Draft W: Outline.docx

Re: Merely Legalizing Marijuana in New York State Will Have Little to No Impact on Article X Proceedings in Family Court. I.

INTRODUCTION a. Stephanie Clifford & Jessica Silver-Greenberg’s NY Times Foster Case as Punishment: The New Reality of ‘Jane Crow’ article: describe scene of Maisha Joefield getting her daughter, Deja, taken away by the Administration for Children’s Services (ACS) while Ms. Joefield was taking a shower. The scene will illustrate the heartbreak that accompanies ACS involvement.1 b. What constitutes as child neglect and/or abuse in New York State i. Child neglect occurs a child experiences physical, mental, or emotional impairment, or is in imminent danger of such impairment because the child’s caretaker failed to exercise a minimum degree of care. ii. Child abuse occurs when a child suffers death, serious physical or emotional harm, or loss or impairment of any bodily organ due to the caretaker’s act, or failure to act.2 iii. Proof of a caretaker repeatedly misusing a drug or drugs or alcoholic beverages, to the extent that it mentally impairs the individual, shall be prima facie evidence that a child is a neglected child, unless that person is voluntarily and regularly participating in a recognized rehabilitation program.3 iv. The petitioner (ACS) must prove that there is a nexus between the child’s physical, mental, or emotional impairment, or imminent danger of impairment, and the parent’s actions.4 c. Status of New York’s marijuana laws i. In NYS, possession of any amount of marijuana in a public place, as defined by New York Penal Law § 240.00, is a class B misdemeanor and can lead to excessive fines or jail time.5 ii. In NY, patients can only use medical marijuana if they suffer from a debilitating or life-threating condition, and a severe symptom associated with that condition.6 iii. Starting September 1, the NYPD will not arrest individuals for smoking weed in public, unless they have an open arrest warrant, are on parole/probation, don’t have identification, have been convicted of a violent crime, or are considered a threat to the public.7 1. The City’s current marijuana arrest level is around 17,500 people per year. The new policy should cut arrests by about 10,000 annually.8

Stephanie Clifford & Jessica Silver-Greenberg, Foster Care as Punishment: The New Reality of ‘Jane Crow’, NY TIMES (July 21, 2017), https://www.nytimes.com/2017/07/21/nyregion/foster-care-nyc-jane-crow.html. 2 N.Y. Fam. Ct. Act § 1012. 3 N.Y. Fam. Ct. Act § 1046. 4 Nicholson v. Scoppetta, 820 N.E.2d 840 (N.Y. 2004). 5 N.Y. Penal Law § 221.05. See also N.Y. Penal Law § 240.00. 6 Sara E. Payne & Lee Williams, Medical Marijuana in New York: Where We’ve Been And Where We’re Going, 90AUG. N.Y. ST. B.J. 16 (2018). 7 Jonathan Wolfe, Marijuana in New York: Here’s How the Laws Are Changing, N.Y. TIMES (June 20, 2018), https://www.nytimes.com/2018/06/20/nyregion/marijuana-laws-new-york.html. 8 Id. 1

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iv. Although NYC has a new policy to reduce marijuana arrests, this policy will do nothing for families because ACS is targeting families, not the NYPD.9 1. “There is a strong presumption that one cannot use marijuana and be a full functioning person, especially not an adequate parent.”10 v. Antidiscrimination laws: Under N.Y. Public Health Law § 3369, the fact that a person is a certified medical marijuana user cannot be a consideration pursuant to applicable sections of the Family Court Act.11 d. The Problem: Since September 1, 2018, smoking marijuana in New York City can lead to a mere fine. Such liberal laws can be especially beneficial for caretakers and parents who use marijuana. If parents or caretakers are found with marijuana, their risk of facing legal repercussions, such as being flagged by the Department of Family Services (DCFS) and the Administration for Children’s Services (ACS), is decreased. However, parents and caretakers are still at risk of being scrutinized by family courts for their marijuana use. Even with evolving cannabis laws, the legalization of marijuana alone will have minimal impact on child welfare proceedings in New York State. e. General Proposition: If recreational marijuana were legalized in New York, a caretaker’s pattern of marijuana use would most likely be evidence of “neglect” under the Family Court Act § 1012(f) because ACS can still prove that marijuana use is a danger to a child. State legislatures must adopt antidiscrimination provisions along with their recreational marijuana laws. f. Narrow Proposition: New York recreational marijuana laws should enforce an antidiscrimination provision that prohibits family courts from separating families merely because of a caretaker’s marijuana use. Similar to § 3369, the fact that a caretaker uses marijuana should not be a consideration under Article X proceedings. Without evidence of danger to the safety of the child, a caretaker’s marijuana use should not be the basis for abuse or neglect proceedings. This provision would essentially amend Family Court Act § 1012. § 1012 should be more specific, should distinguish between drugs, and should provide clear guidelines for a finding of neglect. II.

