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KYRA'S LAW - SIGNED DECEMBER 23

BILL NUMBER: S6385B

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to amend the domestic relations law and the executive law, in
relation to court ordered forensic evaluations involving child custody
and visitation

 
PURPOSE OR GENERAL IDEA OF BILL:
  The  purpose  of this bill is to require child custody forensic evalu-
ators that are appointed  by  the  court  to  evaluate  and  investigate
parties  in  a proceeding involving child custody and visitation to: (1)
be a psychologist, social worker or psychiatrist, and (2) undergo  bien-
nial  domestic violence-related training, also established by this bill,
in order qualify for such appointment.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends subdivision 1 of section 240 of the domestic  relations
law to add a new paragraph (a-4) which states that a court may appoint a
child custody forensic evaluator to evaluate and investigate the parties

and  a  child or children in a proceeding, provided such individual is a
psychologist, social worker or psychiatrist who is licensed in the state
of New York and has undergone the required biennial  domestic  violence-
related  training.   The new paragraph requires a child custody forensic
evaluator to-notify the court in which such individual  requests  to  be
considered for such court ordered evaluations; requires such individuals
to  notify  the  court  should they fall out of compliance(regarding the
biennial training  requirement);  and  includes  training  documentation
requirements.

Section  2 amends subdivision three of section five hundred seventy-five
of the executive law to add a new paragraph (n) to  require  the  Office
for  the  Prevention  of  Domestic  Violence (OPDV) to contract with the
not-for-profit entity, the New York  State  Coalition  Against  Domestic
Violence  (NYSCADV)  to  develop  a  training program for psychiatrists,
psychologists and social workers, so that such individuals  may  conduct
court  ordered  forensic evaluations involving child custody and visita-
tion pursuant to the above section. The new paragraph lists  the  topics
that  shall  be  comprise  such  training, including but not limited to:
relevant statutes, case law and psychological  definitions  of  domestic
violence,  coercive control and child abuse; the dynamics and effects-of
domestic violence and child abuse; trauma, particularly as it relates to
sexual abuse and the risks posed to children and the  long-term  dangers
and  impacts  imposed  by the presence of adverse childhood experiences;
and the danger of basing  child  custody  decisions  on  claims  that  a
child's  deficient  or  negative relationship with a parent is caused by
the other parent. The new paragraph requires the issuance of  a  certif-
ication  of completion for such course and requires OPDV to consult with
NYSCADV to determine a reasonable number of training-hours that shall be
required for the first instance such training is provided, and a reason-
able number of training hours that  shall  be  required  for  subsequent
refresher  courses  that  are  provided  to individuals taking them on a
biennial basis.

 
JUSTIFICATION:


According to the Center for Judicial Excellence (CJE), a child  advocacy
not-for-profit  organization  that  promotes judicial accountability and
child safety, more than 700 children across the nation have been  killed
by  a  parent or parental-figure during circumstances involving divorce,
separation,  custody,  visitation  or  child  support  since 2008. Addi-
tionally, CJE has found that at least  ninety-eight  children  in  forty
states  have  been  killed by a parent or parental-figure after a family
court allowed unsupervised contact with the child - after the court  was
informed  beforehand  about  the  parent's  or parental-figure's violent
history, mental illness, or risk of harming a child.

In New York Family Court, custody of a child can be  heavily  influenced
by  court appointed Forensic Evaluators, though their training or educa-
tional and professional experiences vary greatly across the state.  Even
though  these court appointed evaluators typically conduct mental health
evaluations, they are currently  not  required  to  be  licensed  mental
health professionals. They produce forensic reports that are often foun-
dational  in  informing  the court's decision of a custody or visitation
dispute. Currently no mandatory standards or trainings exist  for  court
appointed  evaluators,  nor  are  they established for competence in the
nuances of domestic violence involved child custody  cases.  Tragically,
and despite the existence of an evaluative process, there have been many
instances  in  New  York where children have been killed after the court
granted unsupervised visitation to their murderer.

In an effort to address this deficiency in the court system,  this  bill
would  require  evaluators  appointed  on  behalf  of  the court to be a
psychologist, social  worker  or  psychiatrist  who  has  undergone  the
required  biennial domestic violence-related training. The bill requires
the Office for the Prevention of Domestic Violence  (OPDV)  to  contract
with the New York State Coalition Against Domestic Violence (NYSCADV) to
develop  a  training  program  for  such individuals that covers various
aspects related to domestic violence. As an organization that is  desig-
nated  by the federal Department of Health and Human Services to coordi-
nate statewide improvements within  local  communities,  social  service
systems,  and  programming  regarding the prevention and intervention of
domestic violence, NYSCADV has experience in providing domestic violence
related training and has been included in recent chapters requiring such
training in other sectors (see chapter 715 of 2019 and  chapter  391  of
2019).  With  training  and an awareness of the impact domestic violence
has on victims (among other specific topics), custody evaluators will be
better prepared to provide evaluations that are in the best interest  of
the  child. Finally, this bill's requirements are an ac knowledgement of
a 2018 congressional resolution (H.Con.Res.72), which urged state courts
to make child safety the first priority  of  court  decisions  involving
custody and parenting.

