Recreational Marijuana Use, Standing Alone, Cannot be the “Sole or Primary” Basis for Termination of Parental Rights Unless Use Endangers a Child

New Jersey Division of Child Protection and Permanency v. D.H., ___ N.J. Super. ___ (App. Div. 2021). This case comprised two related appeals. Two biological parents saw their parental rights to their five-year old son terminated by the Family Part under Title 30. The parents had admitted to the recreational use of marijuana. They appealed, contending that the Family Part had improperly held that use of marijuana use against them.

Speaking through Judge Sabatino, the Appellate Division held that “a parent’s status as a recreational marijuana user cannot suffice as the sole or primary reason to terminate that parent’s rights under Title 30, unless the Division [of Child Protection and Permanency] proves with competent, case-specific evidence that the marijuana usage endangers the child or children.” But the parents still lost the case. “[T]he parents each admitted they had used marijuana on several occasions while caring for their preschool child, and the Division presented unrebutted expert testimony explaining the risks of harm associated with that conduct. Beyond that, the trial judge had substantial other evidence to further support his finding that all four prongs for termination under N.J.S.A. 30:4C-15.1(a) had been proven by clear and convincing evidence. Hence, the judgment is affirmed.”

Judge Sabatino thoroughly outlined the standards for matters involving the termination of parental rights. Such rights are “constitutionally protected” but are “not absolute.” The State has “parens patriae responsibility to protect the welfare of children when their physical or mental health is jeopardized.”

N.J.S.A. 30:4C-15.1(a) sets out four criteria that constitute the calculus for termination of parental rights. Elaborating on the “best interests of the child” test, those criteria are:

“(1) The child’s safety, health, or development has been or will continue to be endangered by the parental relationship; (2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child; (3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child’s placement outside the home and the court has considered alternatives to termination of parental rights; and (4) Termination of parental rights will not do more harm than good.”

The Division is required to prove each of these prongs, which “overlap with one another,” by clear and convincing evidence. “”Presumptions of parental unfitness may not be used in proceedings challenging parental rights, and all doubts must be resolved against termination of [such] rights.” But appellate review of terminations of parental rights is “circumscribed,” and there is substantial deference to the Family Part’s expertise, its opportunity to observe the witnesses in person, and its “feel of the case.”

Expounding the lengthy facts and procedural history, Judge Sabatino concluded that the Division had satisfied each of the four statutory criteria. Thus, the panel’s ruling that recreational use of marijuana does not, by itself, justify termination of parental rights absent harm to a child, did not win the case for the parents.

Nonetheless, much of the opinion addresses the question of the effect of recreational marijuana usage. Judge Sabatino focused extensively on “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,” and legislation that followed that amendment. Those enactments posed a question of retroactivity, but Judge Sabatino found it unnecessary to resolve that question, since even before the constitutional amendment “case law under Title 30 has heretofore not applied a ‘per se’ approach deeming a parent unfit just because that parent has used unprescribed marijuana.” He then noted that “[t]he experience in other states is consistent with this non-categorical approach,” citing numerous statutes and cases from sister states.

The parents made two other arguments that the panel rejected. First, they contended that the judge who ruled, in the first of two trials, that parental rights should not be terminated, should have presided over the second trial, which led to this appeal and was decided adversely to the parents by a different judge. Judge Sabatino did not agree. There is no “absolute right” to have a particular judge re-try a case. Nor was it so, as the parents contended, that the second trial judge “was unfairly inattentive to the findings of the first trial judge.” The second judge allowed all the exhibits from the first trial to be admitted, and he was “clearly aware of his predecessor’s findings.” But there was “additional and different evidence that had been developed in the twenty-month interval between the trials,” so the second judge was free to reach a different result than the first judge had reached.

Second, the parents attacked as unreliable the testimony of the Division’s two experts about the effects of marijuana. Judge Sabatino rebuffed that argument. Even under the “reinforced gatekeeping requirements of In re Accutane, 234 N.J. 340 (2018),” the Division’s experts passed muster. The Family Part, in its discretion, admitted the testimony, and “[t]he bases for the expert assessments were reasonably explained and were not inadmissible ‘net opinions.'” Accordingly, the panel affirmed the Family Part.