New Jersey Division of Child Protection and Permanency v. D.H. and T.W. and J.K. and K.M.

New Jersey Division of Child Protection and Permanency v. D.H. and T.W. and J.K. and K.M.

These consolidated appeals concern a child, Dylan, who was born in February 2016 to Appellant D.H., the child’s father, and co-appellant T.W., the child's biological mother. The Family Part terminated the rights of defendant-parents after the most recent trial, and the parents appealed.

Dylan was initially subject to a Dodd removal from the hospital shortly after birth, principally because of concerns about the mother's fitness. The Division immediately filed a neglect action against the parents, however, Dylan was returned to the parents two days later, under the premise that the father would provide stability and oversight to compensate for the mother's limitations. From February 2016 through December 2016, Dylan lived with both parents. The Division then removed Dylan in December 2016. The mother had substance abuse and mental health issues throughout 2016 that disqualified her from primary parenting. What changed in December 2016 was that the court learned that the father had started testing positive for marijuana. The court lost confidence in the father's commitment to the conditions on which the court had returned the son after birth, namely, his ability and willingness to supervise the mother's contacts with Dylan to ensure the child's safety.

The father admitted to being a frequent smoker of marijuana and received a DSM-V diagnosis in 2019 of "severe cannabis use disorder." The father resisted drug testing and drug treatment recommended by the Division. He presented no plan to care for the child on his own without the mother. Like the father, the mother has frequently used marijuana for many years. She admitted to the Division's expert, Dr. Mark Singer, that she used marijuana, along with the father, while caring for the children.

On December 12, 2019, the trial judge issued a final order granting the Division's request to terminate the rights of both parents. In his initial brief on appeal, the father argued the trial court erred in relying on testimony of the Division's expert, Dr. Singer, criticizing his use of marijuana, and that as a matter of policy, that recreational marijuana use should not disqualify a person from serving as a parent.

After the merits briefs on appeal were filed, the legal landscape in New Jersey concerning recreational marijuana changed. In the general election held on November 3, 2020, the voters adopted a constitutional amendment effective as of January 1, 2021, that legalized the possession, consumption, and commercialization of cannabis and products containing it by persons twenty-one years of age or older. Statutory changes soon followed. On February 22, 2021, the Legislature enacted three bills to establish a broad regime of civil and criminal provisions to regulate the newly legalized activity and achieve the constitutional amendment's public policy goals.

One new set of provisions declared that positive screening test results for marijuana use may not be "the sole or primary basis" for Division action, but the Division may act "based on harm or risk of harm to a child," and it is free to cite evidence of positive test results. In addition, an amendment to N.J.S.A. 2C:35-5(b) declared that parental rights, and the right to assistance in support of keeping families together, shall not be infringed "solely by reason of committing" a first or subsequent offense of possessing one ounce or less of marijuana with prohibited intent.

Consistent with the soon-to-be effective new laws, the court held that a parent's recreational marijuana use cannot be the sole or principal basis for terminating that person's parental rights. Instead, the Division must demonstrate, by the clear and convincing evidence required under Title 30, that the parent's usage poses a risk of harm to the child or children to a degree that satisfies the first and second prongs of the termination criteria. The new statutory provisions codify and reinforce these long-recognized principles.

However, the court was satisfied that the trial court had substantial credible evidence to conclude that the Division established all four prongs of the termination criteria. Both parents admitted during their interviews that they had smoked marijuana on multiple occasions while the children were in their care.

The court recognized that the record does not show that Dylan was ever injured, abandoned, or that some other mishap occurred while one or both parents were in a marijuana-induced impaired state of mind. However, it is well established in Title 30 cases that actual harm to children need not occur and that the prospective risks of harm may suffice. This was not a case involving casual or occasional marijuana usage, but instead one in which the father has been diagnosed with a severe addiction, and the mother likewise had a long, documented history of substance abuse, coupled with her own persisting mental health issues.

Therefore, the judgment was affirmed.