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.
12