IN RE PETITION OF J.E.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5113-04T25113-04T2

IN RE J.E.M.,

PETITIONER FOR EXPUNGEMENT.

_______________________________________

 

Submitted March 27, 2006 - Decided April 18, 2006

Before Judges Fall and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MON-L-2962-04.

Evan F. Nappen, attorney for appellant (Richard V. Gilbert, of counsel and on the brief).

No other briefs were filed in this matter.

PER CURIAM

Petitioner J.E.M. appeals from an order entered by Judge Joseph P. Quinn on May 2, 2005 denying his petition for expungement of certain medical records. We affirm.

The record before the trial court discloses the following. On or around March 13, 2001, petitioner was admitted to the emergency room at Riverview Medical Center in Red Bank, New Jersey. Petitioner was 18 years old at the time and he was brought to the hospital after he overdosed on nine Prozac capsules. The intake form indicates that petitioner did not intend to take his own life; rather, he reported that he wanted to prevent himself from taking his aggressions out on others.

The hospital's records indicate that petitioner was examined by Stephen Theccanat, M.D. (Theccanat). According to Theccanat's report, petitioner had been treated at a facility called Princeton House for abusing marijuana. Petitioner reported that he had tried heroin four or five times, tried cocaine several times, had been using liquid acid twice a month for about a year, and had been smoking marijuana almost on a daily basis since he was fourteen or fifteen years of age. In addition, the records note that petitioner had been seeing a psychiatrist for a year and a half and had last seen the doctor two weeks prior to his hospitalization. Petitioner also had been seeing a therapist for about two years prior to his hospitalization. His last visit to the therapist was March 10, 2001. Petitioner had been on Prozac since December 2000.

Theccanat diagnosed petitioner as having bipolar disorder and marijuana abuse, in remission. He noted in his report that he had discussed certain medications with petitioner and petitioner agreed to try Depakote at a dose of 500 mg three times a day. Theccanat stated that petitioner will participate in "milieu therapy" to provide him with more insight into the illness and better "coping skills." Theccanat wrote that, after petitioner is stabilized he will be discharged for outpatient follow up. He estimated that petitioner would be in the hospital for three to five days.

Petitioner was discharged on March 16, 2001. The discharge summary was prepared by Stephen Burns, M.D. (Burns), who wrote that petitioner had been started on the Depakote. Petitioner was not depressed or psychotic. He had no active suicidal or homicidal thoughts or plans. Burns stated that petitioner was stable and could be managed safely on an outpatient basis. Burns noted that the plan was for petitioner to see his therapist on a weekly basis and his mother would arrange for petitioner to see another psychiatrist for medication management.

On May 7, 2004, petitioner filed his application for expungement of the medical records pertaining to his "commitment" at Riverview pursuant to N.J.S.A. 30:4-80.8. Petittioner alleged that after his discharge from Riverview, he had "substantially improved and maintained" himself since in a "positive, productive manner." He also stated that he had not been committed to any institution or facility providing mental health services since his discharge from Riverview and his "commitment" there did not result from a determination that he was guilty of a crime by reason of insanity or from a determination that he was incompetent to stand trial.

In support of his application, petitioner submitted a "clinical/forensic psychological report" from Anthony Todaro, Ph.D. (Todaro), who is board certified in clinical psychology and psychopharmacology. In his report, Todaro stated that petitioner sought his report because he wanted to expunge the records of his hospitalization at Riverview so that he could obtain a gun permit for a rifle or shotgun. Petitioner told Todaro that he was admitted to Riverview for a two-day period "during a transient depressive episode." Petitioner reported that he had seen a couple of psychiatrists because of his mother's concern. He told Todaro that he was not suicidal or homicidal. Todaro diagnosed major depression in full remission and mild narcissistic personality features.

Todaro noted, however, that he had not seen the records from Riverview but he found that petitioner is "functioning exceptionally well" and "his placement at Riverview was undoubtedly at the request of his mother who was very concerned about him...." Todaro opined that petitioner meets the criteria for expungement and "is definitely safe in handling firearms."