BACKGROUND a. In 2017 alone, ACS conducted 59,408 child abuse/neglect investigations.12 i. “It is hard for middle-class parents in middle-class neighborhoods to imagine the level of fear that poor parents in poor neighborhoods feel after they’ve been the subject of a child-protective investigation or have had their children removed and returned to them.”13

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Shakira Kennedy, My Kids at Risk, Because of Pot, N.Y. DAILY NEWS (June 22, 2018), http://www.nydailynews.com/opinion/ny-kids-at-risk-because-of-pot-20180621-story.html. 10 Alice Kwak, Medical Marijuana and Child Custody: The Need to Protect Patients and Their Families from Discrimination, 28 HASTINGS WOMEN’S L. J. 119, 120 (2017). 11 N.Y. Pub. Health Law § 3369. 12 See Abuse/Neglect Investigations by Community District, 2014-2017, ACS, https://www1.nyc.gov/assets/acs/pdf/data-analysis/2018/AbuseNeglectInvestByCommDistrictYrs2014To2017.pdf. 13 Rachel Blustain, The Limits of Protecting: Fighting the Fear of ACS, City Limits (Dec. 18, 2014), https://citylimits.org/2014/12/18/the-limits-of-protection-fighting-the-fear-of-child-welfare-officers/.

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ii. Of those 59,408 reports in 2017, 3,797 children were placed in foster care within the five boroughs.14 iii. In NY family courts, the standard of removal is: (1) there is actual or imminent danger to the child; (2) the caretaker’s failed to exercise a minimum degree of care, by action or inaction; and (3) that there is a nexus of harm between the actual/imminent danger to the child and the parent’s failure to exercise a minimum degree of care.15 1. More than 90 percent of the cases alleging drug use involve marijuana, as opposed to other drugs. ACS often brings neglect charges on mere recreational marijuana use, then later searchers for other grounds to bolster cases. Lawyers say that “more than a dozen cases on their dockets involv[e] parents who have never faced neglect allegations and whose children were placed in foster care because of marijuana allegations.” The law does not distinguish between marijuana and other drugs, such as heroin or cocaine.16 iv. A mere positive toxicology for a controlled substance does not prove that a child has been or is in imminent danger of being impaired.17 b. Cannabis can “treat a myriad of medical conditions such as cancer symptoms, glaucoma, HIV/AIDS symptoms, spasticity associated with multiple sclerosis,” and post-traumatic stress disorder.18 i. However, researchers don’t fully understand all the ways cannabis can affect the mind and body.19 ii. Marijuana use can affect specific parts of the brain responsible for memory, learning, attention, decision making, coordination, emotions, and reaction time.20 iii. There are no reports of deaths from marijuana alone. However, the “negative side effects should be closely considered to see whether they would create situations posing a substantial risk that a child will suffer serious physical harm or illness.”21 iv. “Negative health consequences of marijuana have been found to be lower than those associated with alcohol, tobacco and illicit drugs including heroin and cocaine.”22 v. Arrests and incarceration negatively impact individuals “by destabilizing families, hindering access to education and health care, lowering employment opportunities, increasing poverty, and limiting access to housing, particularly in low-income

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Child Welfare Indicators Annual Report 2017, ACS, https://www1.nyc.gov/assets/acs/pdf/dataanalysis/2017/CityCouncilReport2017Annual.pdf. 15 Nicholson v. Scoppetta, 820 N.E.2d 840, 844 (N.Y. 2004). 16 Mosi Secret, No Cause for Marijuana Case, but Enough for Child Neglect, N.Y. TIMES (Aug. 17, 2011), https://www.nytimes.com/2011/08/18/nyregion/parents-minor-marijuana-arrests-lead-to-child-neglect-cases.html. 17 Nassau Cty. Dep’t of Soc. Servs. On Behalf of Dante M. v. Denise J., 661 N.E.2d 138 (N.Y. 1995). 18 David Malleis, The High Price of Parenting High: Medical Marijuana and Its Effects on Child Custody Matters, 33 U. LA. VERNE L. REV. 257 (2012). 19 Arefa Cassoobhoy, Medical and Recreational Marijuana: How They Affect Your Brain and Body, WEB M.D. (May 10, 2018), https://www.webmd.com/mental-health/marijuana-use-and-its-effects#1. 20 Marijuana and Public Health, CDC (Feb. 27, 2018), https://www.cdc.gov/marijuana/health-effects.html. 21 David Malleis, The High Price of Parenting High: Medical Marijuana and Its Effects on Child Custody Matters, 33 U. LA. VERNE L. REV. 257 (2012). 22 Executive Summary Assessment of the Potential Impact of Regulated Marijuana in New York State, N.Y. DEP’T OF HEALTH (July 2018), https://www.health.ny.gov/regulations/regulated_marijuana/docs/executive_summary_07-1318.pdf.

