Suffolk Cnty. Dep't of Soc. Servs. v. Michelle C. (In re Mia S.)

Decision Date07 December 2022
Docket Number2020-01373,Docket No. N-7854-19
Citation212 A.D.3d 17,179 N.Y.S.3d 732
Parties In the MATTER OF MIA S. (Anonymous). Suffolk County Department of Social Services, respondent; v. Michelle C. (Anonymous), appellant.
CourtNew York Supreme Court — Appellate Division

Glenn Gucciardo, Northport, NY, for appellant.

Dennis M. Cohen, County Attorney, Central Islip, NY (Jacklyn N. Aymong of counsel), for respondent.

Paul K. Siepman, Patchogue, NY, attorney for the child.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, JOSEPH A. ZAYAS, JJ.

OPINION & ORDER

ZAYAS, J.

On March 31, 2021, Family Court Act § 1046(a)(iii) was amended to provide that "the sole fact that an individual consumes cannabis" is not sufficient to constitute prima facie evidence of child neglect. On this appeal from an order finding that the mother neglected the subject child based, at least in part, on the mother's misuse of marihuana, we consider whether the March 31, 2021 amendment to Family Court Act § 1046(a)(iii) (hereinafter the 2021 amendment) should be retroactively applied to events that occurred, and a Family Court decision that was rendered, prior to March 2021.

By petition dated May 31, 2019, the Suffolk County Department of Social Services (hereinafter the petitioner) alleged that the mother had neglected the subject child. The petition asserted that, by abusing drugs and failing to address her mental health issues, the mother placed the subject child at imminent risk of becoming emotionally, mentally, and physically impaired. According to the petition, the mother had a history of abusing cocaine and opiates, she was currently abusing marihuana and her prescribed Xanax

, and during a recent hospitalization, she exhibited paranoia and psychosis, which appeared to be substance induced. After conducting a fact-finding hearing, the Family Court, in an order dated January 10, 2020, found that the petitioner had proved by a preponderance of the evidence that the mother had neglected the subject child. The mother appeals.

In a child neglect proceeding under Family Court Act article 10, the petitioner has the burden of proving neglect by a preponderance of the evidence (see Matter of Tatianna C. [James C.], 195 A.D.3d 1014, 146 N.Y.S.3d 801 ). A neglected child is one "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent ... to exercise a minimum degree of care," inter alia, by "misusing a drug or drugs" ( Family Ct Act § 1012[f][i][B] ). Pursuant to Family Court Act § 1046(a)(iii), "proof that a person repeatedly misuses a drug," under certain circumstances, constitutes "prima facie evidence that a child of ... such person is a neglected child." "In cases where this presumption of neglect is triggered, the petitioner is not required to establish that the child suffered actual harm or was at imminent risk of harm" ( Matter of Jesse W. [Jesse W.], 189 A.D.3d 848, 849–850, 136 N.Y.S.3d 117 [internal quotation marks omitted]).

The 2021 amendment was part of the Marihuana Regulation and Taxation Act (hereinafter the MRTA), which was comprehensive legislation that, inter alia, provided for the regulation and taxation of marihuana and decriminalized its use. Family Court Act § 1046(a)(iii), as amended by the MRTA (L 2021, ch 92, § 58), provides as follows (with the language added by the 2021 amendment appearing in bold type):

"(a) In any hearing under this article and article ten-A of this act:
...
"(iii) proof 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 substantial 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 except that such drug, or alcoholic beverage misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program. Provided however, the sole fact that an individual consumes cannabis, without a separate finding that the child's physical mental or emotional condition was impaired or is in imminent danger of becoming impaired established by a fair preponderance of the evidence shall not be sufficient to establish prima facie evidence of neglect ."