By letter dated November 15, 2004, Judge Quinn informed petitioner that Todaro would be required to testify in the matter. In a letter dated December 6, 2004, petitioner's attorney stated that his client would not be able "to fund" Todaro's testimony. Counsel stated that Todaro would be willing to provide a supplementary report because Todaro had reviewed the Riverview medical records. The judge responded in a letter dated December 10, 2004 and stated that a supplementary report would not be satisfactory and testimony was required.

The judge entered an order on March 17, 2005 scheduling the matter for a hearing on May 2, 2005. He directed that the order and a copy of petition be served upon the Division of Mental Health Services, the County Adjuster for the County of Monmouth and the Medical Director of Riverview Medical Center. The judge noted on the order that he would determine after hearing testimony from petitioner's expert whether to order review of the matter by a court-appointed medical expert.

The judge conducted the hearing on May 2, 2005. Todaro testified and he was asked whether, to a reasonable degree of psychological certainty, petitioner's illness had substantially improved or was in substantial remission. Todaro said that petitioner "seems to have made significant strides." Petitioner looked like he was doing "reasonably well." Todaro said that he had not observed any suicidal ideation, nor was he aware of any depression. Todaro asserted that Prozac can trigger "a bipolar type of response," which might account for the prior diagnosis.

Todaro noted that the Riverview records indicated that petitioner had been treated at Princeton House but Todaro had not seen those records and he did not make any mention of the treatment in his report. The judge commented that, in his report, Todaro stated that petitioner reported no suicidal or homicidal thoughts. Todaro conceded, however, that the Riverview records reflect a concern about possible suicidal ideation, which was eventually ruled out.

In addition, the judge noted that petitioner told Todaro that he had been seen by some psychiatrists but he did not inform Todaro that he treated for two years. The judge also asked Todaro if petitioner had been treated after his discharge from Riverview. Todaro stated that petitioner was supposed to see a therapist and follow up with a physician for medication management. Todaro said that he was not privy to any records concerning follow up treatment.

Petitioner also testified at the hearing. He said that he was 22 years old and he was working for the Rumson Department of Public Works. Petitioner stated that he was admitted to Riverview because his mother was concerned about medication he was taking and thought there was something "mentally wrong" with him. Petitioner said that he took "a couple extra Prozac pills." He testified that he was on Depakote for about a week after he left Riverview. He stated that he did not see any psychiatrists or psychologists after his stay at Riverview. He said that, after he left the hospital, he was "fine." Petitioner asserted that he had attended Brookdale Community College and studied criminal justice. He attended college for two years and dropped out but he planned to go back.

Following the hearing, Judge Quinn placed his decision on the record. The judge found that petitioner had not met his burden of showing that the illness for which he had been treated at Riverview "is substantially improved or in substantial remission." N.J.S.A. 30:4-80.8. The judge noted that Todaro had written his report without the benefit of the records of petitioner's treatment at Riverview and those records indicated that petitioner had previously been treated for substance abuse at Princeton House. The judge also noted that Todaro stated in his report that petitioner used alcohol and marijuana occasionally but the report did not fully reflect petitioner's prior substance abuse.

The judge found that petitioner had not been candid with Todaro in discussing his prior psychological problems or his history of drug use. The judge stated that Todaro testified that petitioner had been hospitalized because of his mother's concern that her son had been "acting out" but the records reflected a "much more serious condition." In this regard, the judge found that petitioner had been seeing a therapist for two years prior to his admission to Riverview. The hospital records also indicated that petitioner had a history of self mutilization. The judge found that Todaro did not appreciate the significance of this history.