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communities of color where arrests are concentrated despite equivalent rates of marijuana use across racial groups.”23 vi. “Black people were arrested on low-level marijuana charges at eight times the rate of white, non-Hispanic people over the past three years … Hispanic people were arrested at five times the rate of white people. In Manhattan … Black people there were arrested at 15 times the rate of white people.”24 c. In substance abuse cases, ACS can show danger of physical, mental, or emotional impairment in one of two ways. i. First, ACS can attempt to prove that a caretaker’s repeated pattern of substance abuse would result in actual danger of impairment of the physical, mental, or emotional condition of the parent, pursuant to Family Court Act § 1012.25 ii. ACS can also attempt to establish a prima facie case under Family Court Act § 1046(a)(iii). Once prima facie evidence is presented, the caretaker must present evidence to rebut the presumption of neglect.26 d. ACS involvement can have a severely negative impact on children. In fact, many foster children are more likely to end up in jail, homeless, or pregnant. They are also less likely to be employed or go to college.27 i. “Children who are separated from their parents earn less, experience higher rates or teen pregnancy, and are more likely to come into contact with the justice system than their similarly situated peers.”28 III.

LEGAL STATUS QUO a. The current status of marijuana laws is evolving in New York. Governor Cuomo recently suggested that “it was not a question of if, but when legalization would happen in New York.” Similarly, New York City Mayor Bill de Blasio implemented a new policy that would fine individuals found smoking in public instead of arresting them. However, individuals can still be arrested if they have an open warrant, are on parole/probation, don’t have valid identification, have been convicted of a violent crime, or are considered a threat to the public.29 i. New York currently allows for medical marijuana use; medical marijuana use is very limited, with only 12 qualifying conditions. Governor Cuomo is working on legalizing recreational marijuana, but state legislature still has to vote to enforce the bills.30

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Id. Benjamin Mueller, Robert Gebeloff, & Sahil Chinoy, Surest Way to Face Marijuana Charges in New York: Be Black or Hispanic, N.Y. TIMES (May 13, 2018), https://www.nytimes.com/2018/05/13/nyregion/marijuana-arrestsnyc-race.html. 25 Matter of Jones v. Jones, 2012 N.Y. Slip Op. 50257(U) (Kings Co. Fam. Ct. 2012). 26 Id. 27 Pam Fessler, Foster Kids Face Tough Times After Age 18, NPR (April 7, 2010), https://www.npr.org/templates/story/story.php?storyId=125594259. 28 Raphael Pope-Sussman, Advocates Say ACS Is ‘Running Scared’ In the Wake of Horrifying Child Abuse Cases, Gothamist (Dec. 6, 2016), http://gothamist.com/2016/12/06/acs_removal_rate_rise.php. 29 Jonathan Wolfe, Marijuana in New York: Here’s How the Laws Are Changing, N.Y. TIMES (June 20, 2018), https://www.nytimes.com/2018/06/20/nyregion/marijuana-laws-new-york.html. 30 Jonathan Wolfe, Marijuana in New York: Here’s How the Laws Are Changing, N.Y. TIMES (June 20, 2018), https://www.nytimes.com/2018/06/20/nyregion/marijuana-laws-new-york.html. 24

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b. Around the United States, 21 states allow only marijuana use, while 9 states and the District of Columbia allow both recreational marijuana and medical marijuana. Thus, 30 states and Washington, D.C. allow marijuana for medical purposes.31 i. For example, under California law, possession of 28.5 grams or less of marijuana is punishable by a fine of $100.32 1. In California, to state a cause of action, the Department of Family Services (DCFS) must show that the child has suffered or is at risk of suffering serious physical harm or illness because of the parent’s conduct.33 2. The Court of Appeals of California, Second District, held that even legal use of marijuana can be abuse if it presents a risk of harm to minors. However, a parent’s use of marijuana “without more” does not bring a child within the jurisdiction of the dependency court.34 a. In In re Alexis E., the subject children were detained at the Los Angeles County DCFS after an anonymous report claimed that the children were being emotionally abused by their father. The California court stated that although mere use of marijuana does not support a finding of risk to minors, there was extensive evidence that the father was irritable, not himself, snapped at the children, and had less patience with them when he smoked marijuana.35 ii. Under Colorado law, adults 21 or older can legally possess one ounce of marijuana.36 c. Interviews with legal professions specializing in family law/family defense: i. Whether they think that the legalization of marijuana will affect the legal climate, and how. IV.

