NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.H., and T.W.,

Annotate this Case

(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1774-19
A-1857-20

NEW JERSEY DIVISION
OF CHILD PROTECTION APPROVED FOR PUBLICATION
AND PERMANENCY,
August 2, 2021

Plaintiff-Respondent, APPELLATE DIVISION

D.H., and T.W.,

Defendants-Appellants,

and

J.K., Jr., and K.M.,

Defendants.
_________________________

IN THE MATTER OF THE
GUARDIANSHIP OF D.H.,
T.G., and J.W., minors.
_________________________

Argued (A-1774-19) March 15, 2021 and
Submitted (A-1857-20) August 2, 2021 – Decided August 2, 2021

Before Judges Sabatino, Gooden Brown, and DeAlmeida.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County,
Docket No. FG-16-0048-19.
John A. Albright, Designated Counsel, argued the cause
for appellant D.H. (Joseph E. Krakora, Public
Defender, attorney; John A. Albright, on the briefs).

Joseph E. Krakora, Public Defender, attorney for
appellant T.W. (Adrienne Kalosieh, Assistant Deputy
Public Defender, of counsel and on the briefs).

Patricia O'Dowd, Deputy Attorney General, argued the
cause for respondent in A-1774-19 (Gurbir S. Grewal,
Attorney General, attorney; Jane C. Schuster, Assistant
Attorney General, of counsel; Patricia O'Dowd, on the
briefs).

Andrew Bruck, Acting Attorney General, attorney for
respondent in A-1857-20 (Jane C. Schuster, Acting
Assistant Attorney General, of counsel; Patricia
O'Dowd, Acting Deputy Attorney General, on the
brief).

David B. Valentin, Assistant Deputy Public Defender,
argued the cause for minor D.H. in A-1774-19 (Joseph
E. Krakora, Public Defender, attorney; Meredith Alexis
Pollock, Deputy Public Defender, of counsel; David B.
Valentin, of counsel and on the briefs).

Joseph E. Krakora, Public Defender, attorney for minor
D.H. in A-1857-20 (David B. Valentin, Assistant
Deputy Public Defender, on the brief).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

In these related appeals, which we consolidate for purposes of this

opinion, two biological parents argue the Family Part wrongfully terminated

2 A-1774-19
their parental rights to their five-year-old son under Title 30 after a guardianship

trial. Among other things, they contend the Division of Child Protection and

Permanency's ("DCPP's" or the "Division's") testifying expert and the trial judge

improperly weighed against them what the parents characterize as their

recreational use of marijuana.

To support this argument, the parents refer to the public policies that

underlie recently enacted statutes partially decriminalizing non-medicinal

marijuana usage in this State. Those statutes implement constitutional

provisions adopted by New Jersey voters through a ballot referendum last

November. The parents assert that, regardless of whether those new provisions

apply retroactively to this case tried in the fall of 2019, the Division failed to

meet its burden to establish by clear and convincing proof the four statutory

prongs necessary to enable the termination of their rights. Apart from the

marijuana issue, the parents contend there are ample other grounds to reverse

the Family Part judgment.

We hold 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 proves with competent, case-specific evidence that the

marijuana usage endangers the child or children.

3 A-1774-19
This approach aligns with existing Title 30 case law, the recently adopted

constitutional amendment partially decriminalizing non-medicinal marijuana

usage, N.J. Const. art. IV, § 7, ¶ 13, and related implementing statutes, as well

as child welfare cases from other states. The parties have not presented, and our

research has not revealed, any published child welfare case to date in which our

courts have strayed from such precepts.

In this case, the 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.

This case involves the application of familiar standards that govern the

termination of a parent's rights and related appellate review. We repeat them

here to frame our discussion.

The right "to raise one's children" is fundamental and thus constitutionally

protected. N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 599 (1986)

4 A-1774-19
(quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). Even so, although

parental rights are fundamental, they "are not absolute." In re Guardianship of

K.H.O., 161 N.J. 337, 347 (1999). They are "tempered by the State's parens

patriae responsibility to protect the welfare of children," ibid., "when their

physical or mental health is jeopardized." A.W., 103 N.J. at 599 (quoting

Parham v. J.R., 442 U.S. 584, 603 (1979)).

In New Jersey, "[t]he balance between parental rights and the State's

interest in the welfare of children is achieved through the best interests of the

child standard," which is noted in N.J.S.A. 30:4C-15(c) and elaborated in

N.J.S.A. 30:4C-15.1(a). K.H.O., 161 N.J. at 347-48. The four prongs under that

standard 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

5 A-1774-19
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.

[N.J.S.A. 30:4C-15.1(a).]

Those four prongs "are not discrete and separate; they relate to and overlap with

one another to provide a comprehensive standard that identifies a child's best

interests." K.H.O., 161 N.J. at 348.

New Jersey law requires the Division to prove each of the four statutory

prongs by clear and convincing evidence. A.W., 103 N.J. at 611-12. That

burden of proof accords with the Due Process Clause of the Fourteenth

Amendment of the United States Constitution, which permits termination of

parental rights only upon clear and convincing evidence. A.W., 103 N.J. at 611-

12 (citing Santosky v. Kramer, 455 U.S. 745, 753, 768-70 (1982)). Proof by

clear and convincing evidence requires the factfinder to have "a firm belief or

conviction as to the truth of the allegations sought to be established." Liberty

Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (citation omitted).

