In Re M.L., Petitioner for Expungement

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1499-10T2   IN RE M.L., PETITIONER FOR EXPUNGEMENT. _______________________________

February 8, 2012     Submitted June 8, 2011 – Decided   Before Judges R. B. Coleman and Lihotz.   On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2127-10.   Evan F. Nappen, attorneys for appellant M.L. (Louis P. Nappen, on the brief).   Respondents Ocean County, Burlington County, and New Jersey Department of Human Services, Division of Mental Health Services have not filed briefs.   PER CURIAM Petitioner M.L., a retired police officer, appeals from the denial of his application to expunge records of his voluntary mental health commitment, pursuant to N.J.S.A.30:4-80.8. We reverse and remand. These facts are taken from the plenary hearing conducted by the Law Division. In 2006, after twenty-five years of service, petitioner retired with the rank of sergeant from a municipal police force. Following retirement, petitioner suffered from insomnia and then experienced the emotional stress of a separation, when his wife left the marital home with their two young children. In January 2009, while discussing their marital difficulties, petitioner begged his wife to reconcile; she declined, insisting she wanted a divorce. Petitioner retrieved an unloaded, holstered handgun from a closet, told his wife “Well, I have nothing[,]” and walked toward the bathroom. Petitioner’s wife grabbed his arm and demanded he release the gun, which he did. Petitioner later explained he thought he could “shock [his wife] into coming home” and that he “was desperate and . . . just wanted her to come home.” When asked whether he would have harmed himself that day, petitioner responded, “[a]bsolutely not.” Petitioner investigated counseling services but was unable to secure a timely appointment. On January 8, 2009, petitioner’s wife left the children in his care and went to the police department to express a concern that petitioner might harm himself. Two police officers responded by going to petitioner’s residence. After talking with the officers, petitioner agreed to be escorted to the Southern Ocean County Hospital (SOCH). From there he was taken to Hampton Behavioral Health Center (Hampton), where he voluntarily admitted himself for psychiatric treatment. After a week, petitioner was discharged from Hampton and commenced outpatient treatment at St. Barnabas Behavioral Health Center (St. Barnabas). The treatment provided by St. Barnabas concluded on February 13, 2009, at which time petitioner began regular sessions under the care of Frank Abenante, M.D. At the time of the hearing, petitioner maintained his treatment with Dr. Abenante, attending thirty-minute sessions every three weeks. Petitioner filed an Order to Show Cause and verified complaint seeking expungement of his mental health commitment records. The pleadings were accompanied by petitioner’s certification attesting to the facts set forth and a certified letter from Dr. Abenante that advised petitioner “has shown no difficulties in control of his behaviors and has shown good responsibilities in control of his moods, behaviors and actions.” Further, the psychiatrist wrote, petitioner “has been compliant with treatment and has been appropriate with taking his medication[s,]” which were listed, and in his opinion “has substantially improved since his discharge from hospitalization.” Petitioner’s complaint was served upon both the Ocean and Burlington County Adjuster’s offices, the Medical Directors of SOCH, Hampton, and St. Barnabas, and the State Division of Mental Heath Services. Petitioner received no objections. However, the trial judge was sent a “letter of concern” from Craig Trigiani, D.O., Hampton’s Medical Director. The court read the letter into the record. Dr. Trigiani identified his concern regarding whether petitioner “sought to either purchase or reclaim his firearms” because “expungement of this record would . . . allow [petitioner] to answer ‘no’ to the question of, ‘Have you ever had a psychiatric disorder or ever been psychiatrically hospitalized.'” Dr. Trigiani noted petitioner “did make a threat at one point in January 2009 to shoot himself,” and acknowledged petitioner had voluntarily sought treatment. Petitioner’s care at Hampton was “excellent” and petitioner “did quite well, and left to be treated by his outpatient provider.” Dr. Trigiani further admitted, he had “no idea at this time if [petitioner] is doing fine or not and [had] no clue as to why he is requesting an expungement of the record[,]” but he had “great concern given the fact that [petitioner] did have a psychiatric hospitalization” and that an expungement would “completely eliminate [the records] from any visible eye forever.” The trial judge scheduled a plenary hearing, prior to which petitioner provided copies of his medical records from all treating mental health facilities. During the hearing, petitioner testified regarding the facts leading to his hospitalization and Dr. Abenante presented his expert