In re: E.W.P.

• Court: Court of Appeals of North Carolina
• Decided: April 20, 2021
• Docket: 20-181
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-136

No. COA20-181

Filed 20 April 2021

Avery County, No. 13 SPC 68

In re: E.W.P.

Appeal by respondent from order entered 26 June 2019 by Judge Alan Z.

Thornburg in Avery County Superior Court. Heard in the Court of Appeals 23

February 2021.

Robert T. Broughton, Special Deputy Attorney General, for Petitioner-Appellee

John F. Carella, Carella Legal Services, for Respondent-Appellant

CARPENTER, Judge.

I. Factual and Procedural Background

¶1 On 8 March 2004, Respondent was involuntarily committed to Broughton

Hospital after being found incapable of proceeding to trial in Avery County Superior

Court on charges including first degree murder, attempted murder, and assault with

a deadly weapon with intent to kill inflicting serious injury. Specifically,

-1- IN RE E.W.P.

Opinion of the Court

Respondent’s charges involved the murder of Avery County Sherriff’s Deputy Glenn

Hicks and the attempted murder of Deputy Ralph Coffey. In 2013, the trial court

found Respondent to be capable of proceeding to trial and to have a valid defense of

insanity. The trial court dismissed the charges and ordered Respondent to be

involuntarily committed at Central Regional Hospital pursuant to N.C. Gen. Stat. §§

15A-1321 and 122C-268.1. The trial court retained jurisdiction over Respondent as

a defendant found not guilty by reason of insanity, or an “NGRI defendant.”

¶2 Dr. Wolfe, a forensic psychiatrist at Central Regional Hospital, has been

Respondent’s primary treating psychiatrist for over five years. At Respondent’s 2017

recommitment hearing, Dr. Wolfe requested “(1) an increase from two hours to four

hours of daily campus ground passes; (2) an increase of the [patient-to-staff] ratio

from one-to-five to one-to-ten; and (3) quarterly, two-hour family supervised passes

within thirty miles of the hospital campus.” The trial court denied those requests.

Respondent appealed from the 27 June 2017 recommitment order, and this Court

found no error in an unpublished opinion issued on 6 November 2018. The North

Carolina Supreme Court denied a petition for discretionary review.

¶3 On 12 June 2019, Respondent’s case came on for a recommitment hearing in

Avery County Superior Court before the Honorable Alan Z. Thornburg. Dr. Wolfe

testified that what keeps Respondent in the hospital “is his murder, NGRI, and the

dangerousness to others because of that incident.” Dr. Wolfe testified that IN RE E.W.P.

Respondent’s lack of insight, which she believed to be permanent, “causes his

dangerousness.” Dr. Wolfe testified Respondent remains convinced that he was

protecting himself and acting in self-defense in 2003, and “that idea is always going

to be there.”

¶4 During the 2019 recommitment hearing, Respondent’s treatment team sought

an order granting increased privileges for Respondent. The increased privileges

sought included more ground pass hours and a move to a lesser degree of supervision,

specifically an increased patient-to-staff ratio, on public trips. Dr. Wolfe testified

that increased privileges would be necessary to allow Respondent to work toward the

goal of community reintegration.

¶5 However, Dr. Wolfe’s testimony tended to show the need for a greater patient-

to-staff ratio was in part based on the hospital’s “budgetary concern.” In her words,

hospital staff were “always under scrutiny to decrease . . . staff spending. . . .” When

asked on direct examination whether the purpose of the request for a greater patient-

to-staff ratio was “essentially to see how [Respondent] was going to behave,” Dr.

Wolfe’s response was: “I don’t think that it’s representative as much to see how he’s

going to behave as opposed to availability of staff in order to take patients out.” Dr.

Wolfe testified that the staff member who accompanies patients into the public places

is unarmed, and that “most of the patients” on these public trips “have killed

someone.” IN RE E.W.P.