"Presumptions of parental unfitness may not be used in proceedings

challenging parental rights, and all doubts must be resolved against termination

of [such] rights." K.H.O., 161 N.J. at 347 (citations omitted). Termination

6 A-1774-19
should be ordered only when it is "the least harmful or least detrimental

alternative." A.W., 103 N.J. at 616 (citation omitted). That said, the court "need

not wait to act until a child is actually irreparably impaired by parental

inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

It is also well established that our appellate review of final judgments of

termination in Title 30 cases is circumscribed. In these non-jury matters, "the

trial court's factual findings 'should not be disturbed unless they are so wholly

unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H.,

172 N.J. 440, 472 (2002) (citations omitted). Those findings generally should

be upheld so long as they are supported by "adequate, substantial, and credible

evidence." N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014).

We give substantial deference to the trial judge's opportunity to have

observed the witnesses first-hand and to evaluate their credibility. Ibid. We

also bear in mind the considerable expertise of the Family Part, which repeatedly

adjudicates cases brought by the Division under Title 9 and Title 30 involving

the alleged abuse or neglect of children. See, e.g., N.J. Div. of Youth & Fam.

Servs. v. F.M., 211 N.J. 420, 448 (2012). Our general deference on appeal is

also informed by the Family Part judge's "feel of the case." N.J. Div. of Youth

& Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008).

7 A-1774-19
II.

With these general standards in mind, we recite an abbreviated summary

of this matter's factual background and procedural history. Although the record

is extensive, we need not detail it at length in order to address the salient issues.

Factual Background

These appeals concern a child, D.H. ("Dylan"), 1 who was born in February

2016. Appellant D.H. (the "father" or "David") is the biological father of Dylan,

and the child's biological mother is co-appellant T.W. (the "mother" or "Thea").

Thea is also the biological mother of three older children, A.G., T.G., and J.W.,

who are not the subject of this appeal. J.K., who was named as a co-defendant

in this case but did not participate, is the biological father of J.W. The Family

Part terminated the rights of all three defendant-parents after the most recent

trial, but only David and Thea have appealed.

The Division's involvement with these parents and their respective

children stems back to February 2013, when it brought neglect proceedings

1 Pursuant to Rule 1:38-3(d)(12), we use initials and pseudonyms to maintain
the privacy of the parties. Because the appellant-father's initials (D.H.) are the
same as his son's, we refer to appellant as "the father" or "David" and to the son
as "Dylan," using for ease of cross-reference the same pseudonyms used in the
Division's brief.

8 A-1774-19
against Thea, who was then living with her two eldest children, her own mother,

and two of Thea's siblings.

David and Thea began their relationship by April 2014. At that time, the

Division advised David that he could not take part in the care of Thea's children

unless he completed a background check that included a substance abuse

assessment.

The Division had concerns that David had a history of multiple criminal

charges dating back to 2009, which reportedly included robbery and aggravated

assault. David provided several initial urine specimens, which tested negative,

but an evaluator recommended a more extended drug use assessment.

Meanwhile, in September 2015, the Family Part approved a plan of termination

of Thea's parental rights to her older children because she had unresolved mental

health and substance abuse issues and had been non-compliant with court-

ordered services.

Dylan was born in February 2016. Dylan was initially subject to a Dodd

removal 2 from the hospital shortly after birth, principally because of concerns

about the mother's fitness. The Division immediately filed a neglect action

2
Legislation known as the "Dodd Act" authorizes the emergent removal of
children without court order pursuant to N.J.S.A. 9:6-8.29. N.J. Div. of Youth
& Fam. Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).

9 A-1774-19
against the parents seeking the custody, care, and supervision of Dylan.

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, who were assisted several hours per day by a child aide. The Division

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 Division placed Dylan in December 2016 in the home of a resource

mother who also had been caring for his older half-sister. Although the resource

mother at one time had expressed a desire to send Dylan elsewhere because he

was challenging, she thereafter felt closer to him and now wishes to adopt him.

Her bonding evaluation went favorably.

10 A-1774-19
Meanwhile, during the pendency of this litigation, the parents have had

periodic supervised visits with Dylan. They have attended most of the visitation

appointments but sometimes came late or cancelled. In one instance, the father

was seen getting angry and cursing about how others had cut Dylan's hair,

although the rest of the visits were apparently more peaceful.

As noted, the father has a criminal record which is not documented with

precision in our record. He acknowledges he served four years in jail on a seven-

year sentence.

The father admittedly is a frequent smoker of marijuana. He has received

a most-recent DSM-V diagnosis 3 in 2019 of "severe cannabis use disorder,"

which is unrebutted. He acknowledged, without much specificity, that he

smokes marijuana at parties with friends. He also admitted that, on an

unspecified number of occasions, he has smoked marijuana with the mother

while caring for the children.