The judge additionally stated that he was troubled by the fact that Todaro had not reviewed the medical records of any licensed health care professional for the period after petitioner was discharged from Riverview. The judge noted that petitioner had been diagnosed at Riverview with bipolar disorder and Depakote had been prescribed. According to the discharge summary, petitioner was supposed to follow up with a therapist and see a doctor for medication management. Petitioner testified, however, that he did not see any health care professional after discharge. The judge found this "very troublesome." He added, "And I am particularly concerned that where we have a [psychiatric] hospitalization with a diagnosis of bipolar disorder, that I have no mental health professional commenting on the lack of medication or the appropriateness of the bipolar disorder diagnoses."

The judge concluded that he could not make a finding that petitioner's illness had "substantially improved or [was] in substantial remission." He added:

I'm not satisfied that [petitioner] has met the criteria under the statute. Coping on a daily basis is not the same as being either substantially improved or in remission, particularly where you have a diagnosis of a bipolar disorder. And an indication from the only medical doctor who I have anything from contained in the hospital records that he should be on medication for his bipolar disorder.

The fact that [petitioner] has not acted out over the recent past is commendable, but not the basis for an expungement under the terms and conditions of the statute.

Clearly, [Todaro] was retained to render a report in this case and has not been providing treatment to [petitioner]. And many of his answers were qualified with the clauses to the best of my knowledge and as far as I know.

And as I've indicated I think that. . . [Todaro] had none of these records at the time he rendered his February report saying it's okay for the records to be expunged and this young man [could] handle firearms.

My review of the hospital records demonstrates a substantially more serious psychiatric problem[] with [petitioner] than are referenced in [Todaro's] testimony here today.

The judge entered his order denying the petition on May 2, 2005 and this appeal followed.

Petitioner argues that it is "unrebutted" that he qualifies under the statute for the expungement of his medical records and the judge's decision is against the weight of the evidence. Petitioner contends that the judge required a "presentation" over and above the burden required by the statute in order to obtain expungement of the records. Petitioner also argues that the judge acted as his own expert witness in this case. We reject these contentions and affirm substantially for the reasons stated by Judge Quinn in his thorough and comprehensive decision on the record. We add the following.

The relevant statute provides that:

Any person who has been, or shall be, committed, by order of any court or by voluntary commitment, to any institution or facility providing mental health services and who was, or shall be, discharged from such institution or facility as recovered, or whose illness upon discharge, or subsequent thereto, is substantially improved or in substantial remission, may apply to the court by which such commitment was made, or, if voluntarily committed, 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.]

We note that that the record does not establish that petitioner was ever "committed" to Riverview by court order or even that his treatment there was the result of a "voluntary commitment." Even assuming that the statute allows for the expungement of medical records in these circumstances, the record plainly supports the judge's determination that petitioner had not carried his burden of showing, by a prepondernance of credible evidence, that the illness for which he was confined "is substantially improved or in substantial remission." Ibid.

The judge here was not compelled to grant the relief sought here merely because no objection to the petition had been filed. The statute establishes the standard under which a judge may order the expungement of medical records. Clearly, petitioner has the burden of showing his entitlement to relief under that statute even when the petition is unopposed.

Furthermore, the judge had the discretion to require petitioner's expert to testify where, as here, a review of the expert's report indicated that the expert rendered the report without even seeing the very hospital records for which expungement was sought. In addition, the judge was not required to accept the expert's opinions. As fact finder, the judge was free to reject all or a part of the expert's testimony and was entitled to give the testimony such weight as he deems appropriate. Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001)(citing Todd v. Sheridan, 268 N.J. Super. 387, 401 (App. Div. 1993)).

Here, Judge Quinn found that petitioner had not shown that the illness for which he was treated at Riverview is "substantially improved or in substantial remission." N.J.S.A. 30:4-80.8. The scope of our review of the judge's finding is strictly limited. The judge's findings are binding on appeal when they are supported by adequate, substantial and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We are convinced that there was ample support in the record for the judge's finding.

Affirmed.

 

Considering our discussion of petitioner's psychiatric treatment and history, we have deemed it appropriate to use initials to identify petitioner.

(continued)

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12

A-5113-04T2

RECORD IMPOUNDED

April 18, 2006