In re R.S.H.

• Court: Supreme Court of North Carolina
• Decided: December 16, 2022
• Docket: 317A21
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-131

No. 317A21

Filed 16 December 2022

IN THE MATTER OF R.S.H.

Appeal pursuant to N.C.G.S. § 7A-30(2) from an unpublished decision of a

divided panel of the Court of Appeals, 278 N.C. App. 605, 2021-NCCOA-369,

affirming an involuntary commitment order entered on 19 June 2020 by Judge Pat

Evans in District Court, Durham County. On 29 October 2021, the Supreme Court

allowed respondent’s petition for discretionary review as to additional issues. On 21

July 2022, this Court allowed the motion of respondent in In re J.R., 2022-NCSC-127,

to consolidate these cases for oral argument. Heard in the Supreme Court on 20

September 2022.

Glenn Gerding, Appellate Defender, by Candace Washington, Assistant Appellate Defender, for respondent-appellant.

Joshua H. Stein, Attorney General, by South A. Moore, General Counsel Fellow, and James W. Doggett, Deputy Solicitor General, for the State.

Disability Rights North Carolina, by Lisa Grafstein, Holly Stiles, and Elizabeth Myerholtz for Disability Rights North Carolina, National Association of Social Workers, Promise Resource Network, and Peer Voice North Carolina, amicus curiae.

NEWBY, Chief Justice.

¶1 In this case we first consider whether the trial court violated respondent’s due

process rights by proceeding with respondent’s involuntary commitment hearing IN RE R.S.H.

Opinion of the Court

when petitioner was not represented by counsel. For the reasons stated in the

majority opinion in In re J.R., 2022-NCSC-127, we conclude the trial court did not

violate respondent’s due process rights.1

¶2 Next respondent asks us to consider whether she preserved her right to

challenge the trial court’s incorporation of a non-testifying physician’s examination

report into its findings of fact and whether, by doing so, the trial court violated

respondent’s confrontation rights. If we hold that respondent’s challenge is preserved

and that the trial court committed error by incorporating the report, we also consider

whether the trial court’s remaining findings of fact, absent those derived from the

non-testifying physician’s report, were sufficient to support the trial court’s

involuntary commitment order. Upon considering the testimony of respondent’s

treating physician and incorporating an examination report from a non-testifying

physician, the trial court ordered that respondent be involuntarily committed for up

to thirty days. Because respondent preserved her confrontation argument and was

not afforded an opportunity to challenge the inclusion of the non-testifying

1 On 15 November 2021, In re J.R., 313A21, was designated as the lead case in six overlapping appeals. See In re E.M.D.Y., 279A21; In re C.G., 308A21; In re Q.J., 309A21; In re C.G.F., 312A21; In re J.R., 313A21; In re R.S.H., 317A21. The question presented to this Court in all six appeals was whether the trial court violated respondents’ due process right to an impartial tribunal. The due process issue in each of these cases came to this Court by right of appeal based upon a dissent. On 21 July 2022, the cases were consolidated for oral argument on this issue and heard in the Supreme Court on 20 September 2022. Because we resolve the due process issue based upon our holding in the lead case, that issue is not further discussed herein. IN RE R.S.H.

physician’s report, the trial court erred in incorporating the report into its findings of

fact. The trial court’s recorded factual findings, however, are based on competent

evidence from the testifying physician and are sufficient to support the trial court’s

conclusion that respondent is dangerous to herself. As such, the error is not

prejudicial, and the commitment order is affirmed.

¶3 On 21 May 2020, respondent was taken to Duke University Hospital “for

evaluation of command auditory hallucinations to commit suicide.” Carolyn Usanis,

M.D. examined respondent and observed her “laughing and talking to herself . . .

[and] crying uncontrollably.” Dr. Usanis also reported that respondent informed her

that “voices [were] saying mean things to her.” Dr. Usanis completed a commitment

report and petitioned for respondent’s involuntary commitment. The next day, Sarah

Kirk, M.D. examined respondent, completed a second commitment report, and also

recommended that respondent be involuntarily committed.

¶4 On 19 June 2020, the trial court held an involuntary commitment hearing.

Sandra Brown, M.D., respondent’s treating psychiatrist at Duke University Hospital,

testified at the hearing. Dr. Brown explained that respondent “has a long[-]standing

history of schizoaffective disorder” and has “spent a lot of time in these psychotic

states.” Based on respondent’s previous admissions to Duke, Dr. Brown noted that

respondent generally “takes a long time to recover” and to “respond to medication.”

