                                      PER CURIAM

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                     February 3, 2016




In the Court of Appeals of Georgia
 A15A1976. GIBSON v. THE STATE.

      PER CURIAM.

      On October 29, 2009, Albert Gibson was found not guilty by reason of insanity

for the murder of his mother, the aggravated assault of his brother, and other crimes.1

Following an evaluation, Gibson was involuntarily committed to the custody of the

Department of Behavioral Health and Developmental Disabilities (“Department of

Health” or “DBHDD”) and confined at the West Central Georgia Regional Hospital

in Columbus, Georgia (“West Central”). See OCGA § 17-7-131 (e) (4). In April

2013,2 Gibson petitioned the court for release from confinement, see OCGA § 17-7-



      1
          Both Gibson and the State consented to this finding.
      2
         It appears that a status conference was also held in 2011 and that Gibson’s
status remained unchanged after that hearing.
131 (f), but his petition was denied. Approximately one year later, Gibson filed

another petition requesting a hearing on the issue of whether he continued to meet the

criteria for involuntary inpatient confinement. The trial court held another hearing,

at which time Gibson clarified that he was seeking a conditional release to be moved

from West Central to a less restrictive, group home. See OCGA § 37-3-1 (9.1), (10),

& (12.1). The trial court denied Gibson’s petition based on a finding that Gibson

failed to carry his burden of proving by a preponderance of the evidence that he no

longer requires involuntary inpatient confinement. Gibson appeals, arguing that the

trial court erred by finding he failed to carry his burden of proof to show that he meets

the criteria for conditional release from confinement at West Georgia. As more fully

set forth below, we now affirm.

       Pursuant to OCGA § 37-3-1 (9.1) (A) (i) & (ii), involuntary inpatient treatment

is required for a mentally ill person

      [w]ho presents a substantial risk of imminent harm to that person or
      others, as manifested by either recent overt acts or recent expressed
      threats of violence which present a probability of physical injury to that
      person or other persons; or (ii) [w]ho is unable to care for that person’s
      own physical health and safety as to create an imminently life-
      endangering crisis.



                                           2
Under OCGA § 17-7-131 (e) (5), a trial court may conditionally release a defendant

who has been found not guilty by reason of insanity and involuntarily committed as

an inpatient if the defendant subsequently meets the requirements for outpatient

treatment under OCGA §§ 37-3-1 (12.1) and 37-3-90.3 See also Gray v. State, 295

Ga. App. 737, 737, n.1 (673 SE2d 84) (2009). A mentally ill defendant who petitions

for release from involuntary inpatient commitment has the burden of rebutting the

presumption of the need for continued inpatient treatment and proving by a

preponderance of the evidence that inpatient involuntary treatment is no longer

required. Nagel v. State, 262 Ga. 888, 889 (1) (427 SE2d 490) (1993); Nelor v. State,

309 Ga. App. 165, 165-66 (709 SE2d 904) (2011); Gray v. State, 295 Ga. App. at

737. “The trial court, rather than mental health professionals, has the responsibility


      3
         OCGA § 37-3-1 (9.2) provides that “‘Inpatient treatment’ or ‘hospitalization’
means a program of treatment for mental illness within a hospital facility setting.”
Pursuant to subsection (12.2), “‘Outpatient treatment’ means a program of treatment
for mental illness outside a hospital facility setting” which includes certain services
“to alleviate or treat the patient’s mental illness so as to maintain the patient’s semi-
independent functioning and to prevent the patient’s becoming an inpatient.”
Although Gibson attempts to characterize his request as seeking transfer to a state-run
group home for “involuntary inpatient treatment,” he acknowledged at the hearing on
his petition that in order to obtain release to the group home, he was required to show
that he no longer meets the criteria for “hospitalization,” which means that,
notwithstanding his characterization of his request, he is in fact seeking a release
from inpatient commitment.

                                           3
for deciding applications for release,” Nagel, 262 Ga. at 889 (1), and is required to

weigh the evidence in light of the defendant’s burden to overcome the presumption

of insanity. Id. at 891-93 (2) (a) & (b); Newman v. State, 314 Ga. App. 99, 100 (722

SE2d 911) (2012). In ruling upon an inpatient’s application for release, the trial court

acts as the factfinder and determines the credibility of witnesses and the probative

value of the testimony concerning whether the defendant should be released and is

required to “consider all credible and relevant expert and other evidence presented

at the [release] hearing and contained in the trial record on the issue of conditional

release.” Gray v. State, 295 Ga. App. at 737.

