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NOT FOR PUBLICATION WITHOUT THE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

AND PERMANENCY,

Plaintiff-Respondent,

v.

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.

APPROVED FOR PUBLICATION

August 2, 2021

APPELLATE DIVISION
2 A-1774-19

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 
3 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. 
4 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. 30:4C15.1(a) had been proven by clear and convincing evidence. Hence, the judgment 

is affirmed.

I.

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) 
5 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 
6 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 
7 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).
8 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.
9 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 courtordered services. 

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

removal2 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). 
10 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.
11 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 sevenyear sentence.

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

a most-recent DSM-V diagnosis3 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.
12 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 selfmedication. 
13 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 
14 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. A3437-17 (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-
15 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.
16 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 
17 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.
18 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. 
19 A-1774-19

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 
20 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.

A.

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 
21 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. 
22 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 
23 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.
24 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 
25 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 
26 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 
27 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, 
28 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. 
29 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
30 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 
31 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 
32 A-1774-19

vulnerable "to the slightest parental misstep" when visiting, in a Divisionsupervised 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 casespecific 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. 
33 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. § 69.51A.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. 
34 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-beeffective 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. 
35 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.

C.

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. 
36 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 
37 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.