In re A.N.B.

• Decision Date: 18 February 2014
• Docket Number: No. COA13–554.,COA13–554.
• Citation: 754 S.E.2d 442
• Court: North Carolina Court of Appeals
• Parties: In the Matter of A.N.B.

754 S.E.2d 442

In the Matter of A.N.B.

No. COA13–554.

Court of Appeals of North Carolina.

Feb. 18, 2014.

Appeal by Respondent from order entered 29 October 2012 by Judge Don W. Creed, Jr. in District Court, Moore County. Heard in the Court of Appeals 5 November 2013.

Attorney General Roy Cooper, by Assistant Attorney General M. Elizabeth Guzman, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Hannah Hall, for Respondent–Appellant.

McGEE, Judge.

A.N.B. (“Respondent”), a minor, was voluntarily admitted by his guardian to Jackson Springs Treatment Facility (“Jackson Springs”) on 2 October 2012. Jackson Springs is a secure twenty-four hour, or inpatient, psychiatric treatment facility. Respondent was assessed by Freida Green (“Green”) on 2 October 2012, and Green filed an evaluation for admission on the following day. Respondent was appointed counsel on 4 October 2012. Respondent moved for funds to hire a psychiatric expert on 8 October 2012. A hearing was conducted on 15 October 2012 to determine if the trial court concurred in Respondent's admission to Jackson Springs. At the 15 October hearing, the trial court deferred ruling on Respondent's 8 October 2012 motion for funds, and continued the matter until 29 October 2012 to allow time for Respondent's attorney to interview experts from Jackson Springs. At the 29 October 2012 hearing, the trial court denied Respondent's 8 October 2012 motion for funds to hire an expert. Two witnesses from Jackson Springs, Green and Leah McCallum (“McCallum”), were allowed to testify as experts at the hearing. The trial court, by order entered 29 October 2012, concurred with the voluntary admission of Respondent to Jackson Springs, and Respondent's admission at Jackson Springs was continued for ninety days, the statutory maximum. Respondent appeals.

Appealability

The order continuing Respondent's admission at Jackson Springs for ninety days was entered on 29 October 2012. This meant the order expired in late January 2013. Because Respondent is not currently being affected by the 29 October 2012 order, this appeal would normally be dismissed as moot. “ ‘The general rule is that an appeal presenting a question which has become moot will be dismissed.’ ” Thomas v. N.C. Dept. of Human Resources, 124 N.C.App. 698, 705, 478 S.E.2d 816, 820 (1996) (citation omitted). However, there are exceptions to this general rule, including “that courts may review cases that are otherwise moot but that are ‘capable of repetition, yet evading review [,]’ ” and “that the court has a ‘duty’ to address an otherwise moot case when the ‘question involved is a matter of public interest.’ ” Id. at 705, 478 S.E.2d at 820–21 (citations omitted).

Because orders of voluntary admission of a minor to a twenty-four hour psychiatric treatment facility can only be for a maximum length of ninety days, N.C. Gen.Stat. § 122C–224.3(g) (2013), we hold that appeal from orders of voluntary admission of a minor to a twenty-four hour facility falls into the “capable of repetition, yet evading review” exception. Because of the State's great interest in preventing unwarranted admission of juveniles into these treatment facilities, we further hold that appeal from these orders falls into the public policy exception. This appeal is properly before us.

I.

The issues on appeal are whether: (1) the trial court erred by denying Respondent's motion for funds to hire an expert, (2) the trial court abused its discretion by qualifying two witnesses as experts, (3) the trial court erred by allowing certain expert opinion testimony, (4) Respondent's continued admission to Jackson Springs was contrary to law because a medical examination should have been performed on Respondent within twenty-four hours of admission and, (5) the trial court's findings of fact were insufficient to support its conclusions and order.

II.

Respondent first argues that the trial court abused its discretion in denying Respondent's motion for funds to hire an expert witness. We disagree.

It is State policy to encourage voluntary admissions to facilities. It is further State policy that no individual shall be involuntarily committed to a 24–hour facility unless that individual is mentally ill or a substance abuser and dangerous to self or others. All admissions and commitments shall be accomplished under conditions that protect the dignity and constitutional rights of the individual.

N.C. Gen.Stat. § 122C–201 (2013). Commitment hearings are civil proceedings. In re Underwood, 38 N.C.App. 344, 347, 247 S.E.2d 778, 780 (1978). Voluntary admission of minors is covered by N.C. Gen.Stat. § 122C–221:

Except as otherwise provided in this Part, a minor may be admitted to a facility if the minor is mentally ill or a substance abuser and in need of treatment. Except as otherwise provided in this Part, the provisions of G.S. 122C–211 shall apply to admissions of minors under this Part. Except as provided in G.S. 90–21.5, in applying for admission to a facility, in consenting to medical treatment when consent is required, and in any other legal procedure under this Article, the legally responsible person shall act for the minor.