3
See Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental
Disorders (5th ed. 2013) ("DSM-V"), Sections 304.30, 305.20 (enumerating
diagnostic criteria for various cannabis use disorders and other characteristics).
Among other things, the DSM-V states that "[p]eriodic cannabis use and
intoxication can negatively affect behavioral and cognitive functioning and thus
interfere with optimal performance at work or school, or place the individual at
increased physical risk when performing activities that could be physically
hazardous." Id. at 511. In addition, the DSM-V recognizes cannabis use "in the
presence of children, can adversely impact family functioning." Ibid.

11 A-1774-19
The father resists drug testing and drug treatment recommended by the

Division. He presented no plan to care for the child on his own without the

mother.

As already mentioned, the mother has a long history of mental health and

substance abuse issues, as diagnosed by multiple psychiatrists and

psychologists. Although she received outpatient substance abuse treatment, she

failed to complete it, allegedly due to scheduling problems, and did not continue

with at-home treatment after initial attempts. She failed to complete a

personality assessment inventory, did not complete several other programs

recommended by the Division, and failed to follow through on a number of

referrals.

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. She acknowledged to Dr.

Singer that she was using marijuana on a daily basis until May 2019. She has

been administered drug screens periodically, sometimes testing negative but at

other times testing positive, including nine dates between January and April

2019. According to Dr. Singer, the mother has used marijuana as a form of self-

medication.

12 A-1774-19
On the positive side, however, the mother has obtained a high school

diploma, has attended trade school, and has become a certified nursing assistant.

She has obtained employment and, as of July 2019, was working as a nursing

assistant six days a week.

During the parents' bonding evaluation with Dylan, he became aggressive

and had difficulty accepting redirection from the mother. By contrast, Dylan

did not engage in similar aggressive behavior during his bonding evaluation with

the resource mother.

Procedural History

The procedural history of this matter is extensive. The Division initially

filed a guardianship complaint in 2015 involving Thea's other children. That

initial complaint was dismissed, but then the Division filed a new complaint in

February 2017. In August 2017, the Division amended that guardianship

complaint to add Dylan and his father David as parties.

The guardianship case has been tried twice. The first trial occurred over

two days in February 2018. On March 14, 2018, the Family Part judge who

presided over that initial trial (the "first trial judge"), issued a final order

dismissing the complaint. The first trial judge found that the Division's proofs,

as marshalled at that time, did not suffice to meet the clear and convincing

13 A-1774-19
standard required for termination. The first trial judge found the Division had

not met its burden with respect to the four statutory criteria under Title 30.

Among other things, she found the Division had not presented evidence at trial

that the father "has ever or will ever use marijuana while caring for [Dylan]."

The judge also faulted the Division for not offering sufficient services, and she

also found the Division's bonding expert who testified at the first trial (who was

not Dr. Singer) lacked credibility. Although she declined to terminate the

parents' rights, the first trial judge did continue the Division's care and custody

over the children.

The Law Guardian, later joined by the Division, appealed the first trial

judge's denial of termination. Applying customary deferential standards of

review to the court's fact-finding, we affirmed the first trial judge's decision in

an unpublished opinion, N.J. Div. of Child Prot. & Permanency v. T.W., No. A-

3437-17 (App. Div. Aug. 16, 2019). Our opinion did not, however, foreclose

the Division from pursuing a new guardianship complaint against the parents if

new or additional facts were developed. T.W., slip op. at 15.

In March 2019, the Division filed such a new complaint. The complaint

alleged, among other things, that Thea had been non-compliant with mental

health and substance abuse services, and that David had failed to submit to court-

14 A-1774-19
ordered assessments and drug screens. Further extensive evaluations ensued. In

addition, the resource mother appeared before the court at a proceeding in April

2019, and expressed her frustrations about Dylan's unresolved status.

The termination case was tried a second time over five intermittent days

in the fall of 2019. The case was heard by a different Family Part judge (the

"second trial judge"), who had been presiding over several proceedings leading

up to the second trial. 4 This time, the Division presented a different expert

psychologist, Dr. Singer, who offered testimony about more recent evaluations

he had performed of the parents and the resource mother. The Division also

presented factual testimony from Philip Bradley, who had taken over as the

family's case manager after the first trial, and from an adoption case manager,

Pamela Santos, who was assigned to the matter in January 2019. Neither parent

testified or presented witnesses and both were absent for all or much of the trial.

On December 12, 2019, the second trial judge issued a final order granting

the Division's request to terminate the rights of both parents. On that same date,

the second trial judge issued a thirty-five-page written opinion with detailed

findings elaborating how the Division had met its burden, by clear and

convincing evidence, of all four criteria for termination. As part of the analysis,

4
The first trial judge was by that point in a different judicial assignment.

15 A-1774-19
the opinion relied upon the updated evidence presented by the Division, and

particularly Dr. Singer's expert testimony.

The judge specifically noted and accepted Dr. Singer's opinion that neither

parent is capable of safely caring for the children presently or again in the

foreseeable future. The judge found unpersuasive the father's contentions that

no safety concerns were noted for Dylan in 2016 because more recent documents

"showcase[d]" that as of April 2019, the father "has failed to engage in

recommended substance abuse programs, intake sessions, and counseling

services." Indeed, the judge noted that "[d]espite the biological parents being

involved with the Division, they have failed to meaningfully participate in any

services other than visitation." The judge also stressed that the older child, J.W.,

has been with her own resource parent for four of her six years, and Dylan has

been with his caregiver for most of his life. The judge found that "[p]ermanency

for the children is paramount to their care."

