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MerzelBrigette_Proposal

Proposal and Broad Thesis:

In my note, I will analyze the potential impact that the legalization of marijuana would have on
child welfare in New York State. I propose that the legalization of marijuana in New York will
have minimal impact on child welfare proceedings. While cannabis laws can protect parents
from arrest and prosecution, parents are still at risk of being scrutinized by family courts for their
marijuana use. Therefore, even if marijuana is decriminalized and legalized, state officials can
still prove that marijuana use is harmful to children.

During my internship with The Legal Aid Society’s Juvenile Rights Practice, I observed that
many parents had open ACS cases merely because of their marijuana use. Under the Family
Court Act § 1012, the Administration for Children’s Services (ACS) is required to draw a link
between the alleged marijuana use and the neglect of the child. However, in many cases, ACS
does not draw this link; ACS often asserts that the use of this illegal drug automatically puts
children and families at risk.

Currently in New York, possession of any amount of marijuana in a public place is a class B
misdemeanor and can lead to severe punishments, such as jail time and fines. In states where
marijuana is legalized, such as California, possession of 28.5 grams or less of marijuana is only
punishable by a fine of $100. In states like California, individuals are not severely penalized for
their marijuana use. These liberal laws can be especially beneficial for parents who use
marijuana because if they are found with marijuana, their risk of facing legal repercussions, such
as being flagged by the Department of Family Services (DCFS), is decreased. I will argue that
although cannabis laws will decrease the likelihood that parents are discovered using marijuana,
parents will still be at risk of allegations of neglect and/or abuse because of their substance
abuse. I will also compare alcoholism to marijuana use, and analyze how the legalization of
something does not deem it safe.

My note will compare New York’s marijuana laws to at least two of the nine states where
marijuana is legalized, namely California and Colorado. I will also examine the impact that the
legalization of marijuana had on families in these states. I plan to compare family law cases
where children were deemed neglected because of their parents’ marijuana use, from before and
after marijuana use was legalized. By looking at two different time periods, I will be able to
determine what impact the legalization of marijuana had on these states. Then, I will form
reasonable conclusions based on this analysis.

Targeted Research Questions:

1. What are the marijuana laws?


a. New York?
b. California?
c. Colorado?
2. How do these laws differ from each other?
3. What does New York’s Family Court Act say about substance abuse?
a. Family Court Act § 1012
b. Family Court Act § 1046
MerzelBrigette_Proposal

4. How does ACS and/or Family Court react to parents who use marijuana?
5. What is the difference between marijuana use and marijuana abuse?
6. What are the side effects of marijuana use?
7. How does marijuana (ab)use differ from alcohol (ab)use?
8. If excessive alcohol use results in ACS involvement, would it be different with excessive
marijuana use?

Anticipated Problems:

This area of law is constantly changing, evolving and being researched; I need to be alert of any
new articles that may pop up during the course of my writing. For example, in July 2018,
Governor Andrew Cuomo directed agencies to evaluate the health, public, and economic impact
that the legalization of marijuana would have on New York State. However, my note topic
differentiates from the data in the report; the data in the report explains the health benefits and
risks that marijuana has, on both adults and children. My note will explore the social and familial
impact that the legalization of marijuana will have on the legal field of child welfare. I have set
up alerts on Westlaw, Lexis Nexis, and Google.

Additionally, it will be difficult to gather information about the impact that the legalization of
marijuana has on other states because this is a fairly new topic. However, I will use cases from
before marijuana was legalized and compare it to cases from after marijuana was legalized.

Sources:

1. Nicholson v. Scoppetta, 820 N.E.2d 840, 844 (N.Y. 2004)


2. Matter of Jones v. Jones, 2012 N.Y. Slip Op. 50257(U) (Kings Co. Fam. Ct. 2012).
3. N.Y. Penal Law § 221.05
4. N.Y. Fam. Ct. Act § 1046
5. Cal. Health & Safety Code § 11357
6. Sara E. Payne & Lee Williams, Medical Marijuana in New York: Where We've Been and
Where We're Going, N.Y. St. B.J., July/August 2018, at 16
7. Alice Kwak, Medical Marijuana and Child Custody: The Need to Protect Patients and
Their Families from Discrimination, 28 Hastings Women's L.J. 119 (2017)
8. § 2:20.Misuse of drugs or alcohol, 10 N.Y. Prac., New York Family Court Practice §
2:20 (2d ed.)
9. Marka B. Fleming & Gwendolyn McFadden-Wade, The Unthinkable Choice: The
Constitutional Due Process Right to Parent or the Legal Right to Use Medical
Marijuana, 25 B.U. Pub. Int. L.J. 299, 301 (2016)