¶6 In its 26 June 2019 order, the trial court found as fact that Respondent

continues to suffer from mental illness of delusional disorder and remains dangerous

to others based on his past actions. The trial court found that the requested increase

from two to four hours for grounds passes was merited. Regarding the two other

requests, the trial court found as follows:

b. As to the request for a decrease in the staff to patient supervision ratio . . . The Court finds that decreasing the level of supervision for off-hospital campus activities . . . could pose an increased risk to public safety. In light of this, this Court in its discretion determines that a decrease in Respondent’s staff to patient supervision ratio for off- campus activities is not merited and is not allowed. c. As to the request for two hour family-supervised off campus passes within 30 miles of Central Regional Hospital, this Court finds that . . . other alternatives exists whereby hospital staff could supervise such off-campus visits and facilitate visits by the Respondent’s family. In light of this evidence, this Court [in] its discretion determines that two hour family-supervised off campus passes within 30 miles of Central Regional Hospital are not merited, and are not allowed.

¶7 Respondent filed notice of appeal on 1 July 2019.

II. Jurisdiction

¶8 Jurisdiction lies in this court pursuant to N.C. Gen. Stat. § 122C-272 (2019)

over an appeal from a final judgment of a superior court. The issue of a court’s subject

matter jurisdiction may be raised at any time, even on appeal. State v. High, 230

N.C. App. 330, 334, 750 S.E.2d 9, 12 (2013). IN RE E.W.P.

III. Issues

¶9 Respondent contends (1) the trial court erred by ordering a one-to-five ratio of

staff supervision for Respondent because the trial court lacked jurisdiction to overrule

qualified medical professionals on the decision; in the alternative, Respondent

contends (2) the trial court abused its discretion by denying Respondent the ability to

obtain family-supervised off-campus visitation and outings supervised at a one-to-ten

ratio.

IV. Analysis

A. Trial Court Jurisdiction

¶ 10 Respondent argues the trial court erred by ordering a one-to-five ratio of staff

supervision because the court lacked jurisdiction to overrule qualified professionals

on this decision. Whether a court has jurisdiction is a question of law reviewed de

novo on appeal. McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010)

(citation omitted). N.C. Gen. Stat. § 122C-62 is instructive regarding the basis for a

trial court’s jurisdiction over an NGRI defendant such as Respondent. N.C. Gen. Stat.

§ 122C-62(b) states in relevant part:

(b) Except as provided in subsections (e) and (h) of this section, each adult client who is receiving treatment or habilitation in a 24-hour facility at all times keeps the right to: ... (4) Make visits outside the custody of the facility unless: a. Commitment proceedings were initiated as the result of IN RE E.W.P.

the client’s being charged with a violent crime, including a crime involving an assault with a deadly weapon, and the respondent was found not guilty by reason of insanity or incapable of proceeding; ... A court order may expressly authorize visits otherwise prohibited by the existence of the conditions prescribed by this subdivision[.] ... (e) No right enumerated in subsections (b) or (d) of this section may be limited or restricted except by the qualified professional responsible for the formulation of the client’s treatment or habilitation plan. . . .

N.C. Gen. Stat. § 122C-62(b) (2019).

¶ 11 The basis of Respondent’s jurisdictional argument rests on the contention that

he remained “in the custody” of the facility during his outings off the premises of the

facility. Therefore, Respondent contends, the trial court had no jurisdiction to

“overrule” the requests of his treatment team for lesser supervision on the outings.

This Court, however, has interpreted N.C. Gen. Stat. § 122C-62 to hold “visits outside

the custody of the facility include . . . visits off the premises.” In re Williamson, 151

N.C. App. 260, 266, 564 S.E.2d 915, 919 (2002). In Williamson, this Court held an

NGRI defendant “does not have a protected liberty interest in obtaining passes” for

visits outside the custody of the facility. Id. at 266, 564 S.E.2d at 919.

