In a ruling by the Superior Court of New Jersey, Appeals Division, published on August 2, 2021, the court ruled that a parent’s recreational use of marijuana may not be the sole or primary reason to end that parent’s rights under Title 30 – one New Jersey law that addresses guardianship matters, including those related to substance abuse, unless the Department of Child Protection and Persistence (Department) also provides competent, case-specific evidence that marijuana use is health, safety, or well-being of the child at risk.

Although parental rights are fundamental and constitutionally protected, they are not absolute and are tempered by the responsibility of the state parens patriae (“mother of the people”) to protect the well-being of children when their physical or mental health is at risk. In New Jersey, the balance between parental rights and the state’s interest in the welfare of children is achieved through the best interests of the child – the four aspects are: (1) the child’s safety, health, or development has been or continues to be compromised by parenting ; (2) the parent is unwilling or unable to remedy the harm threatening the child or fail to provide the child with a safe and stable home, and the delay in permanent placement will exacerbate the harm; (3) the Department has made reasonable efforts to help the parent correct the circumstances that led to the child being placed outside the home and the court has considered alternatives to the dismissal; and (4) termination will do no more harm than good. Each of these prongs must be demonstrated by clear and convincing evidence to justify termination of parental rights, and termination should only be ordered if that is the least harmful and / or disadvantageous alternative.

Case overview

In the New Jersey Division of Child Protection and Permanency v. DH was removed from custody of the unmarried birth parents’ child immediately after birth (in February 2016) based on past drug abuse problems as well as the mother’s ongoing mental health problems leading to the premature termination of her parental rights of children she shared with another Person shared. However, two days after birth, the child was returned to parental care on the premise / understanding that the father would provide stability and supervision to offset the mother’s limitations. The child then lived with both parents for a year, but the mother’s substance abuse and mental health problems excluded her from the main upbringing.

The father then tested positive for marijuana, and the court lost confidence in his commitment to the conditions in which he returned the child – namely, his ability and willingness to monitor the mother’s contacts with the child for safety guarantee. In fact, the father admitted being a frequent marijuana smoker and on an unspecified number of occasions even smoked marijuana with the mother while he was looking after the child. The mother confirmed the same and also confirmed her own daily marijuana use. It was further revealed that after the child was born, the father refused to undergo drug tests and treatment, failed to appear for court-ordered examinations, and did not come up with a plan to care for the child alone without the mother. The mother also failed to meet her mental health and substance abuse obligations. Accordingly, the Chamber transferred the child to a temporary foster family and initiated dismissal proceedings.

During the trial, the department provided uncontested expert statements explaining the harm risks associated with marijuana use by parents, particularly while caring for their child. The court of first instance finally agreed and detailed in a well-founded 35-page statement how the chamber met its burdens with regard to all four termination criteria.

On appeal, the parents argued that the court had placed an inappropriate weight on their recreational marijuana use, which goes against public order, namely constitutional amendments and enabling laws recently passed through a public referendum that outlawed the use of non-medicinal marijuana in New Jersey legalized. The parents also argued that the department had not definitely met their burdens for considering a petition for involuntary termination of parental rights.

The appeals chamber upheld the local court’s annulment decision. Although the Court of Justice agreed that marijuana use alone cannot aid termination of parental rights per se, use coupled with knowledgeable evidence that marijuana use is dangerous to the health, safety or well-being of a child can result in termination of the child’s rights Support rights. The Court found that such possession was compatible with the use of other drugs (both legal and illegal).

In DH, it was completely undisputed that both parents used marijuana several times while actively watching their child. The court also found that the department’s expert made disproved statements about the risks of marijuana use by a parent while actively supervising / caring for their child, and that the court of first instance had substantial evidence, including the mother’s mental health problems and non-compliance The father prescribes the services of the department to support the determination with clear and convincing evidence that each of the four criteria for termination of parental right was met.

Take away key

Much like drinking alcohol or using other drugs, a parent’s basic right to care for their child is not necessarily violated by their choice to smoke marijuana. However, the best interests of the child dwarf basic parental rights, and those rights are forfeited if parental marijuana use is found to be a threat to the child’s health, safety and well-being.