In this case, the mother contends that this Court should apply the 2021 amendment in reviewing 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" ( Landgraf v. USI Film Products, 511 U.S. 244, 264, 114 S.Ct. 1483, 128 L.Ed.2d 229 [internal quotation marks omitted]), there is a competing general rule that statutes are presumed to apply only prospectively, and "will not be construed to have retroactive effect unless their language requires this result" ( id. at 264, 114 S.Ct. 1483 [internal quotation marks omitted]; see Matter of Regina Metro. Co., LLC v. New York State Div. of Hous. & Community Renewal, 35 N.Y.3d 332, 365–367, 130 N.Y.S.3d 759, 154 N.E.3d 972 ). The rule invoked by the mother applies mainly in the context of laws governing matters like jurisdiction and procedural rules, or the propriety of prospective relief, or collateral issues such as attorneys' fees (see Landgraf v. USI Film Products, 511 U.S. at 273–279, 114 S.Ct. 1483 ; Matter of Regina Metro. Co., LLC v. New York State Div. of Hous. & Community Renewal, 35 N.Y.3d at 365–366, 130 N.Y.S.3d 759, 154 N.E.3d 972 ). By contrast, legislation that affects substantive rights, such as a statute that "would impair rights a party possessed when he [or she] acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed," would have retrospective effect if a court were to apply new law existing at the time of the decision, and such legislation is therefore subject to the presumption against retroactive application ( Landgraf v. USI Film Products, 511 U.S. at 280, 114 S.Ct. 1483 ; see Matter of Regina Metro. Co., LLC v. New York State Div. of Hous. & Community Renewal, 35 N.Y.3d at 365, 130 N.Y.S.3d 759, 154 N.E.3d 972 ).

Here, the 2021 amendment did not merely alter a jurisdictional or procedural provision. Rather, the amendment affects the substantive rights of parents by imposing a limitation on the nature of the proof required to establish a prima facie case of neglect. Thus, the 2021 amendment, at least preliminarily, appears to fall into the category of legislation that should not be applied retroactively "unless the Legislature's preference for retroactivity is explicitly stated or clearly indicated" ( Matter of Gleason [Michael Vee, Ltd.], 96 N.Y.2d 117, 122, 726 N.Y.S.2d 45, 749 N.E.2d 724 ). The MRTA does not contain any provision specifying that the act should or should not be applied retroactively.

Nonetheless, the considerations animating the presumption against the retroactivity of statutes include enabling individuals to conform their conduct to the law and protecting them from arbitrary governmental action (see Landgraf v. USI Film Products, 511 U.S. at 265–267, 114 S.Ct. 1483 ). As the United States Supreme Court has explained: "The presumption against statutory retroactivity has consistently been explained by reference to the unfairness of imposing new burdens on persons after the fact. Indeed, at common law a contrary rule applied to statutes that merely removed a burden on private rights by repealing a penal provision (whether criminal or civil); such repeals were understood to preclude punishment for acts antedating the repeal" ( id. at 270–271, 114 S.Ct. 1483 [emphasis omitted]). Here, the 2021 amendment does not impose a burden or penalty upon individuals. It does the opposite; by placing a restriction on the kind of proof that can establish a prima facie case of neglect, the 2021 amendment, at least theoretically, makes it more difficult to impose the burden of a neglect finding upon a parent who uses marihuana.

Although statutory amendments "are presumed to have prospective application" in the absence of an expression of legislative intent that the statute be retroactively applied, it is another axiom of statutory interpretation, and an exception to the presumption against retroactive application, that "remedial legislation should be given retroactive effect in order to effectuate its beneficial purpose" ( Matter of Gleason [Michael Vee, Ltd.], 96 N.Y.2d at 122, 726 N.Y.S.2d 45, 749 N.E.2d 724 ; see Ex parte Collett, 337 U.S. 55, 71, 69 S.Ct. 944, 93 L.Ed. 1207 ; Freeborn v. Smith, 69 U.S. 160, 164, 2 Wall. 160, 17 L.Ed. 922 ; Majewski v. Broadalbin–Perth Cent. School Dist. , 91 N.Y.2d 577, 584, 673 N.Y.S.2d 966, 696 N.E.2d 978 ; Nelson v. HSBC Bank USA, 87 A.D.3d 995, 997, 929 N.Y.S.2d 259 ; Wade v. Byung Yang Kim, 250 A.D.2d 323, 325, 681 N.Y.S.2d 355 ; Coffman v. Coffman, 60 A.D.2d 181, 188, 400 N.Y.S.2d 833 ). A remedial statute is one which is "designed to correct imperfections in prior law, by generally giving relief to the aggrieved party" ( Nelson v. HSBC Bank USA, 87 A.D.3d at 998, 929 N.Y.S.2d 259 [internal quotation marks omitted]; see Matter of Asman v. Ambach, 64 N.Y.2d 989, 991, 489 N.Y.S.2d 41, 478 N.E.2d 182 ). "Classifying a statute as ‘remedial’ does not automatically overcome the strong presumption of prospectivity" ( Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d at 584, 673 N.Y.S.2d 966, 696 N.E.2d 978 ; see Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 237, 115 S.Ct. 1447, 131 L.Ed.2d 328 ; Landgraf v. USI Film Products, 511 U.S. at 285 n. 37, 114 S.Ct. 1483 [statute subjecting defendants...

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