In re E.C. Petition for Expungement

Appellate Docket No.: A-3713-13T2

Decided July 8, 2015

Submitted by New Jersey New Jersey Criminal Lawyer, Jeffrey Hark

In an unpublished opinion, the Appellate Division of New Jersey reviewed the requirements for the expungement of mental health records and produced a legal standard for same.

In E.C., E.C. was a child victim of sexual abuse. Apparently, as a result of that abuse, E.C. was troubled as a teenager by what he described as “feelings of extreme inward anger,” which were “solely aimed towards . . . the perpetrator . . . .” One of his teachers was concerned that E.C. was going to harm himself.

In February 1989, when E.C. was sixteen years old, he requested voluntary admission to Fair Oaks Hospital in Summit. He did so at the urging of his parents. E.C. executed a “Request for Voluntary Admission of a Minor Fourteen Years of Age or Older (Pursuant to R. 4:74-7).” He stated on the form, “I was told if I didn’t sign in on my own then I would be forced. I’ve been feeling 3 extreme anger and I’d like to know why.”

E.C. participated in group and individual therapy to come to terms with his emotions. He successfully completed treatment and was discharged about two months after admission. E.C. continued therapy on an outpatient basis in 1990. Since then, he explained, “My anger issues have been under control and I have moved on.”

E.C. graduated from high school in 1991. He completed nursing school in 1996, and earned a B.S. in nursing in 2005. He became a registered professional nurse in New Jersey in 1996, and in Colorado in 1999, where he has worked as a nurse since January 2000. E.C. stated he moved to Colorado because of the “mountains, the hunting, the fishing. It has everything I want.” E.C.’s curriculum vitae reflects a distinguished professional career. He has attained leadership positions in professional associations; has served as a teacher of nursing; and has received numerous service awards. E.C. has never been arrested, and states that he has neither sought nor needed mental health treatment since his teens.

In 2013 or thereafter, E.C. attempted to purchase a firearm in Colorado. He asserted that he was unable to complete the purchase because, in February 2013, New Jersey reported his 1989 voluntary admission, apparently treating it as a commitment, for inclusion in the National Instant Criminal Background Check System (NICS).

In January 2014, E.C. filed a verified complaint pursuant to N.J.S.A. 30:4-80.8, seeking expungement of his voluntary admission record, which he characterized as a civil commitment. Although the trial judge lauded E.C. for his professional and personal accomplishments, the judge did not explicitly find that E.C. was not a danger to the public safety, and relief was “not contrary to the public interest.” Moreover, given E.C.’s desire to obtain a firearm, the judge determined that it was appropriate to limit the expungement.

In a subsequent order, the trial court directed that ” [a]ll records related to the March 17, 1989 Order of Commitment . . . and all records of medical treatment provided in connection with the Order of Commitment are hereby expunged.” The court ordered the clerk to expunge the commitment order from the court’s records. However, the court added: “This expungement order shall not apply to applications for a firearms identification card and/or permits to purchase, possess or carry a firearm. As such, [E.C.] must divulge this civil commitment on any application for a firearms identification card and/or a permit to possess, purchase or carry a firearm.”

Petitioner appealed, arguing the added restrictions were an abuse of discretion. The Appellate Division agreed, finding that the statute in no way supporting adding the restrictions imposed by the Judge, and only required the expungement of the mental health records upon finding that petitioner was discharged from care and fully recovered or in substantial remission, and that the approving of the application was not contrary to public interest.  The appellate division reversed and remanded for the judge to review the record in light of those legal principles.

N.J.S.A. 30:4- 80.8 to -80.11 authorize a court to order the expungement of court records of mental health commitments.  Relief is available to three categories of persons: (1) “[a]ny person who has been, or shall be, committed to any institution or facility providing *9 mental health services; (2) any person who “has been determined to be a danger to himself, others, or property”; and (3) any person who has been “determined to be an incapacitated individual as defined in N.J.S.[A.] 3B:1-2.” N.J.S.A. 30:4-80.8. The commitment or determinations shall be “by order of any court or by voluntary commitment.”

In order to qualify for relief, the statute requires that the petitioner “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 Ibid. The petitioner may apply to “the court by which such commitment was made, or to the Superior Court by verified petition.” Ibid.

Upon the filing of a petition, the court shall schedule a hearing upon notice to two parties: (1) the county adjuster, and (2) either the medical director of the place where the person was committed or “upon the party or parties who applied for the determination that the person be found 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 . . . .” N.J.S.A. 30:4-80.9

At the hearing, the court shall consider evidence regarding “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.” Ibid. The statute requires the court to make two-pronged findings as to the petitioner’s dangerousness and the impact of relief on the public interest: If the court finds that (1) the petitioner will not likely act in a manner dangerous to the public safety and finds that (2) the grant of relief is not contrary to the public interest, the application to expunge will be granted.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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