The present appeals followed. 5 In his briefs on appeal, the father raises

the following points:

5
As noted, the Family Part entered its final judgment and opinion terminating
the rights of both parents on December 12, 2019. The father filed a timely
appeal, extensive initial and supplemental briefing was submitted, and this court
heard oral argument on his appeal on March 15, 2021. That same day, the

16 A-1774-19
POINT I

THE LOWER COURT'S PRONG ONE
CONCLUSION THAT D.H. HARMED [DYLAN] OR
PLACED HIM IN ANY DANGER IS
UNSUPPORTED BY THE RECORD AND MUST BE
REVERSED, AS DCPP FAILED TO SATISFY THIS
STANDARD AT TRIAL IN 2018 AND PRESENTED
NO NEW EVIDENCE IN 2019 TO WARRANT
OVERTURNING THE FIRST TRIAL JUDGE'S
FINDING THAT DCPP NEVER PROVED ANY
BASIS FOR REMOVING THE CHILD IN THE FIRST
PLACE.

A. NO EVIDENCE ADDUCED AT
THE LAST TRIAL REVEALED THE
REASON FOR THE REMOVAL OF
[DYLAN] FROM D.H. IN THE FIRST
PLACE. SINCE THE REMOVAL WAS
IMPROVIDENT, SO TOO WAS
EVERYTHING THAT FOLLOWED.

mother very belatedly—more than one year after the final judgment—moved
before this court to file her own appeal as within time, contending she had told
her then-attorney in 2019 that she wanted an appeal filed on her behalf if she
lost at trial. Although the mother's motion was vigorously opposed by both the
Division and the Law Guardian because her appeal would further delay
permanency for the minor, we granted the motion on strict conditions. Those
conditions included an accelerated briefing schedule, page limitations (with the
ability of all counsel to incorporate by reference arguments from the father's
appeal), and waiver of further oral argument unless the court deemed it
necessary. In addition, we confined the mother's appeal to the minor D.H.,
denying her request to include other children of hers (J.W. and T.G.) parented
by other fathers, one of whom already has been adopted. The reader should not
infer from the court's exceptional indulgence of this extremely late appeal, filed
long past the forty-five-day deadline of Rule 2:4-1, that it would be equally
indulgent in other less compelling circumstances.

17 A-1774-19
B. THE LOWER COURT'S
CONCLUSION THAT D.H.'S
"SUBSTANCE ABUSE" HARMED
[DYLAN] OR PLACED HIM AT RISK IS
UNSUPPORTED BY SINGER'S NET
OPINION OR ANY OTHER EVIDENCE
IN THE RECORD.

C. THE LOWER COURT'S
CONCLUSION THAT D.H. SUFFERED
FROM AN UNSPECIFIED "MENTAL
HEALTH" ISSUE IS UNSUPPORTED
BY SINGER'S NET OPINION OR ANY
OTHER EVIDENCE IN THE RECORD.

POINT II

THE LOWER COURT'S CONCLUSION THAT D.H.
WAS UNWILLING OR UNABLE TO ELIMINATE
THE HARM FACING [DYLAN] IS UNSUPPORTED
BY THE RECORD AND MUST BE REVERSED; D.H.
SUCCESSFULLY PARENTED HIS SON FOR MOST
OF THE FIRST YEAR OF HIS LIFE (2016), AND
THERE WAS NO BASIS FOR THE REMOVAL.

POINT III

DCPP'S IMPROVIDENT REMOVAL OF [DYLAN]
FROM D.H. WAS PATENTLY UNREASONABLE,
AS WERE ALL OF ITS EFFORTS THEREAFTER,
WHICH WERE TRANSPARENTLY DESIGNED TO
KEEP [DYLAN] FROM HIS PARENTS IN FAVOR
OF A FOSTER PARENT WHO ASKED FOR THE
CHILD'S REMOVAL AND WENT ON VACATIONS
WITHOUT HIM.

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POINT IV

SINCE THE FOSTER PARENT DID NOT TESTIFY
AT TRIAL, NO EVIDENCE IN THE RECORD
SUPPORTS THE LOWER COURT'S CONCLUSION
THAT INDIVIDUAL IS "COMMITTED TO
ADOPTION" NECESSITATING REVERSAL OF ITS
PRONG FOUR CONCLUSION; THE RECORD
CONCLUSIVELY ESTABLISHES THE OPPOSITE
OF "COMMITMENT": AS OF MARCH 2019, THE
FOSTER PARENT DID NOT WANT [DYLAN].

POINT V

THE LOWER COURT'S EXCLUSION OF AND
REFUSAL TO CONSIDER THE RECORD OF THE
FIRST TRIAL CONSTITUTED A MANIFEST
ABUSE OF DISCRETION AND EXACERBATED
AN EGREGIOUS VIOLATION OF THE ONE
COURT/ONE FAMILY RULE REQUIRING
REVERSAL.

