NO. COA13-554

NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

IN THE MATTER OF:

A.N.B.

Moore County

No. 12 SPC 444J

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 twentyfour 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. 
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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. 
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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 twentyfour 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 
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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 
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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.
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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 
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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, 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 
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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, 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, 61 L. 

Ed. 2d 101, 117 (1979). However:

As with so many other legal presumptions, 

experience and reality may rebut what the law 

accepts as a starting point; the incidence of 

child neglect and abuse cases attests to this. 

That some parents “may at times be acting 

against the interests of their children” 

. . . creates a basis for caution, but is 

hardly a reason to discard wholesale those 

pages of human experience that teach that 

parents generally do act in the child's best 

interests. The statist notion that 

governmental power should supersede parental 

authority in all cases because some parents 

abuse and neglect children is repugnant to 

American tradition. 

Nonetheless, we have recognized that a state 

is not without constitutional control over 

parental discretion in dealing with children 

when their physical or mental health is 

jeopardized.

Id. at 602-03, 61 L. Ed. 2d at 119. 
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In defining the respective rights and 

prerogatives of the child and parent in the 

voluntary commitment setting, we conclude that 

our precedents permit the parents to retain a 

substantial, if not the dominant, role in the 

decision, absent a finding of neglect or 

abuse, and that the traditional presumption 

that the parents act in the best interests of 

their child should apply. We also conclude, 

however, that the child's rights and the 

nature of the commitment decision are such 

that parents cannot always have absolute and 

unreviewable discretion to decide whether to 

have a child institutionalized.

Id. at 604, 61 L. Ed. 2d at 120. 

Due process requires an inquiry by a “neutral factfinder” to 

determine whether constitutionally adequate procedures are 

followed before a child is voluntarily committed based upon his 

guardian’s affirmations. See Id. at 606, 61 L. Ed. 2d at 121. 

The Second Circuit has held:

We conclude that the due process clause does 

not require a state to provide an indigent 

patient with a consulting psychiatrist in 

every commitment or retention proceeding. 

Such a psychiatrist would perform two 

functions: (i) providing testimony favorable 

to non-commitment or release if the 

psychiatrist's professional judgment so 

warrants; and (ii) providing assistance to 

counsel in preparing the patient's case even 

where the doctor favors commitment or 

retention. These functions are not of 

sufficient import to implicate due process in 

every proceeding.

Goetz v. Crosson, 967 F.2d 29, 34-35 (2d Cir. 1992). The Second 

Circuit further stated that it has “no basis for assuming that 
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psychiatrists associated with the state have a bias toward 

institutionalization.” Id. 

Unlike civil or criminal proceedings, the 

interests of the parties to a civil commitment 

proceeding are not entirely adverse. The 

state's concerns are to provide care to those 

whose mental disorders render them unable to 

care for themselves and to protect both the 

community and the individuals themselves from 

dangerous manifestations of their mental 

illness. A major component of the state 

policy is thus the protection of mentally ill 

individuals[.]

Id. at 34-35 (citation omitted). We agree with and adopt the 

Second Circuit’s reasoning. The analysis may change somewhat when 

the mental health professional or professionals, testifying as 

experts, do not work for the State. As an example, it is 

conceivable, though certainly not expected, that self-serving 

financial motivations could affect the neutrality of mental health 

professionals working for private institutions. Institutional 

pressure to “fill the beds” in an effort to maximize profits is a 

hypothetical possibility. However, we do not mean to suggest that

a different standard should apply to private institutions, only 

that there might be different concerns for the trial court to 

consider, depending on the facts of any particular admission.

In the present case, it appears Respondent was voluntarily 

committed to a private institution. It was Respondent’s burden to 
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convince the trial court that there existed some valid concern or 

reason to provide funds for an “independent” expert. 