OTHER CONSIDERATIONS a. Why is this issue ripe to tackle now? i. ACS investigations and foster care removals are increasing. The effects of foster care are daunting on families. ii. Marijuana laws are evolving in New York; Governor Cuomo is planning to propose a bill to eventually legalize marijuana. 1. Mayor de Blasio is attempting to abolish arrests for small amounts of marijuana in public. b. Potential harm to children if parents can no longer be penalized for their marijuana use c. Increased marijuana use i. Youths’ access to marijuana if their parents d. Matter of Bentley C. (Zachary D.), 2018 NY Slip Op 06667  evidence that the father tested positive for THC, oxycodone, and opioids on one occasion (insufficient to

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Ryan Struyk, Marijuana Legalization By the Numbers, CNN (March 30, 2018), https://www.cnn.com/2018/01/04/politics/marijuana-legalization-by-the-numbers/index.html. 32 Cal. Health & Safety Code § 11357. 33 Cal. Wel. & Inst. Code § 300. See also In Rocco M., 1 Cal. App. 4th 814, 817 (1991), modified (Dec. 19, 1991), and abrogated by In re R.T., 3 Cal. 5th 622 (2017). 34 In re Alexis E., 90 Cal. Rptr. 3d 44, 55 (Cal. 2009). 35 Id. at 55. 36 COLO. CONST. art. XVIII, § 16.

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establish that the father repeatedly misused drugs); father's admission to using marijuana was also insufficient to meet petitioner's burden without further evidence as to the "duration, frequency, or repetitiveness of his drug use, or whether [the father] was ever under the influence of drugs while in the presence of the subject child."37 e. Why the proposal is preferred over the current legal status quo: The current laws allow state officials to separate family because of mere marijuana use. Under § 1012, proof of repeated substance abuse can be prima facie evidence of child neglect. The law does not distinguish between marijuana and other “hard” drugs, such as heroin and cocaine. Adopting my suggested changes would reduce the amount of families separated by DCFS and ACS in New York State. V.

PROPOSAL A. ACS’ Intervention and Impact on Families

In 2017 alone, the Administration for Children’s Services (ACS) conducted 59,408 child abuse and neglect investigations.38 Of those 59,408 investigations, 3,797 children were removed from their homes and placed in foster care within the five boroughs.39 To prove neglect in New York City family courts, the agency (ACS) must prove (1) there is actual or imminent danger to the child; (2) the caretaker failed to exercise a minimum degree of care, by action or inaction; and (3) that there is a nexus of harm between the actual/imminent danger to the child and the parent’s failure to exercise a minimum degree of care.40 Often, ACS fails to illustrate a nexus of harm between the actual or imminent danger to the child and the parent’s alleged neglect.41 Nonetheless, courts are eager to label children as “neglected” and remove children from their homes; courts are not discouraged by this lack of nexus.42 This low standard imposed by ACS and courts can have significant, detrimental effects on children.43 In America, the foster care system serves around half a million children annually.44 Children in foster care face emotional, developmental, and social45 trauma.46 MIT Professor and researcher found that children who were more likely to be placed in foster care “had higher teen birth rates, homelessness, physical/developmental/mental problems, lower earnings, and were 37

Matter of Bentley C., 2018 NY Slip Op 06667, 1 (4th Dept. 2018). See Abuse/Neglect Investigations by Community District, 2014-2017, ACS, https://www1.nyc.gov/assets/acs/pdf/data-analysis/2018/AbuseNeglectInvestByCommDistrictYrs2014To2017.pdf. 39 Rachel Blustain, The Limits of Protecting: Fighting the Fear of ACS, City Limits (Dec. 18, 2014), https://citylimits.org/2014/12/18/the-limits-of-protection-fighting-the-fear-of-child-welfare-officers/. 40 Nicholson v. Scoppetta, 820 N.E.2d 840, 844 (N.Y. 2004). 41 See N.Y. Fam. Ct. Act § 1012. ** Find case that supports this?? 42 Find case to support this! Maybe statistics? 43 Annette R. Appell, Protecting Children or Punishing Mothers: Gender, Race, and Class in the Child Protection System, 48 S.C. L. REV. 577, 602 (1997); McDonald et al., Assessing the Long-Term Effects of Foster Care: A Research Synthesis, IRP Special Report (1996), https://www.irp.wisc.edu/publications/sr/pdfs/sr57.pdf; See Vivek S. Sankaran, & Christopher Church, Easy Come, Easy Go: The Plight of Children who Spend Less than Thirty Days in Foster Care, 19 U. PA. J.L. & SOC. CHANGE 207 (2017). 44 Tanya Asim Cooper, Racial Bias in American Foster Care: The National Debate, 97 MARQ. L. REV. 215, 223 (2013). 45 Dorothy E. Roberts, The Racial Geography of Child Welfare: Toward a New Research Paradigm, Child Welfare League of America [FIX CITATION] 46 See Vivek S. Sankaran, & Christopher Church, Easy Come, Easy Go: The Plight of Children who Spend Less than Thirty Days in Foster Care, 19 U. PA. J.L. & SOC. CHANGE 207 (2017). 38

