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In Re M.L.

February 8, 2012

IN RE M.L., PETITIONER FOR EXPUNGEMENT.


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2127-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 8, 2011

Before Judges R. B. Coleman and Lihotz.

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. ...


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