SUPPLEMENTAL POINT I

UNDER N.J. CONST. ART. IV, § VII, ¶ 13, D.H. HAS
A CONSTITUTIONAL RIGHT TO RECREATIONAL
MARIJUANA USE WHICH MUST APPLY
RETROACTIVELY, AND EXERCISE OF THAT
RIGHT COULD NOT BE A LEGITIMATE BASIS TO
TERMINATE PARENTAL RIGHTS NOW OR THEN.

In her related appeal, the mother joins in the arguments of the father, including

the marijuana issue. She also advances the following points:

THE COURT'S HOLDING THAT DCPP MET ITS
BURDEN UNDER N.J.S.A. 30:4C-15.1a AND THE

19 A-1774-19
JUDGMENT TERMINATING T.W.'S PARENTAL
RIGHTS TO [DYLAN] SHOULD BE REVERSED.

POINT I

THE JUDGMENT OF GUARDIANSHIP MUST BE
REVERSED AS DCPP'S EVIDENCE DID NOT
ESTABLISH PAST MENTAL HEALTH
CONDITIONS OR MARIJUANA USE PRESENTED
AN ONGOING HARM TO [DYLAN] PURSUANT TO
PRONGS ONE AND TWO.

POINT II

THE COURT ERRED IN HOLDING THAT DCPP
MET PRONG THREE BECAUSE IT DICTATED
T.W.'S "SERVICES" TO HER RATHER THAN
PARTNERED WITH HER TOWARD
REUNIFICATION.

POINT III

THE COURT ERRED IN FINDING THAT DCPP
MET ITS BURDEN AS TO PRONG FOUR BECAUSE
THERE WAS NO PARENTAL FAULT IN THE
FOSTER HOME'S ASSUMING THE DAILY
CARETAKING ROLE.

III.

We begin by briefly addressing the parents' contentions that the second

trial should have been assigned to and presided over by the first trial judge, and

20 A-1774-19
their related argument that the second trial judge should have afforded deference

to the first trial judge's findings. We reject these contentions.

The Rules of Court do not give the parties an enforceable entitlement to

have a specific judge preside over a second trial or a related proceeding. To be

sure, our Judiciary has observed a general practice, sometimes referred to as

"one family/one judge," of endeavoring, where practical, to have one judge

assigned to hear related Family Part matters. E.g., Administrative Directive

#14-17, "Co-Occurring Child Abuse and Domestic Violence — Operational

Guidance" at 4 (June 23, 2017) (presiding judge for a family's children-in-court

case should be assigned to new domestic violence case filed for same family

"where practical . . . in keeping with the one family/one judge principle").

However, that administrative practice is simply a preference and aspiration, and

it does not create any entitlement for litigants.

At times, our appellate courts have directed the assignment of related

Family Part cases on remand to the same judge, but without holding that doing

so was an absolute requirement. See, e.g., N.J. Div. of Youth & Fam. Servs. v.

K.M., 136 N.J. 546, 561 (1994); Div. of Youth & Fam. Servs. v. L.C., 346 N.J.

Super. 435, 439-40 (App. Div. 2002); O'Brien v. O'Brien, 259 N.J. Super. 402,

406 (App. Div. 1992); Salch v. Salch, 240 N.J. Super. 441, 444-45 (App. Div.

21 A-1774-19
1990). O'Brien cited a provision that was added to Rule 1:6-2(d) in 1992,

namely that "insofar as is practicable," subsequent motions should "be heard by

the same judge who heard the first motion in the cause." 259 N.J. Super. at 406.

The provision was deleted in 2000 for being "superfluous . . . in view of the

single-judge case management required by" Rule 4:5B-1. Pressler & Verniero,

Current N.J. Court Rules, History & Analysis of Rule Amendments to R. 1:6-2

(2021) (www.gannlaw.com).

Rule 4:5B-1 states that, "[i]n [civil] Track IV and general equity cases

. . . the designated managing judge shall, insofar as is practicable and absent

exceptional circumstances, also preside at trial." (Emphasis added). That Part

IV provision does not pertain here because this is a Family Part case governed

by the special rules for family matters set forth in Part V of the Rules. In any

event, Rule 4:5B-1 recognizes, in the language we have underscored, that it may

be impractical for a subsequent proceeding to be heard by the same judge who

presided over an earlier related proceeding involving the parties. This practical

exception to the general preference is vital in enabling the Assignment Judge

and Presiding Judges of each vicinage to utilize judicial resources in an optimal

manner, and in managing vacancies and case flows among the various dockets.

Moreover, the Judiciary has long endeavored, for various beneficial reasons, to

22 A-1774-19
rotate most Superior Court judges among various docket assignments during

their years of service in the trial court. Here, the first trial judge was no longer

assigned to the Children in Court docket in the vicinage when the second trial

occurred.

In addition, we reject the parents' claims that the second trial judge was

unfairly inattentive to the findings of the first trial judge. Although the second

trial judge declined to admit into evidence the first trial judge's transcribed oral

opinion, he was clearly aware of his predecessor's findings. The second trial

judge permitted the parties to admit exhibits that had earlier been presented at

the first trial, and the parties point to no actual evidence from the first trial that

was unfairly excluded at the second trial.

We are keenly aware that the second trial judge reached a different

conclusion about termination than the first trial judge. But the second trial judge

was provided with additional and different evidence that had been developed in

the twenty-month interval between the trials. The second judge was in no way

bound to reach the same decision as his predecessor, and his contrary outcome

reflects no lack of respect or due deference.