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more likely to need public assistance and experience substance abuse problems.”47 Further, these children face higher rates of delinquency.48 Roughly 25,000 children who are placed in foster care annually return home within thirty days. 49 Child protective specialists petition for children to be removed from their homes and be placed in unfamiliar environments “only to be returned to the very caretaker from whom they were initially removed.”50 Families of color are disproportionately targeted and represented in the child welfare system. Compared to white children, children of color are “more likely to drift in care, less likely to be reunited with families, … [and are] less likely to find [a] permanent family” once placed in foster care.51 In fact, African American and Native American children make up a small percentage of children in foster care, but they are more likely to be involved in the child welfare system than White children.52 Families of color lack power and resources, and become ‘“passive, voiceless subjects of the [system’s] paternalistic directives, [not] active participants in the determination of their own destinies”’ once they become part of the child welfare system.53 [INSERT STATISTICS FROM SHATTERED BONDS ABOUT THE DISPROPORTIONALITY OF AFRICAN AMERICAN FAMILIES IN CP!!!!!] Parents involved in the child welfare system face years of court supervision, loss of opportunities they would otherwise be available to utilize, and face the stigma of being a “bad parent.”54 “There is a strong presumption that one cannot use marijuana and be a full functioning person, especially not an adequate parent.”55 In a system full of “biases, differing values, and stereotypical views,” judges delegate discretion to ACS and lawyers on issues of removal, placement, and services.56 Once ACS intrudes into the private lives of families, caseworkers do not make meaningful attempts to assist families, because their caseload is too high and they are not well equipped to provide each family with individualized attention.57

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Tanya Asim Cooper, Racial Bias in American Foster Care: The National Debate, 97 MARQ. L. REV. 215, 223 (2013). 48 See Tanya Asim Cooper, Racial Bias in American Foster Care: The National Debate, 97 MARQ. L. REV. 215, 223 (2013). See also Vivek S. Sankaran, & Christopher Church, Easy Come, Easy Go: The Plight of Children who Spend Less than Thirty Days in Foster Care, 19 U. PA. J.L. & SOC. CHANGE 207 (2017). 49 Vivek S. Sankaran, & Christopher Church, Easy Come, Easy Go: The Plight of Children who Spend Less than Thirty Days in Foster Care, 19 U. PA. J.L. & SOC. CHANGE 207 (2017). 50 Vivek S. Sankaran, & Christopher Church, Easy Come, Easy Go: The Plight of Children who Spend Less than Thirty Days in Foster Care, 19 U. PA. J.L. & SOC. CHANGE 207 (2017). 51 Tanya Asim Cooper, Racial Bias in American Foster Care: The National Debate, 97 MARQ. L. REV. 215, 223 (2013). 52 Tanya Asim Cooper, Racial Bias in American Foster Care: The National Debate, 97 MARQ. L. REV. 215, 223 (2013). 53 Tanya Asim Cooper, Racial Bias in American Foster Care: The National Debate, 97 MARQ. L. REV. 215, 223 (2013), quoting Tanya Asim Cooper, Race Is Evidence of Parenting in America: Another Civil Rights Story, C.R. IN AM. L. HIST. & POL. (2014), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2434069. 54 See Tanya Asim Cooper, Racial Bias in American Foster Care: The National Debate, 97 MARQ. L. REV. 215, 223 (2013); See also Alice Kwak, Medical Marijuana and Child Custody: The Need to Protect Patients and Their Families from Discrimination, 28 HASTINGS WOMEN’S L. J. 119, 120 (2017). 55 Alice Kwak, Medical Marijuana and Child Custody: The Need to Protect Patients and Their Families from Discrimination, 28 HASTINGS WOMEN’S L. J. 119, 120 (2017). 56 Tanya Asim Cooper, Racial Bias in American Foster Care: The National Debate, 97 MARQ. L. REV. 215, 223 (2013). 57 Annette R. Appell, Protecting Children or Punishing Mothers: Gender, Race, and Class in the Child Protection System, 48 S.C. L. REV. 577, 602 (1997).

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Commented [BM1]: PUT THIS AFTER THE STATISTICS FROM SHATTERED BONDS!

