In a recent New Jersey appellate case, the court held that recreational marijuana use cannot be the only or principal reason for terminating parental rights. The August 2, 2021 decision followed two trials and a previous appeal.
The parents in this case, David H. and Thea H., appealed a decision by the second trial judge terminating their parental rights to their son. David timely appealed and argued, among other issues, that recreational marijuana use should not disqualify a person as a parent. David listed ten states that allow recreational marijuana use and another 20 states, including New Jersey, allowing medical marijuana use. If recreational marijuana use did disqualify a person as a parent he argued, the child welfare systems of those states would be quickly overwhelmed.
Between the second trial decision in mid-December, 2019 and oral argument on the parents’ appeal on March 15, 2021, New Jersey’s laws regarding recreational marijuana use had changed considerably. The court pointed to this in support of its decision. In November 2020, voters approved a constitutional amendment legalizing marijuana use, cultivation, and commercialization by adults 21 years of age or older. Then, in February 2021, the Legislature passed three bills comprising the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act to regulate the new industry and govern civil and criminal justice reforms. The first of the three bills provided that if a parent tests positive for marijuana, that cannot be “the sole or primary basis” for an action brought by the Division of Child Protection and Permanency (DCPP). Instead, the DCPP must base an action against a parent “on harm or risk of harm to a child.” However, the DCPP may still use positive test results as evidence in an action against a parent.
The court also supported its decision by looking at similar cases in other jurisdictions. Citing cases in nine different states with specific provisions on parental use of marijuana, the court noted that “harm or risk of harm must be proved, marijuana use by itself does not support a presumption of neglect or endangerment.” Further, the court stated, in cases from five other states where there are no specific provisions regarding marijuana use by parents, certain courts have found there was no showing that the use of marijuana posed a risk of harm to a child.
The termination of David H. and Thea H.’s parental rights was affirmed by the appellate court for many other reasons including mental health issues, difficulties in housing, and inconsistent visitations with their son.
Jasmine Ramig is a first-year law student interested in the regulatory and educational framework embedded in cannabis law.