23 A-1774-19
B.

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. In particular, the father challenged Dr. Singer's opinion that he was

not a "viable parent" because of his "ongoing issue of substance abuse . . . using

unprescribed marijuana, [and] using a mind-altering substance while caring for

a child." The father argued Dr. Singer "failed to provide any explanation as to

how [his] purported marijuana use precluded him from viable parenting, [given

that] he had been ruled out for substance abuse in January of 2016, following an

'extended' substance abuse assessment."

Continuing with this theme, the father argued, as a matter of policy, that

recreational marijuana use should not disqualify a person from serving as a

parent. As the father asserted, if such a policy of disqualification were adopted

and followed, "the child welfare apparatus of those states that permit such use

would be quickly overrun." His brief then listed ten states in which both

recreational and medical marijuana use is legal, and twenty states, including

New Jersey, that have authorized the use of marijuana for medical purposes,

subject to certain terms and conditions. The father emphasized this point again

in his reply brief, arguing that Dr. Singer's "net opinions" reflected "untested

24 A-1774-19
presumptions" about marijuana usage that the Division failed to show were

based on a scientifically reliable methodology shared by others in the field.

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, but potentially "subject to regulation by the Cannabis

Regulatory Commission." N.J. Const. art. IV, § 7, ¶ 13 (the "amendment"). The

amendment reads as follows:

The growth, cultivation, processing, manufacturing,
preparing, packaging, transferring, and retail
purchasing and consumption of cannabis, or products
created from or which include cannabis, by persons 21
years of age or older, and not by persons under 21 years
of age, shall be lawful and subject to regulation by the
Cannabis Regulatory Commission created by P.L.2019,
c.153 (C.24:6I-5.1 et al.), or any successor to that
commission.

[Ibid.]

The amendment did not apply to cannabis and products containing it that are

"dispensed and consumed for medical purposes pursuant to any law enacted by

25 A-1774-19
the Legislature" and regulated thereunder, or to hemp or hemp products subject

to regulations adopted pursuant to other legislation. Ibid.

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. Those enacted bills are the "New Jersey

Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization

Act," L. 2021, c. 16 (enacting A. 21 (2020)) (codified in relevant part at N.J.S.A.

2C:35-5 to -10 and N.J.S.A. 24:6I-24) (the "first enactment"); the act

"concerning certain criminal and civil justice reforms," L. 2021, c. 19 (enacting

A. 1897 (2020)) (the "second enactment"); and the act "addressing certain

regulated substances, with a particular emphasis on possession or consumption

of various forms of cannabis." L. 2021, c. 25 (enacting A. 5342 (2021)) (the

"third enactment").

One new set of provisions relevant to this discussion, in section 47 of the

first enactment, was apparently only included in A. 21 and never in any version

of the other bills. Those provisions in section 47 declare that positive screening

test results for marijuana use may not be "the sole or primary basis" for Division

26 A-1774-19
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:

The presence of cannabinoid metabolites in the bodily
fluids of a person engaged in conduct [that is not
prohibited by this enactment]:
....

(3) with respect to a parent or legal
guardian of a child or newborn infant, or a
pregnant woman, shall not form the sole or
primary basis for any action or proceeding
by the Division of Child Protection and
Permanency, or any successor agencies;
provided, however, that nothing in this
paragraph shall preclude any action or
proceeding by the [D]ivision based on
harm or risk of harm to a child or the use
of information on the presence of
cannabinoid metabolites in the bodily
fluids of any person in any action or
proceeding.

[L. 2021, c. 16, § 47(b)(3) (emphasis added) (amending
N.J.S.A. 2C:35-10(a)(3)(b)(ii)).]

Section 47 is to "take effect immediately, but shall only become operative

upon adoption of the [Cannabis Regulatory C]ommission's initial rules and

regulations." L. 2021, c. 16, § 87(a)(2). The Commission was established in

2019 as part of other marijuana-related legislation and its members appointed in

November 2020. The first enactment retains the existing statutory specification

of the expertise that the five members of the Commission must have. L. 2021,

27 A-1774-19
c. 16, § 5 (amending N.J.S.A. 24:6I-24(b)(4) (originally enacted in L. 2019, c.

153, § 31)). The Commission's membership does not expressly need to include

expertise in child welfare.

Other new provisions relevant to this discussion, i.e., changes to N.J.S.A.

2C:35-5, were enacted both as section 55 of L. 2021, c. 16, and as the new

section 1 of L. 2021, c. 19. 6 The relevant language in those sections is identical.

More important here is an amendment to N.J.S.A. 2C:35-5(b), declaring

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:

A person shall not be deprived of any legal or civil
right, privilege, benefit, or opportunity provided
pursuant to any law solely by reason of committing a
violation of subparagraph (b) of paragraph (12) of this
subsection [i.e., possession of one ounce or less of
marijuana], nor shall committing one or more
violations modify any legal or civil right, privilege,
benefit, or opportunity provided pursuant to any law,
including, but not limited to, the granting, renewal,
forfeiture, or denial of a license, permit, or
certification, qualification for and the receipt,
alteration, continuation, or denial of any form of
financial assistance, housing assistance, or other social

6
They were also in the former "section 3" that was deleted from the final version
of A. 5342.

28 A-1774-19
services, rights of or custody by a biological parent, or
adoptive or foster parent, or other legal guardian of a
child or newborn infant, or pregnant woman, in any
action or proceeding by the Division of Child
Protection and Permanency . . . .