 
LEGISLATIVE HISTORY:

2019-20 - A.9888 - referred to judiciary

 
FISCAL IMPLICATIONS:

Undetermined.

 
EFFECTIVE DATE:
This act shall take effect 180 days after it shall become law; provided,
however,  that  effective  immediately:  the  addition, amendment and/or
repeal of any rule or regulation necessary  for  the  implementation  of
this  act by the chief administrator of the courts, with the approval of
the  administrative  board  of  the  courts,  on  its effective date are
authorized to be made and completed on or before such effective date.

THE LAW OF SNOW REMOVAL

Porter v. MASON AVE. HOLDING CORP., 2022 NY Slip Op 51195 - NY: Supreme Court, Richmond 2022:

"Under common law, a property owner has a duty to maintain their property in a reasonably safe condition. See Buffalino v. XSport Fitness, 2022 NY Slip Op. 00998 (2d Dept. 2022); see also Mowla v. Baozhu Wu, 195 AD3d 706 (2d Dept. 2021). A property owner will be held liable for a slip and fall accident involving snow and ice on its property when they created the dangerous condition which caused the accident or had actual or constructive notice of its existence. See Anderson v. Landmark at Eastview, Inc., 129 AD3d 750 (2d Dept. 2015). However, under the storm-in-progress rule, a property owner, tenant in possession, or snow removal contractor will not be held responsible for accidents caused by snow or ice that accumulates during a storm until an adequate period of time has passed following the cessation of the storm to allow an opportunity to ameliorate the hazards caused by the storm. See Henenlotter v. Union Free Sch. Dist. No. 23, 2022 NY Slip Op 06116 (2d Dept. 2022). If said landowner elects to begin the snow removal process during the continuing storm it must do so with reasonable care, or it could be held liable for creating a hazard or exacerbating the hazardous condition. See Petrocelli v. Marrelli Dev. Corp., 31 A.D 3d 623 (2d Dept. 2006). The mere failure of a property owner to remove all of the snow and ice, without more, does not establish that the risk of harm was increased. See Aronov v. St. Vincent's House. Dev. Fund. Co., Inc. 145 AD3d 648 (2d Dept. 2016). The question of whether a reasonable time has passed may be decided by the court as a matter of law, based upon the circumstances of the case. See Acocal v. City of Yonkers, 179 AD3d 630 (2d Dept. 2020).

.......

After considering the Defendants respective motions the Court finds that they have met their initial burden of establishing a prima facie entitlement to summary judgment. The Expert Affidavit of Mr. Roberts indicates that the wintery mix of precipitation began at 12:45 p.m. (before the incident) and continued until 8:00 or 8:40 p.m. (after the incident). Thus, the storm was "in progress" at 6:00 or 6:30 p.m. when the Plaintiff slipped and fell. As the storm was continuing at the time of the incident the Defendants had no duty to being cleaning operations. See Fitzsimons v. North Shore Univ. Hosp., 205 AD3d 684 (2d Dept. 2022). The fact that the precipitation was not continuous snow is irrelevant as a "wintery mix" is sufficient to satisfy the storm-in-progress doctrine. See Sherman v. New York State Thruway Auth., 27 NY3d 1019 (2016); see also Cohen v. A.R. Fuel Inc., 290 AD2d 640 (3rd Dept. 2002). A property owner is not liable for slip and fall injuries caused by "accumulated snow, rain, ice, sleet, or hail." See Solazzo v. New York City Tr. Auth., 21 AD3d 735 (1st Dept. 2005), affd, 6 NY3d 734 (2005).

As the Defendants have met their burden of establishing an entitlement to summary judgment on the storm-in-progress doctrine, the burden shifts to the Plaintiff to raise a triable issue of fact as to whether there was a storm in progress or whether defendant created or exacerbated the naturally occurring hazardous condition by negligent snow removal efforts. See Lewis v. 311 Realty, LLC, 201 AD3d 591 (1st Dept. 2022); see also DeStefano v. City of New York, 41 AD3d 528 (2d Dept. 2007). Here Plaintiff argues that the storm had ceased by the time of the incident and thus that the storm in progress rule is inapplicable. However, according to the meteorological report provided by Defendants the storm did not cease until hours after the alleged incident. While Plaintiff may have fell during a "lull" in the storm, a lull in a continuing storm does not impose a duty to remove the accumulation of ice and snow before the storm ceases in its entirety. See Johnson v. Pawling Cent. Sch. Dist., 196 AD3d 686 (2d Dept. 2021); see also Fenner v. 1011 Rte. 109 Corp., 122 AD3d 669 (2d Dept. 2014). Plaintiff has offered no evidence to refute the meteorological report which indicates that the storm was ongoing at the time of the incident. While counsel makes certain observations regarding alleged "inconsistencies" in the supporting meteorological data, he has not offered his own expert report to contradict Mr. Robert's expert analysis of that data. Interpretation of meteorological data is beyond the ken of an ordinary person and should be explained by an expert. See Wadsworth Condos LLC v. Dollinger Gonski & Grossman, 114 AD3d 487 (1st Dept. 2014).