Thus, parents have no voice in a system that invades the most private parts of their lives, and do not have proper assistance to help them recover from this intrusion.58 It may take years to reunite families, but it takes minutes to begin the process that rips families apart. Anyone can make a report when they suspect child abuse or neglect.59 Once a report is made, the State Central Registry (SCR) can direct ACS to begin an investigation, if the report warrants one.60 These reports can be made for any reason, or for no reason at all.61 In 2010, police officials searched Bronx resident Penelope Harris’s apartment and found 10 grams of marijuana in the apartment.62 The 10 grams were below the legal threshold for even a misdemeanor, and prosecutors declined to charge her.”63 However, the officers reported Harris’s arrest to the state’s child welfare hotline, and child protective specialists removed Harris’s children from the home.64 The small amount of marijuana found was not enough for a criminal charge, but it was enough to remove Harris’s children and rip apart her family.65 B. ACS Intervention in the Lives of Marijuana Using Caretakers Harris’s incident is not a unique occurrence. Many New Yorkers “who have been caught with small amounts of marijuana, or have simply admitted to using it, have become ensnared in civil child neglect cases … though they did not face even the least of criminal charges.”66 Child protective specialists believe that “marijuana use by parents often hint at other serious problems.”67 Family defense attorneys admit that “more than 90 percent of cases alleging drug use … involve marijuana.”68 In child welfare cases, the law does not distinguish between different types of drugs.69 Notably, the law does not differentiate between marijuana and other hard drugs, such as cocaine or heroin, although the effects of each drug significantly vary.70

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See Tanya Asim Cooper, Racial Bias in American Foster Care: The National Debate, 97 MARQ. L. REV. 215, 223 (2013); See also Alice Kwak, Medical Marijuana and Child Custody: The Need to Protect Patients and Their Families from Discrimination, 28 HASTINGS WOMEN’S L. J. 119, 120 (2017); FIND ANOTHER CASE/ARTICLE FOR THIS** 59 ACS - HOW TO MAKE A REPORT, https://www1.nyc.gov/site/acs/child-welfare/how-to-make-report.page (last visited Oct 20, 2018). 60 ACS - HOW TO MAKE A REPORT, https://www1.nyc.gov/site/acs/child-welfare/how-to-make-report.page (last visited Oct 20, 2018). 61 See Rachel Blustain, False Abuse Reports Trouble Child Welfare Advocates, CITY LIMITS (Oct. 4, 2013), https://citylimits.org/2013/10/04/false-abuse-reports-trouble-child-welfare-advocates/2/#.VBVxp2NNg40. 62 Mosi Secret, No Cause for Marijuana Case, but Enough for Child Neglect, N.Y. TIMES (Aug. 17, 2011), https://www.nytimes.com/2011/08/18/nyregion/parents-minor-marijuana-arrests-lead-to-child-neglect-cases.html. 63 Mosi Secret, No Cause for Marijuana Case, but Enough for Child Neglect, N.Y. TIMES (Aug. 17, 2011), https://www.nytimes.com/2011/08/18/nyregion/parents-minor-marijuana-arrests-lead-to-child-neglect-cases.html. 64 Mosi Secret, No Cause for Marijuana Case, but Enough for Child Neglect, N.Y. TIMES (Aug. 17, 2011), https://www.nytimes.com/2011/08/18/nyregion/parents-minor-marijuana-arrests-lead-to-child-neglect-cases.html. 65 See Mosi Secret, No Cause for Marijuana Case, but Enough for Child Neglect, N.Y. TIMES (Aug. 17, 2011), https://www.nytimes.com/2011/08/18/nyregion/parents-minor-marijuana-arrests-lead-to-child-neglect-cases.html. 66 Mosi Secret, No Cause for Marijuana Case, but Enough for Child Neglect, N.Y. TIMES (Aug. 17, 2011), https://www.nytimes.com/2011/08/18/nyregion/parents-minor-marijuana-arrests-lead-to-child-neglect-cases.html. 67 Mosi Secret, No Cause for Marijuana Case, but Enough for Child Neglect, N.Y. TIMES (Aug. 17, 2011), https://www.nytimes.com/2011/08/18/nyregion/parents-minor-marijuana-arrests-lead-to-child-neglect-cases.html. 68 Mosi Secret, No Cause for Marijuana Case, but Enough for Child Neglect, N.Y. TIMES (Aug. 17, 2011), https://www.nytimes.com/2011/08/18/nyregion/parents-minor-marijuana-arrests-lead-to-child-neglect-cases.html. 69 See N.Y. Fam. Ct. Act § 1012. 70 N.Y. Fam. Ct. Act § 1012.