[L. 2021, c. 16, § 55 (amending N.J.S.A. 2C:35-
5(b)(12)(b)(ii)) (emphasis added).]

In light of these developments, we requested counsel to provide us with

supplemental briefs addressing their potential impact upon this case. The father

argues the constitutional amendment established a right to recreational use of

marijuana without legal repercussions, that it therefore bars any consideration

of parental recreational use in a termination case, and that the high degree of

constitutional protection afforded to parental rights compels retroactive

application of this ameliorative provision. He argues further that the amendment

is a repudiation of outdated prejudices about the abilities and intentions of

recreational marijuana users, including presumptions of parental unfitness, even

when an expert insists that they remain valid. The mother has incorporated these

and other related arguments by the father into her own position.

The Division, meanwhile, submits that the amendment and the related

legislation merely validate a standard that it followed in this case, which was to

act not solely on the fact that the parent used marijuana or some other intoxicant,

but rather to act when the use created an unsafe environment for the child. The

29 A-1774-19
Division argues the trial court did not err in accepting Dr. Singer's expert

testimony, and in relying upon his opinion that the parents' admitted marijuana

usage—particularly while caring for children—posed a risk of harm that bears

upon the termination analysis. The Division further questions whether the new

provisions should apply retroactively to this matter that was tried in the fall of

2019 before their enactment.

The Law Guardian argues the constitutional amendment and

implementing legislation mainly target the social injustice of the disparate

punishment of racial minorities for marijuana possession, and the resulting

social and economic inequities, by easing an excessive punishment regime. The

Law Guardian contends the new provisions do not fundamentally alter the child

welfare laws under which the Division provides protection and promotes family

rehabilitation. As asserted by the Law Guardian, our child welfare system

already strives to avoid disparities by acting only when there is a risk of harm

to the child, rather than on the basis of parental intoxicant use with nothing more.

It contends that here Dr. Singer established such risks of harm by explaining

how the parents' marijuana use imperiled Dylan.

Having considered these points, we conclude that we need not resolve in

this appeal issues of statutory retroactivity, because our case law under Title 30

30 A-1774-19
has heretofore not applied a "per se" approach deeming a parent unfit just

because that parent has used unprescribed marijuana. For example, in N.J.

Division of Youth & Family Services v. A.L., 213 N.J. 1, 22 (2013), our

Supreme Court instructed that the focus of child welfare cases must be on the

impact of a parent's substance abuse on the child, and whether that use precludes

safe parenting. "[N]ot all instances of drug ingestion by a parent will

substantiate a finding of abuse or neglect." N.J. Div. of Youth & Fam. Servs. v.

V.T., 423 N.J. Super. 320, 332 (App. Div. 2011); see also N.J. Div. of Child

Prot. & Permanency v. S.G., 448 N.J. Super. 135, 145-47 (App. Div. 2016)

(remanding a Title 30 termination case for additional testimony to develop more

clearly whether the parent's marijuana use and her boyfriend's drug dealing

occurring within the home could have been harmful to the children).

In this regard, our case law has recognized that the age of the child may

bear upon the risks posed by the parent's drug usage. Compare N.J. Div. of

Child Prot. & Permanency v. B.O., 438 N.J. Super. 373, 385 (App. Div. 2014)

(observing that parents who use drugs while caring for an infant can expose that

child to many dangers due to their impaired judgment), with V.T., 423 N.J.

Super. at 331 (noting that an eleven-year-old child, unlike an infant, was not

31 A-1774-19
vulnerable "to the slightest parental misstep" when visiting, in a Division-

supervised setting, her father, who tested positive for drugs).

Moreover, as the Law Guardian has submitted, smoked marijuana has not

generally been consumed in standardized doses, and the THC and cannabinoid

content of marijuana may depend on growing conditions and plant genetics.

David Malleis, Note and Comment, The High Price of Parenting High: Medical

Marijuana and Its Effects on Child Custody Matters, 33 Univ. La Verne L. Rev.

357, 379 (2012). Further, the actual amount of THC absorbed into the body can

vary greatly among different people. Ibid.

Our point is that, even as of the time the second trial occurred in late 2019

before the 2020 constitutional amendment and the 2021 implementing

legislation, the case law in our State has not historically treated a parent's usage

of marijuana, whether illegal or not, as a categorical basis for stripping that

defendant of his or her parental rights. Instead, we have looked to the case-

specific impacts the drug usage has or has not had on the child's care and safety.

That same contextual approach is embodied in the new statutory language.

By analogy, just because the Twenty-First Amendment of the United

States Constitution ended Prohibition, that does not entitle a parent to imbibe

alcoholic beverages in a manner that endangers children under that parent's care.

32 A-1774-19
See, e.g., N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 281-85

(2007) (recognizing that an otherwise-fit parent's refusal to separate from an

alcohol-addicted mother posed sufficient harm to the child to satisfy the first

two prongs of the termination criteria).

