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THE AMENDMENT TO THE FAMILY COURT ACT WHICH PRECLUDES A FINDING OF NEGLECT BASED SOLELY ON MARIJUANA USE SHOULD BE APPLIED RETROACTIVELY; HOWEVER HERE THERE WAS SUFFICIENT EVIDENCE OF MOTHER’S NEGLECT OF THE CHILD BASED UPON HER “ABUSE” (AS OPPOSED TO “USE”) OF MARIJUANA (SECOND DEPT). ​

​The Second Department, in a full-fledged opinion by Justice Zayas, determined (1) the amendment to the Family Court act precluding a finding of neglect based solely on marijuana use should be applied retroactively, and (2) the evidence mother neglected the child based upon abuse of marijuana was sufficient:

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 a 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” … .

… In its order, the Family Court expressly determined that the mother had misused marihuana and “clearly had a substantial impairment of judgment, and/or substantial manifestation of irrationality and was disoriented and/or incompetent.” Since this finding was not based on “the sole fact” that the mother “consumes cannabis” (Family Ct Act § 1046[a][iii]), it provided a sufficient basis on which to apply the presumption of neglect arising from repeated misuse of drugs that is articulated in the statute, as amended … . Matter of Mia S. (Michelle C.), 2022 NY Slip Op 06932, Second Dept 12-7-22

Practice Point: The amendment of the Family Court Act to preclude a finding of neglect based solely on use of marijuana should be applied retroactively. But the amendment does not preclude a finding of neglect based on the “abuse,” as opposed to “use,” of marijuana.

 

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