Dr. Brown testified that in her current psychotic state, respondent was “talking about IN RE R.S.H.

hearing voices telling her to kill herself,” could be “seen running around the unit

screaming,” told doctors “that she does not think she needs any more treatment,” and

“ha[d] not really gotten better as quickly as we had hoped.” Dr. Brown testified that

this behavior “is a pretty typical presentation from [respondent].” As such, Dr. Brown

recommended that respondent be committed for thirty days.

¶5 At the close of the hearing, the trial court concluded that respondent was

mentally ill and dangerous to herself. The trial court made the following findings of

fact:

Respondent has told staff (Dr.) she does not need medication [Respondent] continues to hear voices and states she wants to kill herself [Respondent] has been diagnosed since age 18 with affective schizodisorder [Respondent] has history of non-compliance with meds [Respondent] is unable to have rational discussions w[ith] team about treatment/discharge [Respondent] runs on Unit screaming constantly [Respondent] shows no sign of improvement; meds are being changed (adjusted)/requires supervision

¶6 After the hearing concluded, the trial court incorporated the findings from Dr.

Kirk’s second examination report into the commitment order. Dr. Kirk did not testify,

however, and her report was not offered or admitted into evidence during the hearing.

Dr. Kirk’s report included the following findings:

[Respondent] presents with auditory hallucinations that are commanding her to kill herself. She has several plans for how she could kill herself including electrocution in a IN RE R.S.H.

bath tub with a hair dryer and cutting her wrists with a knife and has access to these means at home. Her symptoms are consistent with acute psychosis[.] [S]he is currently too disorganized in her mental illness to care for herself and her command auditory hallucinations put her at serious, imminent risk of harm to self outside of the secure environment of the hospital.

¶7 The trial court ordered that respondent be involuntarily committed for up to

thirty days. Respondent appealed.

¶8 On appeal, respondent argued, in relevant part, that (1) the trial court violated

her right to confrontation by incorporating the report of a non-testifying commitment

physician and (2) the remaining findings of fact were insufficient to support the

conclusion that she is dangerous to herself.2 The Court of Appeals affirmed the

commitment order. The Court of Appeals recognized that respondent’s “right to

confront and cross-examine witnesses may not be denied” but held that respondent

did not preserve her confrontation argument because she “failed to object

appropriately at the hearing” to the incorporation of Dr. Kirk’s report. In re R.S.H.,

278 N.C. App. 605, 2021-NCCOA-369, ¶ 9 (unpublished). Nevertheless, even if

respondent’s confrontation argument had been preserved and it were error, the Court

of Appeals concluded that the unchallenged findings, based on the testimony of the

witness at the hearing, were sufficient to support the commitment order. Id. ¶ 10.

2 As previously discussed, the due process issue arising from an appeal of right is resolved based on our decision in In re J.R., 2022-NCSC-127. Thus, for purposes of this opinion, we discuss only the additional issues. IN RE R.S.H.

¶9 Respondent petitioned this Court to consider (1) whether respondent failed to

preserve her argument that incorporating the report of a non-testifying physician

violated her confrontation right and (2) whether the trial court’s remaining findings

were sufficient to support its commitment order. This Court granted respondent’s

petition.

¶ 10 We first determine whether respondent failed to preserve her confrontation

argument by not objecting to incorporation of Dr. Kirk’s report into the trial court’s

commitment order. “[T]o preserve an issue for appellate review, a party must have

presented to the trial court a timely request, objection, or motion, stating the specific

grounds for the ruling the party desired the court to make . . . .” N.C. R. App. P.

10(a)(1). A party does not fail to preserve an issue for appellate review, however,

where the trial court acts on its own motion without prior notice and thereby denies

the party the opportunity to object. Cf. State v. Lachat, 317 N.C. 73, 86, 343 S.E.2d

872, 879 (1986) (concluding that the defendant was not required to go through the

formality of objecting when declarations of mistrials were entered on the trial court’s

own motion and without prior notice or warning to the defendant).

¶ 11 Here respondent did not fail to preserve her confrontation argument. The trial

court acted on its own motion without informing the parties of its intention to

incorporate Dr. Kirk’s report into the commitment order. After the close of the

hearing, the trial court incorporated Dr. Kirk’s report by merely checking a box on IN RE R.S.H.

the Involuntary Commitment Order form. Accordingly, respondent did not have an

opportunity to preserve the issue for appellate review.

