On March 31, 2021, Family Court Act § 1046(a)(iii) was amended to provide that ཞྭthe sole fact that an individual consumes cannabisཛྭ is not sufficient to constitute prima facie evidence of child neglect.
In this appeal, we are reviewing an order that determined the mother’s neglect of the child in question. One of the factors contributing to this finding was the mother’s inappropriate use of marijuana. The main issue before us is whether the amendment to Family Court Act § 1046(a)(iii) that took effect on March 31, 2021 (referred to as the 2021 amendment) should be applied retrospectively to events and a Family Court decision that took place prior to March 2021.
On May 31, 2019, the Suffolk County Department of Social Services (referred to as the petitioner) filed a petition claiming that the mother had neglected her child. The petition stated that due to the mother’s drug abuse and failure to address her mental health problems, the child was at immediate risk of experiencing emotional, mental, and physical impairments.
Based on the petition, it was stated that the mother had a past of cocaine and opiate abuse. Presently, she is misusing marijuana and her prescribed medication, Xanax. Furthermore, during a recent hospital stay, she displayed symptoms of paranoia and psychosis, which seemed to be caused by substance abuse. Following a fact-finding hearing, the Family Court reached a decision on January 10, 2020, affirming that the petitioner had provided sufficient evidence to establish that the mother had neglected the child in question. Currently, the mother is appealing this decision.
In a child neglect case under Article 10 of the Family Court Act, the petitioner is responsible for demonstrating neglect based on a preponderance of the evidence. A neglected child is one whose physical, mental, or emotional well-being has been harmed or is at immediate risk of harm due to the parent’s failure to provide a minimum level of care, including the misuse of drugs (Family Ct Act § 1012[f][i][B]). According to Section 1046(a)(iii) of the Family Court Act, if a person repeatedly misuses drugs under certain circumstances, it serves as initial evidence that the child of that person is neglected. In such cases, the petitioner is not required to prove that the child suffered actual harm or faced imminent danger.
The amendment in 2021 was a component of the Marihuana Regulation and Taxation Act (referred to as the MRTA), which encompassed a wide range of measures including the regulation, taxation, and decriminalization of marijuana usage. Section 1046(a)(iii) of the Family Court Act, which was changed by the MRTA (L 2021, ch 92, § 58), includes the following provision (with the new language introduced by the 2021 amendment emphasized):
(a) During any hearing under this article and article ten-A of this act:
(iii) evidence that an individual habitually abuses drugs or alcohol to the extent that it would normally result in the user experiencing significant levels of stupor, unconsciousness, intoxication, hallucination, disorientation, incompetence, impaired judgment, or a clear demonstration of irrationality, shall be considered as initial proof that a child who is either the offspring or under the legal guardianship of such person is being neglected. However, such drug or alcohol abuse shall not be considered initial proof of neglect if the person voluntarily and consistently participates in a recognized rehabilitative program.
However, it should be noted that merely consuming cannabis as an individual, without any additional determination that the child’s physical, mental, or emotional well-being was negatively affected or is at risk of being negatively affected, based on a reasonable amount of evidence, will not be considered enough to establish initial evidence of neglect.
In this situation, the mother argues that this Court should consider the 2021 amendment when evaluating the order issued by the Family Court in January 2020. While the mother relies on the general rule that a court is to apply the law in effect at the time it renders its decision, In English, there is a well-established principle that laws are generally assumed to apply only to future events and should not be interpreted to have a retroactive impact unless explicitly stated in their wording.
The rule invoked by the mother applies mainly in the context of laws governing matters like jurisdiction and procedural rules, the propriety of prospective relief, or collateral issues such as attorneys’ fees. By contrast, legislation that affects substantive rights, such as a statute that would impair rights a party possessed when they acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed, would have a retrospective effect if a court were to apply new law existing at the time of the decision. Therefore, the presumption against retroactive application applies to such legislation.
In this case, the 2021 amendment doesn’t just change a jurisdictional or procedural aspect. Instead, it directly impacts the fundamental rights of parents by placing a restriction on the type of evidence needed to establish a preliminary case of neglect. Therefore, the amendment made in 2021 seems to belong to the group of laws that should not be retroactively applied, unless the Legislature explicitly expresses or clearly indicates its preference for retroactivity. There is no provision in the MRTA stating whether the act should be applied retroactively or not.
However, the reasons underlying the presumption against the retroactive application of laws involve allowing individuals to adjust their behavior according to the law and safeguarding them against arbitrary actions by the government. The United States Supreme Court has provided the following clarification:
The presumption against the retroactive application of statutes has consistently been justified by the notion that it would be unfair to impose new obligations on individuals after the fact. In fact, under common law, the opposite rule applied to statutes that simply eliminated a burden on private rights by repealing a penal provision (criminal or civil). Such repeals were understood to prevent punishment for acts that occurred before the repeal took effect.
While it is generally presumed that statutory amendments apply only prospectively unless there is clear legislative intent for retroactive application, there is an exception to this presumption when it comes to remedial legislation. Remedial statutes aim to correct flaws in existing laws and provide relief to affected parties. While classifying a statute as remedial does not automatically overcome the presumption of prospectivity, it serves as a useful tool in determining legislative intent when other indicators are lacking.
