Outline.docx

Brigette Merzel_Outline & Research

1 OUTLINE

RE: The Impact of the Legalization of Marijuana in New York State on Child Protection 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

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. 1

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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 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 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. 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. 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. Roadmap: i. Background 1. What constitutes “abuse” and “neglect” in NY family courts ii. Legal Status Quo 1. Current marijuana laws iii. Considerations iv. Proposal 1. Antidiscrimination law applied to Article X provisions v. Conclusion BACKGROUND

Id. 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. 9

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Brigette Merzel_Outline & Research 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 return to them.”13 ii. Of those 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, esearchers 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

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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/. 14 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.

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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 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

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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. 23 Id. 24 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.

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Brigette Merzel_Outline & Research 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 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 iii. Alice Kwak, attorney for Lewis Brisbois Bisgaard & Smith LLP, advocates for a similar proposal. However, Kwak mentions that an antidiscrimination provision should be enforced in medical marijuana statutes. Kwak argues, “legislative reform is needed to protect parents from discrimination in child custody cases due to their legitimate use of marijuana, when it is a state-sanctioned, medical

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. 31 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. 29

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remedy. These provisions should direct courts not to make custody decisions based on the parent’s legal status as a medical marijuana user alone, and instead focus on additional probative circumstances in a particular case.”37 1. My proposal differs from Kwak’s proposal; I propose that antidiscrimination provisions should be enforced in both medical marijuana and recreational marijuana laws. Further, I propose that these provisions should protect parents and caretakers in Article X proceedings. 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

V.

PROPOSAL a. Problem: Merely legalizing the recreational use of marijuana in New York will have little to no impact on child welfare proceedings. Even with marijuana legal, family courts will still be able to argue that the legalization of a substance does not deem the substance safe. i. In states where marijuana is legalized for both recreational and medical use, such as California and Colorado, families are still subjected to state intervention through DCFS. a. “A parent’s history of marijuana use, without more, does not state a cause of action because allegations in the petition under 300(b) must place the child at current risk of serious physical harm.”38 b. Proposed Change/Adoption of the Law: The full legalization of marijuana in New York, for both medical and recreational purposes, will have minimal impact on families; families will still be subjected to state intervention, even when the drug is legalized. State legislatures must consider more than just cannabis plants. They must consider every individual being discriminated because of their marijuana use.

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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, 122 (2017). 38 Jennifer Ani, Parents, Kids and Cannabis: Best Practices for Attorneys, The Guardian (July/August 2015), http://www.canorml.org/aniarticle.pdf.

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Therefore, along with marijuana laws, NY state legislature should implement a provision that prohibits discrimination against marijuana users. In particular, similar to the New York Public Health Law § 3369, marijuana laws should include a provision that says that the fact that a person that uses marijuana “shall not be a consideration in a proceeding pursuant to applicable sections … in the family court act.”39 i. In Article X proceedings, courts should not base neglect proceedings based on the parent’s status as a marijuana user alone. ii. My proposal does not argue that children should be exposed to drug use or should be placed in dangerous situations. After all, marijuana does alter one’s mental state. Instead, the proposal argues that the court should order the petitioner (ACS) to establish clear evidence that the child has suffered, or is in imminent danger of suffering, physical, mental, and/or emotional harm. Essentially, my proposal will amend F.C.A. § 1012(f)(i)(B). c. 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. 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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N.Y. Pub. Health Law § 3369.

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1. 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, 90-AUG. 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-lawsnew-york.html. 8. Id. 9. 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-20180621story.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/dataanalysis/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-ofchild-welfare-officers/. 14. 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-minormarijuana-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/mentalhealth/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).

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Brigette Merzel_Outline & Research 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 -13-18.pdf. 23. Id. 24. 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-arrests-nyc-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-lawsnew-york.html. 30. Id. 31. Ryan Struyk, Marijuana Legalization By the Numbers, CNN (March 30, 2018), https://www.cnn.com/2018/01/04/politics/marijuana-legalization-by-thenumbers/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. 37. Alice Kawk, Medical Marijuana and Child Custody: The Need to Protect Patients and their Families from Discrimination, 28 HASTINGS WOMEN’S L.J. 119, 122 (2017). 38. Jennifer Ani, Parents, Kids and Cannabis: Best Practices for Attorneys, The Guardian (July/August 2015), http://www.canorml.org/aniarticle.pdf. 39. N.Y. Pub. Health Law § 3369.