Matter of Perkins

299 S.E.2d 675 (1983)

In the Matter of Kelly A. PERKINS.

No. 8212DC740.

Court of Appeals of North Carolina.

February 1, 1983.

*676 Atty. Gen. Rufus L. Edmisten by Associate Atty. Walt M. Smith, Raleigh, for the State.

Staples Hughes, Asst. Public Defender, Fayetteville, for respondent-appellant.

WHICHARD, Judge.

Respondent contends that because the evidence was insufficient to support the finding that he "is imminently dangerous to himself or others," the court erred in denying his motions to dismiss. We disagree.

The involuntary commitment statute, G.S. §§ 122-58.1 to .27 (1981 & Supp.1981), required as a condition to a valid commitment order that the 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 himself or others. G.S. 122-58.7(i); In re Holt, 54 N.C.App. 352, 353, 283 S.E.2d 413, 414 (1981); In re Carter, 25 N.C.App. 442, 444, 213 S.E.2d 409, 410 (1975).

The court found that respondent was mentally ill. A psychiatrist at the VA Hospital in Fayetteville testified that he had first seen respondent eight days earlier, and had last seen him the day before the hearing. He further testified: "[Respondent] is suffering from chronic schizophrenia and has recently had an acute flareup. In my opinion, he is mentally ill."

The trier of fact could and did find that the foregoing constituted clear, cogent, and convincing evidence to support a finding that respondent was mentally ill. The finding is thus conclusive on appeal, and the first of the two statutory requirements is satisfied. See In re Underwood, 38 N.C. App. 344, 347-48, 247 S.E.2d 778, 780-81 (1978).

To satisfy the second requirement there must be (1) findings to support a conclusion that respondent was dangerous to himself or others, and (2) competent evidence to support such findings. Id.; Holt, supra.

The court found that respondent was dangerous to himself or others. The temporary fiduciary of respondent's funds testified that he had released to respondent funds he felt to be sufficient; that he had denied respondent's request for further funds; and that respondent thereupon had taken from his pocket what appeared to be a handgun, had placed it on the table, and had said, "Well, I guess I'll have to shoot *677 you then." He further testified that respondent then removed the gun from the table, pointed it at him, and fired twice.

The psychiatrist who had examined respondent testified: "In my opinion, [respondent] is dangerous to himself or others." He further testified:

[H]is thinking is ... so disorganized that he can't think in a logical coherent fashion, and hence I don't feel that he could make sound rational judgments about his behavior with respect to himself and ... other people at this time. .... I think the potential [to harm other people] is there.... I cannot say absolutely that [he] will, but I think the potential is there.... .... [I]n my experience any person who acts out in a potentially violent or aggressive way towards other people has the capacity to turn that violence upon himself....

The trier of fact could and did find that the foregoing constituted clear, cogent, and convincing evidence to support a finding that respondent was dangerous to himself or others. The second of the statutory requirements is thus satisfied, Underwood, supra, and denial of the motions to dismiss was not error.

Respondent also presents ingenious but untenable arguments to the effect that absence of counsel for petitioner violated certain constitutional rights of respondent. The gravamen of his contention is (1) that he was denied a fair hearing because, due to absence of counsel for petitioner, the court acted as petitioner's de facto counsel; and (2) that he was denied equal protection of the law because petitioners in hearings at state regional psychiatric facilities are represented by counsel, G.S. 122-58.7(b), -58.24, while petitioners in hearings held elsewhere are not. See In re Jackson, N.C. App., 299 S.E.2d 677 (1983) (filed simultaneously herewith), in which identical contentions were presented.

We are aware of no per se constitutional right to opposing counsel. Nothing in the record indicates language or conduct by the court which conceivably could be construed as advocacy in relation to petitioner or as adversative in relation to respondent. Respondent thus fails to show that he has been adversely affected by the involuntary commitment statutes as applied, and he therefore has no standing to challenge their constitutionality. See State v. Mems, 281 N.C. 658, 669, 190 S.E.2d 164, 172 (1972); 16 C.J.S., Constitutional Law § 76a (1956). See also French v. Blackburn, 428 F. Supp. 1351, 1354 (M.D.N.C. 1977), aff'd, 443 U.S. 901, 99 S. Ct. 3091, 61 L. Ed. 2d 869 (1979) ("[T]he North Carolina General Assembly has enacted an excellent legislative scheme which adequately protects the interests of all who may be involved in an involuntary commitment proceeding."). See generally Miller and Fiddleman, Involuntary Civil Commitment in North Carolina: The Result of the 1979 Statutory Changes, 60 N.C.L.Rev. 985, 996 (1982); Hiday, The Attorney's Role in Involuntary Civil Commitment, 60 N.C.L.Rev. 1027, 1029 (1982).

Affirmed.

ARNOLD and HILL, JJ., concur.