[T]he Due Process Clause does not grant an 

indigent individual subject to involuntary 

commitment an absolute right to the assistance 

of a consulting psychiatrist. Such a right 

might arise in a case in which counsel has 

shown a compelling fact-specific need for the 

assistance of a psychiatrist to educate 

counsel in particular aspects of a case. 

Id. at 36. In the present case, Respondent argues funding for an

additional expert was necessary because that expert might find 

something objectionable in the determinations of the experts who 

did testify, might help Respondent’s attorney better understand 

the testimony of the other experts, or might provide expert 

testimony that continued admission was not appropriate. However,

Respondent failed to provide the trial court with any evidence 

from which it could have determined that the motivations of the 

testifying experts were suspect, or that there existed some 

particularized reason, outside reasons that would be found in a 

standard case, why this case required funding an expert for 

Respondent. Because we hold that Respondent has failed to meet 

this burden, we further hold that the trial court did not abuse 

its discretion in refusing to order fees for an expert witness for 

Respondent. Respondent fails to meet his burden of showing an 

abuse of discretion. This argument is without merit.

III.
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In Respondent’s second argument, he contends the trial court 

abused its discretion by qualifying McCallum and Green as experts. 

We disagree.

It is well-established that trial courts must 

decide preliminary questions concerning the 

qualifications of experts to testify or the 

admissibility of expert testimony. When 

making such determinations, trial courts are 

not bound by the rules of evidence. In this 

capacity, trial courts are afforded “wide 

latitude of discretion when making a 

determination about the admissibility of 

expert testimony.” Given such latitude, it 

follows that a trial court's ruling on the 

qualifications of an expert or the 

admissibility of an expert's opinion will not 

be reversed on appeal absent a showing of 

abuse of discretion.

Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 

686 (2004) (citations omitted). “Opinion testimony given by an 

expert witness is competent when evidence is presented showing 

‘that, through study or experience, or both, the witness has 

acquired such skill that he is better qualified than the jury to 

form an opinion on the particular subject of his testimony.’” 

Cannizzaro v. Food Lion, 198 N.C. App. 660, 666, 680 S.E.2d 265, 

269 (2009) (citation omitted).

McCallum testified on voir dire that, at the time of the 

hearing, that she taught mental health “diagnosis and assessment 

courses” at an accredited online program in mental health 

counseling. She also testified that she worked for Jackson 
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Springs, conducting their “comprehensive clinical assessments for 

all the new admissions[.]” She had a master’s degree in 

counseling, a post-master’s degree in advanced school counseling 

and a doctorate in counselor education and supervision. McCallum 

had worked in the mental health and substance abuse field since 

1996, and had the Licensed Professional Counselor credential, 

which allowed her to diagnose and treat mental illness patients in 

North Carolina. McCallum had also been a school counselor for ten 

years, had previously worked in a day treatment facility, working 

mostly with children and adolescents, and had been conducting 

comprehensive clinical assessments since 2009.

Green testified on voir dire that she was currently employed 

with Pinnacle Management Group (“Pinnacle”), which owned Jackson 

Springs, and that she was providing clinical oversight for the 

patients in the facilities owned by Pinnacle. Green testified she

had a master’s degree in clinical counseling, had the Licensed 

Professional Counselor license for North Carolina, and the 

Licensed Clinical Addiction Specialist license for North Carolina, 

which allowed her to diagnose and treat substance abuse, and that 

she was nationally accredited as a clinical counselor. She 

testified that she had “provided treatment in mental health and 

substance abuse for families, adults and children in both public 

and private sectors and in several different settings to include 
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inpatient treatment as well as the judicial system.” Green 

testified that she had been providing these services since 1988, 

“but in a professional capacity since the year 2001.” 

We hold that there was substantial evidence presented on voir 

dire to support the trial court’s determination that McCallum and 

Green were “better qualified than the jury to form an opinion on 

the particular subject of [their] testimony.” Cannizzaro, 198 

N.C. App. at 666, 680 S.E.2d at 269 (citation omitted). The trial 

court did not abuse its discretion in allowing McCallum and Green 

to testify as experts in the fields of counseling and diagnosis 

and treatment of mental illness and substance abuse in minors. 