      On appeal from the trial court’s decision, we review the evidence in the light

most favorable to the State and determine whether a rational trier of fact could have

found that the defendant failed to prove by a preponderance of the evidence that he

or she is no longer in need of involuntary inpatient treatment. Nagel, 262 Ga. at 892

(2) (b); Nelor, 309 Ga. App. at 166. In order to carry out this standard of review, the

trial court must make specific findings regarding the evidence and set out his or her

conclusions. Nagel, 262 Ga. at 892-93 (2) (b); Newman, 314 Ga. App. at 100.

      Viewed in this light, the evidence presented at the hearing shows that Gibson

has a long history of mental illness and had been admitted to psychiatric hospitals

                                           4
seven or eight times prior to the time he perpetrated the acts that led to his

involuntarily confinement at West Central, where he had been involuntary confined

for approximately five years at the time of the hearing.4 Gibson’s most current

diagnosis at that time was schizoaffective disorder, bipolar type, and polysubstance

abuse.

         Gibson, two expert witnesses, and one non-expert witness testified at the

hearing on his motion.5 Gibson acknowledged that in the past he was delusional and

experienced hallucinations, but said his psychosis is now controlled by medications

to the point that he feels “completely normal.” Gibson testified that he gets along well

with the other patients and staff at the hospital, participates in activities, and has been

granted certain privileges, such as moving around the hospital grounds unattended

and going off the hospital grounds on supervised excursions. Gibson testified that on

one such excursion he saw his brother in a restaurant, but he did not approach him

         4
       Gibson had been incarcerated for four years prior to his commitment at West
Central.
         5
        Gibson’s two experts witnesses were Dr. John Parmer and Angelina Fontanez.
Dr. Parmer has a Ph.d in psychology and is a licensed psychologist at West Central.
Fontanez has a masters degree and is also licensed to practice psychology in Georgia.
Parmer had been professionally involved with Gibson since 2009, and Fontanez’s
testimony was based on her interview with Gibson and a review of his records prior
to the hearing.

                                            5
because Gibson did not know how he would react. Gibson also opined that the

unwillingness of his relatives to have contact with him was the product of “distorted

thinking” because he is now a completely different person.

      Gibson was questioned about his prior drug use. He admitted that in the past

he had used legal prescription drugs that acted as stimulants, but when questioned

about books found in his apartment at the time of his arrest on how to manufacture

LSD and methamphetamine, Gibson maintained that he had purchased those books

because he had a “fantasy” about “getting people in the illegal [drug] market to give

up their illegal practice and work for the benefit of mankind in the legal market.”

Gibson was also questioned on cross-examination about his financial situation, but

he would only answer the State’s question after being instructed to do so by the trial

court. Gibson then testified that he had approximately $70,000 in savings over which

he, not a conservator or family member, had control. He also admitted that he had

made statements that it was getting “old” to be hospitalized and that the more he

improved the more difficult it became to be around “irrational people that do things

that are just crazy.”

      Dr. Parmer and Angelina Fontanez testified that in their opinion Gibson no

longer met the criteria for involuntary inpatient commitment and that he should be

                                          6
conditionally released to a group home because he had basically gone as far into the

recovery process as he could go while hospitalized. Dr. Parmer, whose “Annual

Update” report was also introduced into evidence at the hearing, testified that he

recommended outpatient commitment instead of outright release because Gibson

needed supervision to ensure compliance with treatment recommendations and

abstinence from substance abuse, without which Gibson could “relapse into an

imminent risk.” Dr. Parmer recommended that Gibson be transferred to a group home

operated by the DBHDD in Augusta Georgia, or to another comparable DBHDD-run

home, where he would reside and be supervised “24/7” by Department staff.

However, Dr. Parmer also testified that over time, less supervision might be

recommended for Gibson and he might be allowed greater freedom of movement.

       Dr. Parmer also testified that while in his opinion Gibson was not currently an

imminent risk to himself or others based on his lack of violence or threatening acts

toward others and lack of indication of any suicidal ideation, he did have certain

concerns about Gibson, especially Gibson’s view about medications as a means to

feel better and the risk of Gibson attempting to obtain more medication than he needs

to control his condition in order to “get a lift.” Dr. Parmer testified that although there

had been improvements, in the past there had been serious concerns about Gibson’s

                                            7
“interpersonal boundaries and relationships,” particularly in relation to “his judgment

and who he found attractive and wanted to solicit a personal or romantic relationship

from.” Dr. Parmer’s report also stated that Gibson could “react inappropriately” if he

became involved with someone who later rejected him, and that he is still “socially

awkward” and could be impulsive, although not in a “seriously dangerous manner.”