testimony telephonically. No other parties appeared. At the conclusion of petitioner’s direct examination, the trial judge inquired on the status of petitioner’s firearms purchaser identification card and his reason for seeking expungement. After objecting because the information was not required by the statute, petitioner responded that his request related to a desire to seek employment as an security guard, a position which would not necessarily require he be armed. Dr. Abenante recited his involvement with petitioner’s treatment, beginning shortly after petitioner’s discharge from St. Barnabas until the present. He stated petitioner’s current diagnosis was major depression with anxiety, for which he prescribed Depakote ER and Remeron, taken daily, and Trazodone, taken as needed. Dr. Abenante advised petitioner tolerated the medications well, his moods had been stable, and in his medical opinion, his illness had “substantially improved” since his hospitalization. Further, he opined petitioner was not a threat “to himself or anybody else” and he saw no impediment to his ownership of a firearm. The court began questioning Dr. Abenante about the January 2009 incident, which led to petitioner’s commitment. Specifically, the court inquired: [THE COURT]: If a person uses a weapon to lead others to believe that [he’s] going to use the weapon to hurt [him]self, do you think that that would place the patient in a position —   [Dr. Abenante]: Well, if he said he was going to use the gun, . . . then there’s a possibility, yes, because then that’s directly involved. But I don’t think he said that he was going to use a gun.   Q: Do you think that if he attempted to have [an]other believe that he would use the gun but did not verbalize, “I’m going to use the gun,” that then he poses no threat to himself or others?   A: . . . Remember a lot of people when they’re very depressed . . . say things that [are] not necessarily . . . directly what they would do, meaning they’ll say that they can’t live or they don’t know [how] they’re going to live, and that’s sometimes an assumption that they’re suicidal, but that doesn’t mean that . . . that person is going to . . . do anything. A lot of times it’s just because they’re distraught, they’re depressed, they don’t know how to handle the situation, they’re in a very big bind, they’ve been told something they didn’t want to hear. But sometimes . . . they just say things . . . out of impulse versus out of thought.   Petitioner’s counsel asked Dr. Abenante whether a person that may have been considered a threat two years ago “could recover to the point where they are no longer a threat presently.” Dr. Abenante responded affirmatively, explaining “most people when they say things spur of the moment” will, over the course of time and treatment, “solve their issues, they solve their problems, and those things are no longer a threat.” The trial judge rendered his findings, including crediting the petitioner’s testimony stating he was “impressed by [petitioner’s] candor” and finding petitioner “was extremely forthcoming, that he did not try to deceive the Court in any way, did not try to be vague or evasive, didn’t try to color the facts and the circumstances to his own advantage.” Nevertheless, the judge denied petitioner’s application, ruling: The issue before this [c]ourt is not whether or not this plaintiff is entitled to carry firearms or whether it’s appropriate for him to maintain and obtain firearms identification cards or whatever other government review would be required for him to obtain and utilize firearms. The issue before this [c]ourt is whether or not if that attempt is made or whether or not any other person who is inquiring into his past medical history should be prevented from seeing the entire picture. It is a heavy consideration in the [c]ourt’s mind that this incident took place some twenty months ago, that it is a very recent history. The [c]ourt is pleased to see that he has made substantial improvement. It gives the [c]ourt pause, however, to attempt to prevent reviewing parties the opportunity to see past the medical history . . . .   The [c]ourt finds that the recen[t] nature of the hospitalization [is] germane to reviewing agencies and Judges. The Court doesn’t express any opinion as to whether or not it would be appropriate for any agency or [c]ourt in the future to grant or deny an application for a firearms permit, and this [c]ourt is not called upon to do so. But the [c]ourt does find that it would be a miscarriage of justice to prevent any reviewing agency or [c]ourt the opportunity to review these records and come to their own conclusion based upon the entire past history and the appropriate parameters that would be in place at that time. The [c]ourt finds that it would deny those reviewing parties the opportunity to make a fully informed determination on all of the factors that would be appropriate for their consideration.   