N.C. Gen.Stat. § 122C–221(a) (2013).

Respondent was provided counsel as required. “Within 48 hours of receipt of notice that a minor has been admitted to a 24–hour facility wherein his freedom of movement will be restricted, an attorney shall be appointed for the minor in accordance with rules adopted by the Office of Indigent Defense Services.” N.C. Gen.Stat. § 122C–224.1(a) (2013). N.C. Gen.Stat. § 7A–498.3 states:

(a) The Office of Indigent Defense Services shall be responsible for establishing, supervising, and maintaining a system for providing legal representation and related services in the following cases:

(1) Cases in which an indigent person is subject to a deprivation of liberty or other constitutionally protected interest and is entitled by law to legal representation;

....

(3) Any other cases in which the Office of Indigent Defense Services is designated by statute as responsible for providing legal representation.

....

(c) In all cases subject to this Article, appointment of counsel, determination of compensation, appointment of experts, and use of funds for experts and other services related to legal representation shall be in accordance with rules and procedures adopted by the Office of Indigent Defense Services.

N.C. Gen.Stat. § 7A–498.3 (2013). “In ... non-criminal cases, the court may approve fees for the service of expert witnesses, investigators, and others providing services related to legal representation in accordance with all applicable IDS rules and policies.” NC R IND DEF SERV Rule 1.10 (Amended eff. Dec. 9, 2011). There are no statutes or rules that more definitively state when fees for expert witnesses should be granted in a situation such as the one before us. The decision to grant or deny fees in the present case was discretionary. In re Hardy, 294 N.C. 90, 97, 240 S.E.2d 367, 372 (1978) (citation omitted) (“Ordinarily when the word ‘may’ is used in a statute, it will be construed as permissive and not mandatory.”).

Similar language from Article 36 of Chapter 7A of our General Statutes, “Entitlement of Indigent Persons Generally,” has been held to be discretionary:

N.C. Gen.Stat. § 7A–454 (2003) states, “[f]ees for the services of an expert witness for an indigent person and other necessary expenses of counsel shall be paid by the State in accordance with rules adopted by the Office of Indigent Defense Services.” .... [I]t is in the trial court's discretion whether to grant requests for expenses to retain an expert witness or to conduct a deposition.

In re D.R., 172 N.C.App. 300, 304–05, 616 S.E.2d 300, 304 (2005) (citations omitted). In the Article 36, Chapter 7A context, our Courts have held that funds for an expert witness should be provided when there is a reasonable likelihood that the expert witness will be of material assistance in the preparation of the defense, or that without such help it is probable that the respondent or defendant will not receive a fair trial. D.R., 172 N.C.App. at 305, 616 S.E.2d at 304–05 (holding trial court did not abuse its discretion in denying funds for expert witness in termination of parental rights hearing). “ ‘Mere hope or suspicion that favorable evidence is available is not enough to require that such help be provided.’ ” Id. at 305, 616 S.E.2d at 304 (citations omitted). We hold the same rule applies in a voluntary commitment proceeding of a minor.

However, what is required to show that an expert witness will be of material assistance in the preparation of the defense or, that without such help, it is probable the respondent will not receive a fair hearing, is different in a commitment hearing than it is in a criminal trial or a termination of parental rights proceeding. See Addington v. Texas, 441 U.S. 418, 429, 431, 99 S.Ct. 1804, 60 L.Ed.2d 323, 333 (1979) (“the initial inquiry in a civil commitment proceeding is very different from the central issue in either a delinquency proceeding or a criminal prosecution”).

This Court has held that a minor, facing commitment pursuant to the voluntary commitment statute, is entitled to due process protections. In re Long, 25 N.C.App. 702, 706–07, 214 S.E.2d 626, 628–29 (1975). “It is not disputed that a child, in common with adults, has a substantial liberty interest in not being confined unnecessarily for medical treatment and that the state's involvement in the commitment decision constitutes state action under the Fourteenth Amendment.” Parham v. J. R., 442 U.S. 584, 600, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) (citations omitted).

When addressing constitutional issues involving a child and his parent or guardian, the law starts with the presumption that the parent or guardian acts with the best interests of the child as the primary goal. Parham v. J. R., 442 U.S. 584, 602, 99 S.Ct. 2493,...