{ "id": 8547380, "name": "IN THE MATTER OF MARY LOUISE SALEM IN THE MATTER OF CLYDE McWHIRTER IN THE MATTER OF LEON MILES IN THE MATTER OF AUDREY HOLT", "name_abbreviation": "In re Salem", "decision_date": "1976-10-06", "docket_number": "Nos. 7626DC278, 7626DC279 7626DC280, 7626DC281", "first_page": "57", "last_page": "62", "citations": [ { "type": "official", "cite": "31 N.C. App. 57" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "200 S.E. 2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "20 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548970 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/20/0001-01" ] }, { "cite": "221 S.E. 2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566779 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0095-01" ] }, { "cite": "349 F. Supp. 1078", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5700123 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/f-supp/349/1078-01" ] } ], "analysis": { "cardinality": 547, "char_count": 10884, "ocr_confidence": 0.692, "pagerank": { "raw": 4.304989186553316e-07, "percentile": 0.9168549981099284 }, "sha256": "41c26efebcbaa658b7a1cc48abdf4ca49062f575e7eb6ea16920056ac650dac5", "simhash": "1:eb045f8ed48692f1", "word_count": 1706 }, "last_updated": "2023-07-14T16:36:26.493722+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Brock and Judge Parker concur." ], "parties": [ "IN THE MATTER OF MARY LOUISE SALEM IN THE MATTER OF CLYDE McWHIRTER IN THE MATTER OF LEON MILES IN THE MATTER OF AUDREY HOLT" ], "opinions": [ { "text": "ARNOLD, Judge.\nUnder the statute as it existed prior to June 1974 a person could be involuntarily committed when determined \u201cby reason of the commission of overt acts [that] the person is violent and of imminent danger to himself or others, or is gravely disabled.\u201d [G.S. 122-58.6 (a) (1973)] The present statute provides,\n\u201cTo support a commitment order, the court is required to find by clear, cogent and convincing evidence, that the respondent is mentally ill or inebriate, and imminently dangerous to himself or others.\u201d G.S. 122-58.7 (i).\nRespondents assert the unconstitutionality of North Carolina\u2019s involuntary commitment statutes, G.S. 122-58.1 et seq. The difference in the present law and the old is that the requirement of \u201covert acts\u201d under the former law has been replaced by a requirement of \u201cclear, cog\u00e9nt and convincing evidence.\u201d Respondents argue that the definitions of \u201cmental illness\u201d and \u201cinebriety\u201d found in G.S. 122-36 are vague and arbitrary unless read in conjunction with a requirement that \u201cimminent danger\u201d be shown or evidenced by some \u201covert act.\u201d\nIn support of their position that some overt act is required in order for an involuntary commitment to be constitutional respondents cite Lessard v. Schmidt, 349 F. Supp. 1078 (1972). That case holds that \u201cimminent danger,\u201d as used in Wisconsin\u2019s involuntary commitment act, implicitly requires \u201ca finding of a recent overt act, attempt or threat to do substantial harm to oneself or another,\u201d and without making such findings there can be no involuntary commitment.\nG.S. 122-58.2 provides that the definition of mental illness under Chap. 122, Art. 5A means \u201cmental illness\u201d as defined in G.S. 122-36(d), which is as follows:\n\u201cThe words \u2018mental illness\u2019 shall mean an illness which so lessens the capacity of the person to use his customary self-control, judgment, and discretion in the conduct of his affairs, and social relations as to make it necessary or advisable for him to be under treatment, care, supervision, guidance, or control. The words \u2018mentally ill\u2019 shall mean a person with a mental illness.\u201d\nThe definition of mental illness in G.S. 122-36 (d) is certainly capable of being understood and objectively applied with the help of medical experts. In a recent case attacking the constitutionality of the statutory procedure for' sterilization of mentally ill persons our Supreme Court held that \u201cmental illness\u201d as defined by G.S. 35-1.1 was not vague and arbitrary. In re Moore, 289 N.C. 95, 221 S.E. 2d 807 (1976). The definition contained in G.S. 35-1.1 is virtually the same definition contained in G.S. 122-36 (d).