¶ 12 Relatedly, we next consider whether the trial court violated respondent’s

confrontation right by incorporating Dr. Kirk’s report into its findings of fact. This

Court reviews decisions of the Court of Appeals for legal error. State v. Brooks, 337

N.C. 132, 149, 446 S.E.2d 579, 590 (1994). Questions of law are reviewed de novo. See

State v. Thomsen, 369 N.C. 22, 24, 789 S.E.2d 639, 641 (2016).

¶ 13 Subsection 122C-268(f) provides that “[c]ertified copies of reports and findings

of commitment examiners and previous and current medical records are admissible

in evidence, but the respondent’s right to confront and cross-examine witnesses may

not be denied.” N.C.G.S. § 122C-268(f) (2021) (emphasis added). As such, a respondent

must “be apprised of all the evidence received by the court and given an opportunity

to test, explain, or rebut it.” In re Gupton, 238 N.C. 303, 304, 77 S.E.2d 716, 717–18

(1953); see In re Wilson, 257 N.C. 593, 596–97, 126 S.E.2d 489, 492 (1962) (reversing

a commitment order when the respondent was denied notice of a hearing on and the

opportunity to challenge findings from her medical records that were used as the

basis for her commitment).

¶ 14 Here the trial court incorporated Dr. Kirk’s report after the hearing concluded.

Dr. Kirk did not testify at the hearing; the report was not formally offered or admitted

into evidence; and the trial court did not inform respondent that it was incorporating IN RE R.S.H.

the report into its findings of fact. Accordingly, respondent could not cross-examine

Dr. Kirk, challenge the findings in the report, or otherwise assert her confrontation

right. The trial court thus violated respondent’s confrontation right by incorporating

Dr. Kirk’s report into its findings of fact.

¶ 15 Incorporation of Dr. Kirk’s report was not prejudicial, however, because the

trial court’s written findings of fact are supported by Dr. Brown’s testimony and are

sufficient to support the trial court’s conclusion that respondent is a danger to herself.

An error is not prejudicial unless a respondent demonstrates “that a different result

would have likely ensued had the error not occurred.” Responsible Citizens v. City of

Asheville, 308 N.C. 255, 271, 302 S.E.2d 204, 214 (1983). For involuntary commitment

orders, the erroneous incorporation of an examination report is not prejudicial if the

trial court’s remaining factual findings, based on competent evidence, support its

ultimate finding that the statutory criteria for commitment have been met. See

generally In re Moore, 234 N.C. App. 37, 42–45, 758 S.E.2d 33, 37–38 (citing In re

Hogan, 32 N.C. App. 429, 433, 232 S.E.2d 492, 494 (1977)), disc. rev. denied, 367 N.C.

527, 762 S.E.2d 202 (2014).

¶ 16 “To support an inpatient commitment order, the court shall find by clear,

cogent, and convincing evidence that the respondent is mentally ill and dangerous to

self . . . .” N.C.G.S. § 122C-268(j) (2021). An individual is a danger to herself if she

has acted in a way that shows all of the following: IN RE R.S.H.

I. The individual 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 the individual’s daily responsibilities and social relations, or to satisfy the individual’s need for nourishment, personal or medical care, shelter, or self-protection and safety.

II. There is a reasonable probability of the individual’s suffering serious physical debilitation within the near future unless adequate treatment is given pursuant to this Chapter. A showing of behavior that is grossly irrational[ or] of actions that the individual is unable to control . . . shall create a prima facie inference that the individual is unable to care for himself or herself.

N.C.G.S. § 122C-3(11)(a)(1) (2021).

¶ 17 Thus, the trial court must make findings that address both respondent’s

current inability to care for herself and the probability that respondent would suffer

serious physical debilitation in the future without treatment. To satisfy the second

prong, the trial court’s findings must simply “indicate that respondent is a danger to

[her]self in the future.” See In re Moore, 234 N.C. App. at 44–45, 758 S.E.2d at 38

(emphasis added). While the trial court “must draw a nexus between past conduct

and future danger” it “need not say the magic words ‘reasonable probability of future

harm.’ ” In re J.P.S., 264 N.C. App. 58, 63, 823 S.E.2d 917, 921 (2019) (citing In re

Whatley, 224 N.C. App. 267, 273, 736 S.E.2d 527, 531 (2012)). IN RE R.S.H.