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Researchers still do not fully understand all the ways cannabis affects an individual’s mind and body.71 Particularly, the effects vary depending on who you are and the potency of the strain.72 Marijuana affects different parts of the brain, including memory, learning, attention, decision making, coordination, emotion, and reaction time.73 Nonetheless, compared with alcohol, tobacco, and other illicit drugs, marijuana’s negative health consequences have found to be much lower.74 However, until recently, New Yorkers possessing any amount of marijuana in a public place, as defined by New York Penal Law § 240.00, was considered a class B misdemeanor.75 Individuals faced the possibility of fines or arrest.76 C. New York’s Attempt to Reduce Arrests for Marijuana Possession In New York City alone, about 17,500 people are arrested annually on marijuana possession charges.77 In an effort to minimize these arrests, New York City Mayor Bill de Blasio implemented a new policy in 2018.78 The new policy would fine New Yorkers found in public with marijuana, rather than arrest them.79 Mayor de Blasio estimates that the policy would eliminate about 10,000 of marijuana possession arrests. 80 Further, New York Governor Andrew Cuomo is working to legalize recreational marijuana.81 Nonetheless, the full legalization of marijuana in New York, for both medical and recreational purposes, will have minimal impact on families. Families will still be at risk of facing ACS intervention. The new policy implemented by Mayor de Blasio is not enough to protect marijuana users from legal sanctions in family court, because it is ACS, and not the NYPD, that is targeting these families.82 Further, ACS may still argue that the legalization of a substance does not seem the substance safe; for example, alcohol is legal, but alcohol misuse can 71

Arefa Cassoobhoy, Medical and Recreational Marijuana: How They Affect Your Brain and Body, WEB M.D. (May 10, 2018), https://www.webmd.com/mental-health/marijuana-use-and-its-effects#1. 72 Arefa Cassoobhoy, Medical and Recreational Marijuana: How They Affect Your Brain and Body, WEB M.D. (May 10, 2018), https://www.webmd.com/mental-health/marijuana-use-and-its-effects#1. 73 Marijuana and Public Health, CDC (Feb. 27, 2018), https://www.cdc.gov/marijuana/health-effects.html. 74 Executive Summary Assessment of the Potential Impact of Regulated Marijuana in New York State, N.Y. DEP’T OF HEALTH (July 2018), https://www.health.ny.gov/regulations/regulated_marijuana/docs/executive_summary_07-1318.pdf. 75 N.Y. Penal Law § 221.10. See also N.Y. Penal Law § 240.00. 76 N.Y. Penal Law § 221.10. See also N.Y. Penal Law § 240.00. 77 Benjamin Mueller, New York City Will End Marijuana Arrests for Most People, N.Y. TIMES (June 19, 2018), https://www.nytimes.com/2018/06/19/nyregion/nypd-marijuana-arrests-new-yorkcity.html?rref=collection%2Fsectioncollection%2Fnyregion&action=click&contentCollection=nyregion®ion=ra nk&module=inline&version=highlights&contentPlacement=2&pgtype=sectionfront. 78 Jonathan Wolfe, Marijuana in New York: Here’s How the Laws Are Changing, N.Y. TIMES (June 20, 2018), https://www.nytimes.com/2018/06/20/nyregion/marijuana-laws-new-york.html. 79 Jonathan Wolfe, Marijuana in New York: Here’s How the Laws Are Changing, N.Y. TIMES (June 20, 2018), https://www.nytimes.com/2018/06/20/nyregion/marijuana-laws-new-york.html. 80 Benjamin Mueller, New York City Will End Marijuana Arrests for Most People, N.Y. TIMES (June 19, 2018), https://www.nytimes.com/2018/06/19/nyregion/nypd-marijuana-arrests-new-yorkcity.html?rref=collection%2Fsectioncollection%2Fnyregion&action=click&contentCollection=nyregion®ion=ra nk&module=inline&version=highlights&contentPlacement=2&pgtype=sectionfront. 81 Jonathan Wolfe, Marijuana in New York: Here’s How the Laws Are Changing, N.Y. TIMES (June 20, 2018), https://www.nytimes.com/2018/06/20/nyregion/marijuana-laws-new-york.html. 82 See Shakira Kennedy, My Kids at Risk, Because of Pot, N.Y. TIMES (June 22, 2018), http://www.nydailynews.com/opinion/ny-kids-at-risk-because-of-pot-20180621-story.html.