\nThe words \u201cimminently dangerous\u201d simply mean that a person poses a danger to himself or others in the immediate future. An overt act may be clear, cogent and convincing evidence which will support a finding of imminent danger, but we cannot agree that there must be an overt act to establish imminent dangerousness.\nWe hold that G.S. 122-58.1 et seq., and the related definition of mental illness, is not unconstitutionally vague.\nRespondents next contend that the trial court abused its discretion by indiscriminately considering their prior hospitalizations. We find no abuse of discretion. The State, however, concedes that it was error to admit evidence of prior voluntary admissions in disregard to G.S. 122-56.6, but contends that the error is harmless where there is other competent evidence to support the commitment. We agree.\nWe now consider respondent\u2019s assignments of error to the court\u2019s finding of mental illness and imminent danger to self or others. Respondents McWhirter and Miles argue that there is no evidence to support this finding.\nThe district court must make separate and distinct findings of (1) mental illness and/or inebriacy and (2) imminent danger to self or others. We see no problem in the cases before us relating to the finding of mental illness. There is clear, cogent and convincing evidence of mental illness in the case of McWhirter and in the case of Miles. However, we agree with both respondents\u2019 contentions that there is not clear, cogent and convincing evidence to support a finding of imminent danger.\nIn the case of Clyde McWhirter the only evidence tending to show dangerousness was provided by a doctor who indicated that McWhirter \u201cappears mentally unable [to] care for self & probably of imminent danger to self.\u201d [Emphasis added.] Such evidence is not clear, cogent and convincing.\nIn the case of Leon Miles the doctor\u2019s affidavit stated that Miles \u201cappears unable to cope with daily living.\u201d Again the evidence fails to present clear, cogent and convincing evidence of imminent danger.\n' Respondents Holt and Salem set out no reasons or arguments in support of their assignments of error to the court\u2019s findings of mental illness and imminent danger. These assignments of error are therefore taken as abandoned. Rule 28(b) (3), Rules of Practice in the Court of Appeals. Higgins v. Builders and Finance, Inc., 20 N.C. App. 1, 200 S.E. 2d 397 (1973).\nAs to respondents McWhirter and Miles the judgment is vacated. As to respondents Holt and Salem the judgment is affirmed.\nAffirmed in part and vacated in part.\nChief Judge Brock and Judge Parker concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney Isaac T. Avery III, for the State.", "Assistant Public Defender James Fitzgerald for Clyde McWhirter, Leon Miles, Audrey Holt and Mary Louise Salem, respondent appellants." ], "corrections": "", "head_matter": "IN THE MATTER OF MARY LOUISE SALEM IN THE MATTER OF CLYDE McWHIRTER IN THE MATTER OF LEON MILES IN THE MATTER OF AUDREY HOLT\nNos. 7626DC278, 7626DC279 7626DC280, 7626DC281\n(Filed 6 October 1976)\n1. Insane Persons \u00a7 1 \u2014 involuntary commitment statutes \u2014 constitutionality\nG.S. 122-58.1 et seq., N. C.\u2019s involuntary commitment statutes, are not unconstitutionally vague because they require that a person\u2019s imminent danger to himself or others be shown by \u201cclear, cogent and convincing evidence\u201d rather than by the \u201ccommission of overt acts.\u201d\n2. Insane Persons \u00a7 1 \u2014 involuntary commitment proceedings \u2014 evidence improperly allowed \u2014 harmless error\nThe trial court in four involuntary commitment proceedings did not abuse its discretion in considering respondents\u2019 prior hospitalizations, though it was error to admit evidence of prior voluntary admissions in disregard of G.S. 122-56.6; however, this error was harmless when there was other competent evidence to support the commitment.\n3. Insane Persons \u00a7 1 \u2014 involuntary commitment \u2014 imminent d\u00e1nger of respondents \u2014 no clear, cogent, convincing evidence\nThe trial court in two involuntary commitment proceedings erred in determining that respondents were imminently dangerous to themselves or others, since evidence that one respondent appeared \u201cmen- \u25a0 tally unable [to] care for self & probably of imminent danger to self,\u201d and evidence that the other respondent appeared \u201cunable to cope with daily living\u201d did not amount to clear, cogent and convincing evidence of imminent danger.