This argument is without merit.

IV.

In Respondent’s third argument, he contends the trial court 

erred in overruling his objections to McCallum’s opinion that 

Respondent was in need of continued inpatient treatment because 

McCallum relied on conclusions of the clinical staff and failed to 

form an independent opinion. We disagree.

N.C.R. Evid. 703 provides that the facts or 

data upon which an expert bases her opinion 

may be those (1) perceived by the witness or 

(2) made known to her at or before the hearing. 

The expert's opinion may even be based upon 

facts not otherwise admissible in evidence, 

provided the facts so considered are of the 

type reasonably relied upon by similar experts 

in forming opinions on the subject. 
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State v. Black, 111 N.C. App. 284, 293, 432 S.E.2d 710, 716-17 

(1993) (citation omitted). “We emphasize that the expert must 

present an independent opinion obtained through his or her own 

analysis and not merely ‘surrogate testimony’ parroting otherwise 

inadmissible statements.” State v. Ortiz-Zape, __ N.C. App. __, 

__, 743 S.E.2d 156, 162 (2013) (citation omitted).

McCallum interviewed and assessed Respondent when Respondent

was first admitted to Jackson Springs. McCallum testified 

concerning her approach to her 23 May 2012 interview of Respondent:

[B]efore I look at the records I like to talk 

with the client, and I always tell my clients 

the record is what other people say about you. 

I want to hear from you because you're the 

best source of information. 

Once I interview the child and get a 

current bio, psycho-social history, I then 

proceed to the record and start looking for 

inconsistencies maybe in what the client said 

and what's in the record and begin to sort of 

sort through all of that. 

Sometimes I have access to a case manager 

or a legal guardian. And I have noted in here 

that I did not speak with his legal guardian. 

I think I called and got an answering machine 

and did not ever speak with his legal guardian 

directly. 

So I depended on notes, the case manager, 

and my interview with him to come up with a 

diagnosis and to determine that he did in fact 

meet the criteria for PRTF placement.

McCallum assessed Respondent again on 2 October 2012. McCallum 

was asked: “And based on your examinations of [Respondent], 

especially the one most recently conducted in October, is it your 
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expert opinion that he continues to suffer from a mental illness?” 

McCallum answered: “It is.” She testified concerning the criteria 

required to admit a person into a twenty-four hour treatment 

facility and was asked on cross-examination: “But you have to look 

at him individually and decide whether or not he meets [the 

criteria for inpatient treatment][.]” McCallum replied: 

“Absolutely. And I did.” McCallum testified that she also 

consulted with the clinical staff at least monthly, and factored

their discussions into her diagnoses. We hold there was evidence 

presented that McCallum relied on her own assessments of 

Respondent, as well as evidence such as patient history and group 

clinical discussion, reasonably relied upon by similar experts. 

Black, 111 N.C. App. at 293, 432 S.E.2d at 716-17. This argument 

is without merit.

V.

In Respondent’s fourth argument, he contends Respondent’s 

continued admission to Jackson Springs was unlawful because “the 

record does not show that [Respondent] was evaluated by a physician 

within twenty-four hours” as required by law. We disagree.

Respondent contends this issue is controlled by N.C. Gen. 