The experience in other states is consistent with this non-categorical

approach. Some states have legislated express provisions dealing with a parent's

legal recreational or medical marijuana use. Such codes generally provide that

parental rights may not be denied solely on the ground of legal marijuana use,

because harm or a risk of harm must be proved, and marijuana use by itself does

not support a presumption of neglect or endangerment. E.g., Ariz. Rev. Stat.

Ann. § 36-2813(D) (2021) (medical); Del. Code Ann. tit. 16, § 4905A(b) (2021)

(medical); 410 Ill. Comp. Stat. Ann. 130/40(b) (2021) (medical) and 410 Ill.

Comp. Stat. Ann. 705/10-30 (recreational); Me. Rev. Stat. Ann. tit. 22, § 2430-

C(4) (2020) (medical); Mich. Comp. Laws Ann. § 333.27955(3) (2021)

(recreational); Minn. Stat. Ann. § 152.32(3)(e) (2021) (medical); N.H. Rev. Stat.

Ann. § 126-X:2(VI) (2020) (medical); Wash. Rev. Code Ann. § 69.51 A. 120

(2021) (medical). In states without such a statutory provision, some courts

nonetheless have applied a similar distinction and found, in certain child welfare

cases, that a risk of harm from the parent's marijuana use had not been shown.

33 A-1774-19
E.g., In re T.B., 529 S.E.2d 620, 625-26 (Ga. Ct. App. 2000); C.M. v. Ind. Dep't

of Child Servs., 130 N.E.3d 1149, 1157 (Ind. Ct. App. 2019); In re M.S., 889 N.W.2d 675, 682-84 (Iowa Ct. App. 2016); In re K.M.A.-B., 493 S.W.3d 457,

469-71 (Mo. Ct. App. 2016); In re ATE, 222 P.3d 142, 147-48 (Wyo. 2009).

In keeping with these principles and consistent with the soon-to-be-

effective new laws, we hold 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.

With respect to appellants' contentions about expert methodology, we

recognize that our evidence rules in civil matters are now guided by the

reinforced gatekeeping requirements of In re Accutane, 234 N.J. 340 (2018).

See also N.J.R.E. 702. Even so, we are not persuaded that Dr. Singer in this

case lacked the credentials to provide the opinions he offered, or that his

methodology was manifestly unreliable. Defense counsel did not object to Dr.

Singer's qualifications and the trial judge deemed his testimony to be reliable.

34 A-1774-19
We likewise do not repudiate the trial court's consideration of the report of the

substance abuse evaluator who diagnosed the father in 2019 with severe

cannabis use disorder under the DSM-V criteria. The bases for the expert

assessments were reasonably explained and were not inadmissible "net

opinions." Townsend v. Pierre, 221 N.J. 36, 55 (2015). That said, we would

anticipate that in future guardianship cases, the Division and the other parties

will present more fulsome expert proof of the presence or absence of risks of

harm of the parent's marijuana usage, 7 now guided by the explicit terms of the

new statutes.

On the record presented, we are satisfied the trial court had substantial

credible evidence to conclude that the Division established all four prongs of the

termination criteria, and that the court did not apply an impermissible per se

approach disqualifying them as caretakers because of their marijuana usage.

Both parents admitted during their interviews that they had smoked marijuana

on multiple occasions while the children were in their care.

7
Without mandating it, we would expect that the judges trying these cases in
the future would benefit from hearing testimony from expert witnesses who have
particular specialization in marijuana use and dependency.

35 A-1774-19
We recognize the record does not show that Dylan or the other children

were injured in an accident, or abandoned in an unsafe place, 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. The court need not "wait to act until a child is actually irremediably

impaired." In re Guardianship of D.M.H., 161 N.J. at 383.

Furthermore, the expert opinions of Dr. Singer and the substance abuse

evaluator who diagnosed the father were not rebutted by any competing expert

proof. This is 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 has had a long, documented history of substance abuse,

coupled with her own persisting mental health issues.

Beyond this, there are ample additional grounds identified in the second

trial judge's detailed opinion, well beyond the parents' admitted marijuana

usage, that support the court's decision to terminate. Among other things, those

factors included the mother's mental health problems, the parents' repeated

failures to complete certain services reasonably offered by the Division, their

inconsistent attendance at visitations, and their difficulties with housing despite

36 A-1774-19
financial assistance. The trial court did acknowledge the parents' temporary

period of custody in 2016 during Dylan's first year before he was justifiably

removed a second time, as well as the mother's subsequent success in becoming

educated and employed. The court reasonably weighed those and other

considerations, including Dylan's strong bonds with his resource mother, and

Dr. Singer's unrebutted expert analysis of why termination of the parents' rights

would not cause Dylan more harm than good.

In sum, applying the deference we must afford to the Family Part judge as

the fact-finder, we affirm the court's final judgment, substantially for the cogent

reasons detailed in the judge's written opinion.

We have duly considered all of the other points raised by appellants in

seeking to overturn the judge's decision, and conclude none of them have

sufficient merit to warrant comment. R. 2:11-3(e)(1)(E).

Affirmed.

37 A-1774-19

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