Dr. Parmer also testified on cross-examination that he did not agree with Gibson’s

testimony that he was “recovered” and that because Gibson believed he was

recovered, he did not fully appreciate the risks of drifting into certain past behaviors,

such as self or over-medicating, and did not understand why others did not believe

he was recovered. Additionally, Dr. Parmer testified about Gibson’s lack of empathy

concerning his family and his lack of understanding concerning why his family did

not want a relationship with him. The doctor said this was another reason he

recommended continued involuntary commitment, supervision, and psychotherapy.

Dr. Parmer acknowledged that Gibson had made remarks expressing frustration with

his continued hospitalization and irritation because of “irrational people” who would

not allow him to be released even though it had been recommended by his doctors.

He explained that one goal of Gibson’s therapy was to enable him to understand that

such remarks might be misunderstood and not “go over very well in a courtroom.”

                                           8
Further, Dr. Parmer’s report reflected that “feeling neglected” was a likely “trigger”

for Gibson, who had remarked that other patients at the hospital who caused trouble

received more attention than he did and speculated that perhaps he should cause

trouble to get more attention.

      Dr. Parmer also testified that Gibson had engaged in “doctor shopping” for

years and that in the past he had used amphetamines and reportedly used methadone

in jail. Based on this prior history, Dr. Parmer said he doubted the credibility of

Gibson’s testimony that he had purchased the books containing detailed chemical

formulas and methods for producing certain drugs for benevolent reasons. Upon

questioning by the trial court, Dr. Parmer acknowledged that Gibson could simply not

reveal to his doctors if he was delusional or suffering from hallucinations, but he did

not believe that Gibson was engaging in that degree of deception. Dr. Parmer also

testified, however, that Gibson’s behavior indicated that he was probably delusional,

but not revealing it. Moreover, he reiterated that his most serious concern was

Gibson’s limited insight or limited understanding that he has not completely

recovered, as well as Gibson’s need to be vigilant to avoid triggers and relapse.

      Gibson also presented the testimony of William Killings, who had visited

Gibson twice a week for the past four years to study the Bible with Gibson. Killings

                                          9
testified that he had never had any problems during his visits with Gibson; that

Gibson spoke to him in logical, reasonable terms; and that he did not know the extent

of Gibson’s “problem” prior to the hearing.

      Numerous letters from Gibson’s family and others were also introduced by the

State at the hearing. These letters expressed adamant opposition to Gibson’s release

to a group home. These letters noted the trauma that had been inflicted on the family,

especially his daughter, because of his actions and their continued fear of Gibson for

themselves and/or his family members, including a female family member with whom

Gibson had been obsessed since childhood. These letters also expressed “profound

concern” if Gibson were released to a less restrictive environment, including that he

could find family member’s addresses and phone numbers over the internet.6

      Based on the evidence presented, the trial court found that Gibson continued

to present a risk of imminent harm to himself and others, citing the following findings

to support its conclusion: 1) the extremely violent nature of the original offenses; 2)

Gibson’s long history of substance abuse; 3) Gibson’s irritation with continued

      6
        Because Gibson’s history of violence was limited to family members and
because his family members vehemently opposed his release to outpatient
confinement, the recommendation was for Gibson to be housed in a group home that
was “a distance away” from his family, although some of the group homes were
located in the same area where some of his relatives currently resided.

                                          10
hospitalization; 4) his relationship patterns; 5) Gibson’s statement to treatment

providers that he was giving consideration to the idea that if he caused trouble he

would get more attention; 6) his lack of personal support; 7) the large financial estate

Gibson accumulated while hospitalized; 8) Gibson’s high level of intelligence and

education; 9) the fact that the female relative toward whom Gibson had previously

expressed romantic feelings lives in the area of the group home he was requesting;

10) Gibson’s family’s adamant opposition to his release and/or transfer; 11) Gibson’s

long history of mental illness, including eight hospitalizations prior to the offenses

that resulted in the current hospitalization; 12) the statements by Dr. Parmer that

Gibson may not take his illness seriously and/or may not appreciate the gravity of the

offenses; and 13) Dr. Parmer’s statement that while there is no evidence to suggest

the Defendant is faking his recovery, he is certainly intelligent enough to do so.

      Although Gibson argues that the evidence did not support these findings and

overwhelmingly showed that he should be released from involuntary inpatient

confinement, we find that, viewing the evidence in the proper light, the trial court was

authorized to find that Gibson failed to carry his burden to prove by a preponderance

of the evidence that he should be conditionally released to outpatient treatment in a



                                          11
group home. Accordingly, the trial court’s order denying Gibson’s petition for

conditional release is affirmed.

      Judgment affirmed. Division Per Curiam. All Judges concur.




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