Stat. § 122C-211(c), which states in part: “Any individual who 

voluntarily seeks admission to a 24-hour facility in which medical 

care is an integral component of the treatment shall be examined 
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and evaluated by a physician of the facility within 24 hours of 

admission.” N.C. Gen. Stat. § 122C-211(c) (2013). However, there 

is not sufficient record evidence that Jackson Springs is a 

“facility in which medical care is an integral component of the 

treatment.” Respondent argues that he receives prescription 

medication at Jackson Springs, but we do not believe the use of 

prescription medications at Jackson Springs is sufficient to 

define Jackson Springs as such a facility. N.C.G.S. § 122C-211(d)

states in part:

Any individual who voluntarily seeks admission 

to any 24-hour facility, other than one in 

which medical care is an integral component of 

the treatment, shall have a medical 

examination within 30 days before or after 

admission if it is reasonably expected that 

the individual will receive treatment for more 

than 30 days or shall produce a current, valid 

physical examination report, signed by a 

physician, completed within 12 months prior to 

the current admission.

N.C.G.S. § 122C-211(d). Because there is insufficient record 

evidence that medical care is an integral component of treatment 

at Jackson Springs, there was no statutory requirement that 

Respondent receive a medical examination within twenty-four hours 

of admission. Respondent makes no argument that the requirements 

of N.C.G.S. § 122C-211(d) have been violated in the present case. 

This argument is without merit.

VI.
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In Respondent’s final argument, he contends the trial court 

erred in failing to make a finding that Respondent was in need of 

further treatment at Jackson Springs. We agree.

Hearings for review of voluntary admission of minors to 

twenty-four hour treatment facilities are covered by N.C. Gen. 

Stat. § 122C-224.3, which states in relevant part:

(f) For an admission to be authorized beyond 

the hearing, the minor must be (1) mentally 

ill or a substance abuser and (2) in need of 

further treatment at the 24-hour facility to 

which he has been admitted. Further treatment 

at the admitting facility should be undertaken 

only when lesser measures will be 

insufficient. It is not necessary that the 

judge make a finding of dangerousness in order 

to support a concurrence in the admission.

(g) The court shall make one of the following 

dispositions:

(1) If the court finds by clear, cogent, 

and convincing evidence that the 

requirements of subsection (f) have 

been met, the court shall concur 

with the voluntary admission and set 

the length of the authorized 

admission of the minor for a period 

not to exceed 90 days[.]

N.C. Gen. Stat. § 122C-224.3 (2013). When reviewing a prior but 

substantially similar statute, this Court held that making the 

required findings is mandatory, and that failure to do so will 

result in reversal of the commitment order. In re Hiatt, 45 N.C. 

App. 318, 319, 262 S.E.2d 685, 686 (1980) (“We hold that under 

G.S. 122-56.7(b) before a court can concur with a voluntary 
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commitment for an incompetent, it must find that the incompetent 

is mentally ill or an inebriate and is in need of further treatment 

at the treatment facility.”).

In the case before us, the trial court found in the 29 October 

2012 order that Respondent was mentally ill, and that no less 

restrictive measures would be sufficient. The trial court then 

“authorize[d] the continued admission of . . . [R]espondent[.]” 

However, the trial court failed to specifically find that 

Respondent was in need of further treatment. Under the conclusions 

section of the AOC-SP-913M form, “Order Voluntary Admission of 

Minor,” there are boxes to indicate whether the trial court 

“concludes” that the minor is “mentally ill,” a “substance abuser,” 

“in need of continued treatment at the 24-hour facility to which 

[Respondent] has been admitted,” and whether “less restrictive 

measures would not be sufficient.” The trial court checked the 

boxes indicating that Respondent was mentally ill and that less 

restrictive measures would not be sufficient. The trial court 

failed to check a box to indicate that Respondent either was or 

was not in need of continued treatment at Jackson Springs. Though 

need for further treatment is a reasonable inference of the 

findings and conclusions made, we hold that the required ultimate 

findings of fact must be made explicitly and reverse the order of 

the trial court. Id. at 319-20, 262 S.E.2d at 686. We realize 
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there will be no practical effect to Respondent in reversal of the 

29 October 2012 order, as the order is no longer in effect, but 

this Court held in similar circumstances in Hiatt that failure to 

make the required findings results in reversal. See Id.

Reversed.

Judges BRYANT and STROUD concur.