Matter of Crainshaw

283 S.E.2d 553 (1981)

In the Matter of Patricia A. CRAINSHAW.

No. 8119DC416.

Court of Appeals of North Carolina.

November 3, 1981.

*554 Atty. Gen., Rufus L. Edmisten by Associate Atty. Gen., Max A. Garner, Raleigh, for the State.

Sp. Counsel for the Mentally Ill, Howard C. McGlohon, Morganton, 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 herself 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 Monroe, 49 N.C.App. 23, 270 S.E.2d 537 (1980); In re Underwood, 38 N.C.App. 344, 247 S.E.2d 778 (1978).

The respondent contends that there is no competent evidence to support a finding or conclusion of dangerousness to self, 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 N.C.Gen.Stat. § 122-58.2(1) as follows:

a. "Dangerous to himself" shall mean that within the recent past: 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 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 Caver, 40 N.C.App. 264, 252 S.E.2d 284 (1979); In re Jacobs, 38 N.C.App. 573, 248 S.E.2d 448 (1978).

We must agree with respondent that neither the facts recorded by the trial court nor the record supports a conclusion or ultimate *555 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 judgment in this case discloses that the trial judge relied solely upon the testimony of the respondent's husband and daughter in its finding that the respondent was dangerous to herself. The court found that the respondent had forgotten to turn off the stove on many occasions, resulting in the burning of numerous pots and pans and a formica top; that she was forgetful; that she frequently talked to the wall; and that she appeared to be out of touch with her real surroundings. 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 her in the near future. The State presented no evidence showing the present or future effect of this behavior on the respondent. Forgetfulness and talking to the wall alone do not amount to danger as contemplated in the controlling statute.

We do not consider the respondent's remaining assignment of error.

For the reasons stated, the decision of the district court is

Reversed.

WELLS, J., concurs.

WEBB, J., dissents.

WEBB, Judge, dissenting:

I dissent from the majority. Dr. Knoelke testified that he had diagnosed the respondent as having a manic depressive illness, manic phase. Webster's Third New International Dictionary (1971) defines a manic depressive as exhibiting features similar to manic depressive psychosis which it defines as "a major mental disorder manifested either by mania or by psychotic depression or by alternating mania and depression." I can only conclude from this that the respondent was suffering from a serious mental disease.

The majority holds that neither the facts recorded nor the record supports a conclusion of dangerousness to self. I believe the facts recorded which are supported by the evidence as to the respondent's major mental disorder, her behavior in not turning off the stove which resulted in burning the utensils and formica top, her talking to the walls, her being extremely forgetful, and her appearance of being out of touch with her real surroundings support a conclusion that the respondent was not able "to exercise self-control, judgment and discretion in the conduct of [her] daily responsibilities and social relations." I also believe the facts recorded support a conclusion that the respondent's behavior was "grossly inappropriate to the situation." This creates a prima facie inference that the respondent was not able to care for herself which satisfies the requirement that there was a probability of serious physical debilitation to the respondent if she had not been treated.

I would hold that there was sufficient evidence from which the district court could find facts supporting a conclusion that the respondent was mentally ill and dangerous to herself and the district court should not be reversed for so finding.

I vote to affirm.