\nAppeal by respondents from Black, Judge. Judgments entered 7 November 1975 in District Court, Mecklenburg County. Heard in the Court of Appeals 24 August 1976. .\nThis appeal consolidates four involuntary commitment proceedings heard in the District Court. Each appeal is from an ordter pursuant to G.S. 122-58.7 adjudging the respondent \u201cmentally ill\u201d and \u201cimminently dangerous to himself or others\u201d and committing respondents to a mental health facility.\nIn the case of Mary Louise Salem the court heard the testimony of two witnesses for the State and admitted the written diagnoses and evaluations of two qualified physicians who examined Salem pursuant to G.S. 122-58.6. Evidence tended to show that Salem required medication but had thrown it away, that she demanded sexual favors from her brother and that she violently attacked her brother causing injury to him and to herself. The diagnoses and evaluations of the physicians reported that respondent was physically filthy, obscene, incoherent and loud, that she threatened her brother, and that she had sometimes become violent without cause. The doctors diagnosed her condition as an acute and chronic psychotic state and concluded that she could be dangerous to herself and to others. The court adopted the physicians\u2019 reports as its findings of fact and, in addition, noted that previously Salem had been twice voluntarily admitted and three times involuntarily committed to a mental health hospital.\nIn the case of Audrey Holt the court heard one witness who testified that respondent was under medical supervision and on medication. Further, the witness testified that Holt stopped taking her medicine and that \u201cwhenever she begins to get off her medication . . . she is rather belligerent . . . and begins to use profanity against her mother and then she begins to push and shove.\u201d The witness also testified that Holt threatened to kill her mother, but the time when this threat occurred was sometime after 1970 and not within the two months preceding the hearing. The witness also testified that Holt was unemployed but received income from the Social Security Administration. The court also admitted two physicians\u2019 reports, one of which included the allegations of Holt\u2019s family that she was violent and hostile toward her mother. The doctors diagnosed her condition as paranoid schizophrenia. One doctor reiterated that she was very paranoid. The court incorporated the physicians\u2019 statements as its findings of fact, and noted that Holt had on four previous occasions been admitted to a hospital for the mentally ill.\nIn the case of Clyde McWhirter no witnesses appeared. The evidence consisted of two physicians reports similar to those introduced in the other hearings. One report described McWhir-ter as cooperative and well mannered but confused, talkative, and impaired in his judgment and reasoning. The other physician noted that McWhirter was old, confused and lacking in judgment and control, but that he also was friendly and put up a pleasant joking front. The doctor concluded that McWhirter \u201cappears mentally unable [to] care for self & probably of imminent danger to self.\u201d Both doctors identified McWhirter\u2019s condition as chronic brain syndrome. The District Court adopted these reports as its findings of fact. In addition the court noted seven prior instances of voluntary admission to hospitals.\nIn the case of Leon Miles doctors\u2019 reports were admitted which said that Miles was disoriented, confused and irrational but well behaved. Further, the reports said he was apathetic, unwilling to work, vaguely hostile and paranoid toward everyone. One doctor definitely diagnosed the condition as schizophrenia. The other doctor was less certain, writing only \u201cAcute & Chronic Psychotic state? Schizophrenia?\u201d Once again, the judge incorporated the findings of the doctors as his own and noted three prior voluntary admissions.\nAttorney General Edmisten, by Associate Attorney Isaac T. Avery III, for the State.\nAssistant Public Defender James Fitzgerald for Clyde McWhirter, Leon Miles, Audrey Holt and Mary Louise Salem, respondent appellants." }, "file_name": "0057-01", "first_page_order": 85, "last_page_order": 90 }