdul.

No. 8012DC236.

Court of Appeals of North Carolina.

October 7, 1980.

*539 Atty. Gen. Rufus L. Edmisten by Associate Atty. Steven F. Bryant, Raleigh, for the State.

Dorothy E. Thompson, Raleigh, for respondent.

ROBERT M. MARTIN, Judge.

N.C.Gen.Stat. § 122-58.7(i) requires as a condition to a valid commitment order that the district court find two distinct facts by clear, cogent, and convincing evidence: first, that the respondent is mentally ill or inebriate and second, that the respondent is dangerous to himself or others. Prior to 1 October 1979 the statute required a finding that respondent is imminently dangerous to himself or others.

It is for the trier of fact to determine whether evidence offered in a particular case is clear, cogent, and convincing. Our function on appeal is simply to determine whether there was any competent evidence to support the factual findings made. In re Underwood, 38 N.C.App. 344, 247 S.E.2d 778 (1978).

Respondent concedes in his brief that there is sufficient evidence to support the court's finding on the issue of mental illness. He contends, however, that there is no competent evidence to support a finding *540 or conclusion of dangerousness to self or to others, either in the facts recorded in the court's order or in the record.

The phrase "dangerous to himself" when used in Article 5A is defined in G.S. 122-58.2(1) as follows:

a. "Dangerous to himself" shall mean that within the recent past: 1. The person has acted in such a manner as to evidence: I. 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 II. That there is a reasonable probability of serious physical debilitation to him within the near future unless adequate treatment is afforded pursuant to this Article. A showing of behavior that is grossly irrational or of actions which the person is unable to control or of behavior that is grossly inappropriate to the situation or other evidence of severely impaired insight and judgment shall create a prima facie inference and that the person is unable to care for himself; . . . .

The statutory language establishes a two prong test for dangerousness to self. The first prong addresses self-care ability regarding one's daily affairs. The second prong, which also must be satisfied for involuntary commitment to result, mandates a specific finding of a probability of serious physical debilitation resulting from the more general finding of lack of self-caring ability. We have held that pursuant to G.S. 122-58.7(i) the facts supporting danger must be recorded by the trial court. In re Jacobs, 38 N.C.App. 573, 248 S.E.2d 448 (1978); In re Neatherly, 28 N.C.App. 659, 222 S.E.2d 486 (1976); In re Crouch, 28 N.C.App. 354, 221 S.E.2d 74 (1976).

We must agree with respondent that neither the facts recorded by the trial court nor the record supports a conclusion or ultimate finding of dangerousness to self. Alternatively, even if indicative of some danger, the facts do not support the finding that "[t]here is a reasonable probability of serious physical debilitation to the Respondent within the near future . . . ."

The court found that respondent is irregular in his sleeping habits and is up from three to six times per night; that he disregards his nutritional needs by fasting for some periods and then eating a whole chicken or a whole loaf of bread; that respondent eats about five pounds of sugar every two days, sometimes consuming five or six glasses of "sweet water" in a day. These facts may be evidence of mental illness, or, under the broad language of § 122-58.2(1) a. 1. I., danger characterized by inability to "exercise self-control, judgment, and discretion in the conduct of his daily responsibilities . . . ." However, these facts do not meet the second prong of the test, a reasonable probability of serious physical debilitation to him within the near future. The State presented no evidence showing the present or future effect of these irregular dietary habits on respondent. No testimony was presented as to how long or consistently respondent had been eating in this manner. Unusual eating habits alone do not amount to danger as contemplated in the controlling statute.

Respondent's conduct as described by Patrick Monroe relative to speaking to persons passing by his home evinces no danger to himself. The chance that someone will harm respondent in response to this action cannot be found to be evidence of danger to self in accord with In re Hogan, 32 N.C.App. 429, 232 S.E.2d 492 (1977).

This Court has addressed the issue of danger to self on numerous occasions. In In re Benton, 26 N.C.App. 294, 215 S.E.2d 792 (1975), where the trial court had found the respondent to be "dangerous to herself only in that her illness negates her ability to meet her personal needs," we reversed the order of commitment because inability to meet personal needs is not a finding that respondent is imminently dangerous to herself.

*541 When Benton was decided the statute required a finding that respondent was imminently dangerous. In the present case there is no clear, cogent, and convincing evidence of danger to self regardless of whether one is evaluating "imminence" or "nearness."

Having determined that the evidence is insufficient to support a finding of danger to self, we now consider whether the evidence will support a finding that respondent is dangerous to others.

Prior to 1979, the phrase "dangerous to others" was not defined by statute. G.S. 122-58.2(1) b. now defines "dangerous to others" as follows:

"Dangerous to others" shall mean that within the recent past, the person has inflicted or attempted to inflict or threatened to inflict serious bodily harm on another or has acted in such a manner as to create a substantial risk of serious bodily harm to another and that there is a reasonable probability that such conduct will be repeated.

Thus, the trial court must find three elements present in order to find that respondent is dangerous to others:

(1) Within the recent past (2) Respondent has (a) inflicted serious bodily harm on another, or (b) attempted to inflict serious bodily harm on another, or (c) threatened to inflict serious bodily harm on another, or (d) has acted in such a manner as to create a substantial risk of serious bodily harm to another, and (3) There is a reasonable probability that such conduct will be repeated.

This Court has not required "overt acts" under the former standard of "imminent" danger and the present statutory definition of "dangerous to others" does not require a finding of "overt acts." In re Ballard, 34 N.C.App. 228, 237 S.E.2d 541 (1977); In re Salem, 31 N.C.App. 57, 228 S.E.2d 649 (1976).

Respondent argues that the threats by respondent to his mother do not amount to threats of "serious bodily harm" as required by the statute. We need not decide, however, whether respondent's words, "I'm gonna get you all yet" are sufficient alone to support the finding of dangerous to others. We must consider respondent's statements in conjunction with all of the other evidence and determine whether the trial court's finding was supported by any competent evidence. In re Underwood, supra.

The trial court found as facts that respondent had become uncontrollable at all times and that he frequently had made threats to his aged and nervous mother. This finding was supported by Mr. Patrick Monroe's testimony that he had heard respondent state to his mother "I'm gonna get you all yet" and that the number of threats made by respondent had increased over the last three to four weeks. The court found as fact, based on Dr. Kalina's testimony, that respondent was suspicious of his family, that respondent believed that his family had sexually seduced him, and that respondent believed that all of his relatives were against him. The court also found as fact, based on Patrick Monroe's testimony, that respondent was "ready to fight" if someone pointed out that he had done something out of order.

These findings, supported by the evidence, support the trial court's conclusion that respondent was dangerous to others by acting "in such a manner as to create a substantial risk of serious bodily harm to another." Therefore, we conclude the judge did not err in signing the order of involuntary commitment.

Affirmed.

VAUGHN and WEBB, JJ., concur.