¶ 18 Respondent contends that the trial court’s factual findings, absent Dr. Kirk’s

report, were insufficient to support its conclusion that respondent is a danger to

herself. According to respondent, the trial court failed to make forward-looking

findings demonstrating a reasonable probability that respondent would suffer serious

physical debilitation in the near future under N.C.G.S. § 122C-3(11)(a)(1)(II).3

¶ 19 Appellate review of a commitment order “is limited to determining ‘(1) whether

the court’s ultimate findings are indeed supported by the “facts” which the court

recorded in its order as supporting its findings, and (2) whether in any event there

was competent evidence to support the court’s findings.’ ” In re Moore, 234 N.C. App.

at 42–43, 758 S.E.2d at 37 (quoting In re Hogan, 32 N.C. App. at 433, 232 S.E.2d at

494).

¶ 20 The trial court’s findings of fact, based on Dr. Brown’s testimony, indicate that

respondent is a danger to herself in the near future. The trial court found that

respondent was suicidal, “continues to hear voices,” “shows no signs of improvement,”

and “requires supervision.” Such findings are supported by competent evidence. Dr.

Brown testified that respondent was “talking about hearing voices telling her to kill

herself” and was “feeling like she can’t take it anymore and . . . wants to die.”

3Respondent does not challenge the trial court’s finding that she is unable to care for herself under sub-subdivision I. Accordingly, that finding is binding on appeal. See In re Moore, 234 N.C. App. at 43, 758 S.E.2d at 37 (citing State v. Baker, 312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984)). IN RE R.S.H.

Moreover, according to Dr. Brown, respondent had “not really gotten better” yet and

thus needed further supervision and adjustments to her medication. Dr. Brown

explained that respondent generally “takes a long time to recover” and adjust to

changes in medication “probably because she has spent a lot of time in these psychotic

states.” The trial court’s findings, supported by Dr. Brown’s testimony, reflect the

future risk that, without further inpatient treatment and supervision, respondent’s

symptoms and suicidal thoughts would persist, and she would likely harm herself.

¶ 21 The trial court also found that respondent “told staff . . . she does not need

medication” and was “unable to have rational discussions w[ith her] team about

treatment/discharge.” These findings are supported by Dr. Brown’s testimony that

respondent “does not think that she needs any more treatment,” but that to improve,

respondent needs further inpatient treatment and medication adjustments that

require close monitoring. The trial court’s findings indicate a reasonable probability

of respondent suffering future harm to herself without continued care. Respondent

did not believe she needed medication and could not communicate with her doctors

about a treatment plan; yet, respondent’s symptoms and suicidal thoughts

necessitated further inpatient care and supervision. See In re Zollicoffer, 165 N.C.

App. 462, 469, 598 S.E.2d 696, 700 (2004) (affirming the trial court’s finding that the

respondent was a danger to himself because he was not taking his medication or IN RE R.S.H.

cooperating with his medical team despite needing ongoing treatment and

supervision).

¶ 22 Although the trial court erred by incorporating Dr. Kirk’s report, the trial

court’s written findings, supported by Dr. Brown’s testimony in turn, support the trial

court’s conclusion that respondent is dangerous to herself. As such, respondent

cannot show “that a different result would have likely ensued had the error not

occurred.” Responsible Citizens, 308 N.C. at 271, 302 S.E.2d at 214. The Court of

Appeals thus correctly concluded that incorporation of the report was not prejudicial

because the “findings support the conclusions and order.” In re R.S.H.,

2021-NCCOA-369, ¶ 10.

¶ 23 In summary, regarding the due process issue, we affirm the Court of Appeals

based on our decision in In re J.R., 2022-NCSC-127. The Court of Appeals, however,

erred in deciding that respondent failed to preserve the objection to the trial court’s

incorporation of the non-testifying physician’s examination report. While

incorporation of the report was error, nonetheless, the Court of Appeals correctly held

that the trial court made sufficient findings of fact based on the evidence presented

by the testifying witness to support its involuntary commitment decision. Therefore,

the decision of the Court of Appeals is modified and affirmed.

MODIFIED AND AFFIRMED. IN RE R.S.H.

Justices HUDSON, MORGAN, and EARLS dissent from the holding on the

due process issue in this case for the reasons stated in Justice Earls’ dissenting

opinion in In re J.R., 2022-NCSC-127.

Justice EARLS concurring in part and dissenting in part.

¶ 24 I dissent from the majority’s holding on the due process issue in this case for

the reasons stated in my dissenting opinion in In re J.R., 2022-NCSC-127.

Justices HUDSON and MORGAN join in this opinion concurring in part and

dissenting in part.