Various factors contribute to the analysis of retroactivity, including whether the Legislature explicitly states retroactive effect or expresses a sense of urgency, whether the statute intends to rectify an unintended judicial interpretation, and whether the enactment reinforces the legislative judgment on the matter at hand.
In enacting the MRTA (Marihuana Regulation and Taxation Act) and establishing the Cannabis Law as a new chapter in the Consolidated Laws of New York, the Legislature outlined its findings and intentions as follows:
The Legislature recognizes that existing marijuana laws have failed to benefit the general public. These laws have proven ineffective in reducing marijuana use and have instead led to severe collateral consequences, such as mass incarceration and generational trauma, limiting law-abiding citizens’ access to housing, employment, and essential services.
Additionally, the current laws have fostered an illicit market that poses risks to public health and undermines the Legislature’s ability to prevent minors from accessing marijuana. Moreover, these laws have disproportionately impacted African American and Latinx communities.
The objective of the MRTA (Marijuana Regulation and Taxation Act) is to establish regulations, oversight, and taxation measures for cannabis, commonly known as marijuana, with the aim of generating substantial revenue. It aims to invest substantially in communities and individuals most affected by cannabis criminalization, addressing the collateral consequences of such criminalization.
The MRTA seeks to prevent cannabis access by individuals under the age of twenty-one, reduce the illegal drug market and associated violent crime, discourage law-abiding citizens’ involvement in the illicit market, eliminate the racially disparate impact of existing cannabis laws, promote new industries, protect the environment, enhance the state’s resilience to climate change, safeguard public health, safety, and welfare, increase employment, and strengthen New York’s agriculture sector.
Hence, the Legislature clearly expressed its belief that marijuana prohibition was a mistake, leading to regrettable consequences, and designed the MRTA to rectify those mistakes and address the associated outcomes.
In line with this objective, the language added to Section 1046(a)(iii) of the Family Court Act through the 2021 amendment aims to counteract a negative consequence of marijuana prohibition: the potential loss of child custody due to a parent’s cannabis use. By prohibiting a finding of neglect based solely on a parent’s marijuana consumption, the added language corrects a flaw in the previous law and relieves parents from suffering the consequences of consuming cannabis. Consequently, it is appropriate to consider the 2021 amendment as remedial in nature.
Furthermore, by making the act effective immediately, the Legislature demonstrated a sense of urgency, which supports retroactive application of the 2021 amendment. Additionally, the language added by the MRTA expressly disallows the presumption of neglect based solely on cannabis use, countering the previous provision of Section 1046(a)(iii), which allowed such a presumption for repeated drug misuse.
This indicates that the 2021 amendment ཞྭwas designed to rewrite an unintended judicial interpretationཛྭ equating mere consumption of cannabis with repeated misuse that produces the specified effects.
In view of the remedial nature of the legislation, along with the additional considerations mentioned above, we conclude that the Legislature intended the 2021 amendment to be applied retroactively. Consequently, we must determine whether the Family Court’s finding of neglect, in this case, was proper under Family Court Act § 1046(a)(iii), as amended in March 2021.
In determining that the subject child was neglected, the Family Court did not make a finding as to whether the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired (§ 1012[f][i]).
Such a finding was obviated because the court relied on the presumption set forth in Family Court Act § 1046, which proves that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a significant impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child (§ 1046[a][iii]). Thus, the order appealed should be affirmed only if the statutory presumption was applied correctly.
Contrary to the mother’s contention, the 2021 amendment does not preclude a determination that the petitioner established a prima facie case of neglect in this case. The 2021 amendment should not be interpreted as preventing any reliance on the misuse of marihuana, no matter how extensive or debilitating, to establish a prima facie case of neglect.
After all, the statute still encompasses the misuse of other legal substances, such as alcoholic beverages and prescription drugs. Based on the plain language of the statute, the 2021 amendment does not prevent a court from finding that there has been a prima facie showing of neglect where the evidence establishes that the subject parent has, in fact, repeatedly misused marihuana in a manner that has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or substantial impairment of judgment, or a substantial manifestation of irrationality. Such a finding is not based on the sole fact that the parent consumes cannabis.
The evidence presented during the fact-finding hearing, including testimonies from the mother and her boyfriend, hospital treatment records, and other medical documents, supports the Family Court’s conclusion that the petitioner has successfully demonstrated the mother’s neglect of the child due to her misuse of marijuana, as defined by Family Court Act § 1046(a)(iii). The Family Court explicitly determined in its order that the mother had misused marijuana, leading to a significant impairment of judgment, irrational behavior, disorientation, and possible incompetence.
The basis for this finding extends beyond the mere fact of the mother’s cannabis consumption (Family Ct Act § 1046[a][iii]). Consequently, it provides a solid foundation for applying the presumption of neglect resulting from repeated drug misuse, as outlined in the statute and modified by the MRTA (Marijuana Regulation and Taxation Act).
Contrary to the mother’s arguments, she failed to prove that she voluntarily and consistently engaged in a drug rehabilitation program prior to the filing of the neglect petition. Furthermore, she did not successfully challenge the petitioner’s initial showing of neglect.
Hence, the Family Court correctly determined that the mother neglected the child in question.
Mia S. v. Michelle C. – NYS3d – , 2022 WL 17480834 (2nd Dep’t. 2022)
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