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trigger child neglect investigations.83 Thus, under Family Court Act § 1012, evidence of marijuana use may still deem a child neglected, if the marijuana use presents impairment, or risk of impairment, to a child’s mental, physical, and emotional condition.84 D. State Legislatures Should Implement a Provision to Protect Marijuana Users in Article X Proceedings State legislatures must consider more than just cannabis laws. New York state legislatures should implement a provision protecting marijuana users in New York City family courts. Similar to the New York Public Health Law § 3369, marijuana laws should include a provision stating that the fact that an individual uses marijuana “shall not be a consideration in a proceeding pursuant to applicable sections … in the family court act [namely Article X proceedings].”85 With the implementation of this provision in recreational marijuana laws, parents would not be discriminated against simply because of their marijuana use. In child neglect investigations and Article X proceedings, courts should not base findings of neglect on a caretaker’s alleged marijuana use.86 If a child is not in danger, and is not in imminent risk of being in danger, then the fact that a parent uses marijuana should not be the basis of finding a child neglected. The proposed implementation of this provision does not urge that children should be exposed to drug use or remain in dangerous situations. After all, marijuana alters the mental state in ways that are even unknown to researchers; marijuana may affect each person differently.87 Instead, New York family courts should be more stringent in evaluating the case record. Courts should order ACS to establish a strong record, with clear evidence, that a child has suffered, or is imminent danger of suffering physical, mental, or emotional harm.88 Alice Kwak, attorney for Lewis Brisbois Bisgaard & Smith LLP, advocates for a similar proposal in child custody cases.89 Kwak argues that “medical marijuana statutes need specific legislation protecting parents from discrimination based on their status as a medical marijuana patient in child custody cases.”90 This proposal differs from Kwak’s proposal because this proposal aims to implement a provision in both medical marijuana and recreational marijuana laws. On the other hand, Kwak advocates that state legislatures should implement such provisions in only medical marijuana statutes.91 Further, this proposal attempts to protect parents

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See N.Y. Fam. Ct. Act § 1012. In re Alexis E., 90 Cal. Rptr. 3d 44, 55 (Cal. 2009). 85 N.Y. Pub. Health Law § 3369. 86 See N.Y. Fam. Ct. Act § 1012. 87 Arefa Cassoobhoy, Medical and Recreational Marijuana: How They Affect Your Brain and Body, WEB M.D. (May 10, 2018), https://www.webmd.com/mental-health/marijuana-use-and-its-effects#1. 88 See N.Y. Fam. Ct. Act § 1012. 89 Alice Kawk, Medical Marijuana and Child Custody: The Need to Protect Patients and their Families from Discrimination, 28 HASTINGS WOMEN’S L.J. 119, 136 (2017). 90 Alice Kawk, Medical Marijuana and Child Custody: The Need to Protect Patients and their Families from Discrimination, 28 HASTINGS WOMEN’S L.J. 119, 136 (2017). 91 Alice Kawk, Medical Marijuana and Child Custody: The Need to Protect Patients and their Families from Discrimination, 28 HASTINGS WOMEN’S L.J. 119, 136 (2017). 84

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and caretakers in Article X proceedings, while Kwak’s proposal aims to protect parents in child custody battles.92 [INSERT PARAGRAPH HOW DRUG TESTING MAY BE INACCURATE  USE INFORMATION THAT FALLON SPEAKER SENT! –– “A single use of marijuana can result in positive urine tests up to 1 week after administration, whereas long-term use can produce positive results in the urine up to 46 days after cessation.93] E. Section 1012 of the Family Court Act Should Be Amended Along with proposed provision that would protect marijuana users in Article X proceedings, section 1012 of the Family Court Act should be amended.94 Section 1012 defines a neglected child as a child whose physical, mental, or emotional condition has been impaired, or is in imminent danger of becoming impaired, because of a caretaker’s failure to exercise a minimum degree of care.95 Particularly, a parent fails to exercise a minimum degree of care when they misuse a drug or drugs, to the extent that he or she loses self-control of his or her actions.96 VI.

CONCLUSION a. The proposal attempts to reduce the amount of families subjected to scrutiny by ACS, DCFS, and family courts by implementing more rigid standards for proving neglect. The proposed laws will not discriminate against parents who participate in marijuana use. Particularly, these laws will not discriminate against Black and Hispanic families. i. Proposal will reduce the number of children in foster care. ii. Proposal will reduce the amount of annual ACS investigations. 1. Proposal will reduce the caseload of Child Protective Services (CPS) workers. iii. Proposal will protect families of color.

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Alice Kawk, Medical Marijuana and Child Custody: The Need to Protect Patients and their Families from Discrimination, 28 HASTINGS WOMEN’S L.J. 119, 136 (2017). 93 Karen E. Moeller, Kelly C. Lee, & Julie C. Kissack, Urine Drug Screening: Practical Guide for Clinicans, MAYO CLIN. PROC. (January 2008), https://www.mayoclinicproceedings.com. 94 N.Y. Fam. Ct. Act § 1012. 95 N.Y. Fam. Ct. Act § 1012. 96 N.Y. Fam. Ct. Act § 1012.

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