¶ 12 As an NGRI defendant, Respondent falls within the class of “adult clients”

subject to N.C. Gen. Stat. § 122C-62(b)(4). Section (b)(4) disallows NGRI clients

receiving treatment in a 24-hour facility “the right to . . . make visits outside the IN RE E.W.P.

custody of the facility” without a “court order” that “expressly authorize[s]” such a

visit. The trial court granted Respondent the right to make visits outside the custody

of the facility at a one-to-five ratio.

¶ 13 Pursuant to N.C. Gen. Stat. § 122C-62(e), if such a right is granted to an NGRI

defendant, only the qualified professional responsible for the formulation of the

client’s treatment or habilitation plan can limit or restrict it. N.C. Gen. Stat. § 122C-

62(e) (2019). If such a right is not granted to an NGRI defendant at all, N.C. Gen.

Stat. § 122C-62 does not grant the qualified professional the ability to grant it herself.

Similarly, no part of N.C. Gen. Stat. § 122C-62 gives the qualified professional the

ability to unilaterally expand the parameters of confinement and rights established

by the trial court within the statutory structure set forth in N.C. Gen. Stat. § 122C

as to an NGRI defendant. Only the trial court can grant the right to make visits

outside the custody of the facility pursuant to N.C. Gen. Stat. § 122C-62, hence,

Respondent’s argument that the trial court effectively “overruled” a qualified

professional on the decision to grant a right is without merit.

¶ 14 “There exists a need to monitor and keep the public safe from individuals (such

as respondent) that often times have committed violent, dangerous or other criminal

acts resulting in their involuntary commitment.” Williamson 151 N.C. App. at 268,

564 S.E.2d at 920. We find the government’s interest in keeping the public safe, in

conjunction with the plain language of N.C. Gen. Stat. § 122C-62, provides the trial IN RE E.W.P.

court jurisdiction to determine the parameters of the confinement of an NGRI

defendant within the statutory structure of N.C. Gen. Stat. § 122C, including the

ability to leave the facility to which they are validly committed.

B. Abuse of Discretion

¶ 15 Respondent argues in the alternative the trial court abused its discretion by

declining Respondent’s request for family-supervised off-campus visitation and

outings supervised at a one-to-ten ratio. Abuse of discretion is the appropriate

standard by which an appellate court reviews the determination of a trial court to

grant or deny out of custody privileges for an NGRI defendant. Id. at 260, 564 S.E.2d

at 919. “Under the abuse of discretion standard, our role is not to surmise whether

we would have disagreed with the trial court, but instead to decide whether the trial

court’s ruling was so arbitrary that it could not have been the result of a reasoned

decision.” State v. McGrady, 368 N.C. 880, 899, 787 S.E.2d 1, 15 (2016) (citation

omitted).

¶ 16 Substantial evidence exists in the record to support the trial court’s findings of

fact. Specifically, Dr. Wolfe’s testimony that Respondent’s permanent lack of insight

“causes his dangerousness” provided sufficient support for the trial court’s decision

to decline Respondent’s request for family-supervised off-campus visitation. Further

testimony from Dr. Wolfe that the staff member who accompanies patients into the

public places is unarmed, and that “most of the patients” on these public trips “have IN RE E.W.P.

killed someone,” provided sufficient support for the trial court’s decision to decline

Respondent’s request for outings supervised at a one-to-ten ratio. This Court

therefore finds the trial court did not abuse its discretion by declining Respondent’s

request for family-supervised off-campus visitation or outings supervised at a one-to-

ten ratio.

V. Conclusion

¶ 17 We find the trial court’s jurisdiction was proper based on the plain language of

N.C. Gen. Stat. § 122C-62. Further, we find the trial court did not abuse its

discretion, as substantial evidence existed in the record to support the trial court’s

findings of fact. For those reasons, we affirm the orders of the trial court.

AFFIRMED.

Judges ARROWOOD and GORE concur.