The court entered an order on October 15, 2010, denying petitioner’s application to expunge the records of his mental health commitment. On appeal, petitioner argues the court erred in applying the wrong standard of review and in failing to conclude he properly proved all requirements for expungement under N.J.S.A. 30:4-80.8. The Legislature has established the standard under which a judge may order the expungement of medical records. The statute states: Any person who has been, or shall be, committed to any institution or facility providing mental health services, or has been determined to be a danger to himself, others, or property, or determined to be an incapacitated individual as defined in N.J.S.[A.] 3B:1-2, by order of any court or by voluntary commitment and who was, or shall be, discharged from such institution or facility as recovered, or whose illness upon discharge, or subsequent to discharge or determination, is substantially improved or in substantial remission, may apply to the court by which such commitment was made, or to the Superior Court by verified petition setting forth the facts and praying for the relief provided for in this act. [N.J.S.A. 30:4-80.8 (emphasis added).] In considering a petitioner’s request for expungement, a court must hear evidence as to: the circumstances of why the commitment or determination was imposed upon the petitioner, the petitioner’s mental health record and criminal history, and the petitioner’s reputation in the community. If the court finds that the petitioner will not likely act in a manner dangerous to the public safety and finds that the grant of relief is not contrary to the public interest, the court shall grant such relief for which the petitioner has applied and, an order directing the clerk of the court to expunge such commitment from the records of the court.   [N.J.S.A. 30:4-80.9.]

Once records concerning a commitment are ordered expunged, “the commitment shall be deemed not to have occurred and the petitioner may answer accordingly any question relating to its occurrence.” N.J.S.A. 30:4-80.11. Finally, the petitioner has the burden of showing his or her entitlement to relief under that statute even when the petition is unopposed. The Supreme Court has not had occasion to comment on these statutory provisions and we have located no reported appellate authority governing the issue. Because we are requested to discern whether petitioner has met his burden under the statute, we start by reciting well established rules governing statutory interpretation. A court’s primary goal when interpreting a statute is to determine the Legislature’s intent. O’Connell v. State, 171 N.J. 484, 488 (2002). “‘We ascribe to the statutory words their ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as a whole.'” Am. Fire & Cas. Co. v. N.J. Div. of Tax., 189 N.J. 65, 79 (2006) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). See also Matter of Vacancies in Municipal Government of Rutherford,140 N.J. Super. 328, 336 (Law Div. 1976) (“[I]n construing statutes the court must look to the overall intent and purpose of the law.”). When examining the plain language of the statute, we assign common law definitions of otherwise undefined statutory terms. We will not add “‘an additional qualification which the Legislature pointedly omitted in drafting its own enactment, or engage in conjecture or surmise which will circumvent the plain meaning of the act. Our duty is to construe and apply the statute as enacted.'” Am. Fire & Cas., supra, 189 N.J. at 79 (quoting DiProspero, supra, 183 N.J. at 492). Further, “statutes must be read in their entirety; each part or section should be construed in connection with every other part or section to provide a harmonious whole.” Bedford v. Riello, 195 N.J. 210, 224 (2008). However, if in reviewing the statute’s plain meaning, the statutory language is ambiguous, there is more than one plausible interpretation, or the possibility of an absurd result, we look to extrinsic evidence, including the legislative history of the statute. Burnett v. Cnty. of Bergen, 198 N.J. 408, 421 (2009). Turning to the statute, we note the Legislature’s enactment returns a petitioner to the same position he or she would have been before hospitalization. Thus, the underlying intent seeks “to eliminate any stigmas that might attach to a person who was committed to a psychiatric hospital[,]” In re H.H., 151 N.J. Super. 372, 375 (Juv. & Dom. Rel. 1977), with an eye “toward eliminating to the greatest possible extent petitioner’s exposure to discrimination.” In re D.G., 162 N.J. Super. 404, 408-09 (Juv. & Dom. Rel. 1977). The trial court’s opinion appeared to ignore the provisions of the statute. Indeed, the trial judge found petitioner had made “substantial improvement[,]” but suggested expungements were appropriate only when the medical records would be a source of “embarrassment,” and their content “would not impact” the decision to be made by a court or agency. Finding petitioner had not met this standard, the judge stated the nature of petitioner’s treatment was “germane to reviewing agencies and [j]udges, who may review a subsequent application by petitioner for a firearms identification card or a permit to carry a weapon.” Additionally, the trial judge engrafted a time element into the statute, suggesting the incident occurred “some twenty months ago” and was “very recent history” such that reviewing parties should not be denied the opportunity to view petitioner’s medical treatment. Neither of these provisions can be found within the parameters of the Legislative enactment. If the trial judge intended these statements to suggest petitioner was “dangerous to the public safety,” we identify no facts undergirding such a conclusion. Here, petitioner has provided evidence to establish he voluntarily entered a mental health facility seeking treatment for depression, experiencing situational stress resulting from a failed marriage. Petitioner’s conduct and comments to his estranged wife intimated he might cause harm to himself. However, he voluntarily sought treatment and was discharged after approximately one week. He diligently pursued outpatient care, then maintained treatment with a psychiatrist and properly followed his prescribed medication regime. His treating doctor affirmed petitioner had substantially improved. The record reflects that petitioner, over the almost two-year period since his hospitalization, was functioning normally without any additional suicidal ideations. Moreover, he never displayed conduct harmful to others. During the hearing, there was no sign suggesting petitioner was withdrawn, unsound, or threatening. In fact, all indicia pointed to his recovery, with the symptoms of his illness abated by medication. The concern identified by Dr. Trigiani’s uncertified correspondence, regarding petitioner’s ability to deny he was hospitalized on a future application for a firearms identification card or permit to carry a weapon clearly impacted the trial judge, evinced by his comments and examination of petitioner and Dr. Abenante. Again, any facts showing a petitioner will “act in a manner dangerous to the public safety” or “contrary to the public interest,” could support denial of an expungement petition. However, the denial of expungement premised upon a possible future weapons application is erroneous. It is correct that an application for a handgun purchase permit or firearms purchaser identification card may be denied [t]o any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms, to any person who has ever been confined for a mental disorder, or to any alcoholic unless any of the foregoing persons produces a certificate of a medical doctor or psychiatrist licensed in New Jersey, or other satisfactory proof, that he is no longer suffering from that particular disability in such a manner that would interfere with or handicap him in the handling of firearms; to any person who knowingly falsifies any information on the application form for a handgun purchase permit or firearms purchaser identification card[.]   [N.J.S.A. 2C:58-3c(3).]   However, the extent of the necessary disclosures in this regard extends beyond hospitalizations, the subject of expungement under N.J.S.A. 30:4-80.8. The permit application itself asks not only whether an applicant “has ever been confined or committed to a mental institution or hospital for treatment or observation of a mental or psychiatric condition on a temporary, interim or permanent basis,” but also “whether [an applicant] has been attended, treated or observed by any doctor or psychiatrist or at any hospital or mental institution on an inpatient or outpatient basis for any mental or psychiatric condition, giving the name and location of the doctor, psychiatrist, hospital or institution and the dates of such[.]” N.J.S.A. 2C:58-3e. Therefore, even if petitioner’s commitments were expunged, these inquiries require disclosure of all post-hospitalization psychiatric treatment and the prescribed medication regime, affording full consideration of any mental health concerns that would preclude licensure.¹ We conclude the trial court’s review was deficient as it failed to comply with the requisites of the statute. Accordingly, we reverse the October 15, 2010 order and remand the matter for consideration by a different Law Division judge, who may choose to supplement the record as necessary. Our review obviates the necessity to address petitioner’s second argument that the trial court’s denial of his application puts New Jersey at risk of losing the federal funding it receives pursuant to the National Instant Criminal Background Check System (NICS) Improvement Act of 2007, § 103(c), Pub. L. No 110-180, 121 Stat. 2559(codified as amended at 18 U.S.C.A. § 922).² Reversed and remanded for reassignment for a new hearing.

1 The disclosures regarding mental health treatment identified by N.J.S.A. 2C:58-3e, are mirrored in questions twenty-four and twenty-six of the “State of New Jersey Application for Firearms Purchaser Identification Card and/or Handgun Purchase Permit,” which is found at http://www. njsp.org/info/pdf/firearms/sts-033.pdf (last checked on January 30, 2012). See also In re J.D., 407 N.J. Super. 317, 320 (Law Div. 2009).