Plaintiff's contention that an issue of fact exists as to whether Defendant MDP's snow and ice removal created or exacerbated a dangerous condition is directly refuted by his own deposition testimony that he saw no one shoveling or plowing at the time of the incident and that the snow in the area in which he fell was undisturbed. See Giron v. New York City Hous. Auth., 187 AD3d 603 (1st Dept. 2020). The deposition testimony of Mason Ave.'s Superintendent, Mr. Coyoy, that MDP arrived to clean the snow in the large parking lot at approximately 5:00 or 5:30 p.m., standing alone, is insufficient to establish that they cleaned the specific area where the Plaintiff fell by 6:30, especially considering the Plaintiff's testimony to the contrary. Moreover, even assuming that they did clean the area where the Plaintiff fell, there is simply no evidence, other than mere speculation, that the Defendants' did anything to make naturally occurring condition worse. Speculation and surmise are insufficient to defeat a motion for summary judgment. See Skouras v. New York City Tr. Auth., 48 AD3d 547 (2d Dept. 2008); see also Myrow v. City of Poughkeepsie, 3 AD3d 480 (2d Dept. 2004); Ross v. Lewis, 181 AD3d 423 (1st Dept. 2020).

The storm in progress rule provides a sufficient ground to grant both Defendant's motions. However, Defendant MDP also argues that they owed no legal duty to Plaintiff, a claim only briefly discussed in Plaintiff's opposition. MDP contracted with Mason Ave. to perform snow removal services. A limited contractual undertaking to provide snow removal generally does not render the snow removal contractor liable in tort for the personal injuries of third parties. See Canciani v. Stop & Shop Supermarket Co., LLC, 203 AD3d 1011 (2d Dept. 2022). There are three exceptions to this rule: (1) where the contracting party, in failing to exercise due care, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the performance of the contracting party's duties or (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely. See Espinal v. Melville Snow Contrs., 98 NY2d 136 (2002). Exceptions two and three clearly do not apply, especially considering Plaintiff's allegations that Mason Avenue's agents historically participated in snow removal. Therefore, the only exception that could apply would be if MDP's attempts at snow removal launched the instrument of harm, or in other words, exacerbated the naturally occurring hazardous condition. See Cohen v. City of New York, 209 AD3d 830 (2d Dept. 2022). As discussed above, Plaintiff fails to offer any evidence that MDP cleaned the specific area where the accident occurred. Even assuming they did, Plaintiff fails to allege that MDP undertook any actions that made the naturally occurring hazard worse. See Santos v. Deanco Servs., Inc., 142 AD3d 137 (2d Dept. 2016). Speculation and conjecture are insufficient to defeat a motion for summary judgment. See Crosthwaite v. Acadia Realty Trust, 62 AD3d 838 (2d Dept. 2009)."

PROBLEMS WITH CHILD WELFARE SYSTEM

Experts across the nation have questioned the Adoption and Safe Families Act timelines for seeking termination of parental rights. 

See NBC NEWS: The ‘death penalty’ of child welfare: In 6 months, some parents lose their children forever

THE HISTORY OF STUDENT LOANS AND BANKRUPTCY

Under current law, both federal and private student loans are not dischargeable in bankruptcy unless you can show that your loan payment imposes an "undue hardship" on you, your family, and your dependents. It wasn't always like that.  While the courts ponder the future of the recent student loan forgiveness legislation, the history of student loans and bankruptcy should be considered. An excellent report can be found at When Did Student Loans Become Nondischargeable in Bankruptcy?

BEST WISHES THIS HOLIDAY SEASON

 

AN AFC MUST ZEALOUSLY ADVOCATE FOR CHILD

MATTER OF SLOMA v. Saya, 2022 NY Slip Op 6587 - NY: Appellate Div., 4th Dept. 2022:

"It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the petition is reinstated, and the matter is remitted to Family Court, Onondaga County, for further proceedings in accordance with the following memorandum: In this proceeding pursuant to Family Court Act article 6, the Attorney for the Child (AFC), as limited by her brief, appeals from an order insofar as it dismissed petitioner father's petition seeking to modify the parties' custody arrangement. Family Court determined at the conclusion of the father's presentation of evidence at a trial that he failed to establish a change in circumstances and granted respondent mother's motion to dismiss the father's petition. Initially, we agree with the AFC that, under the circumstances of this case, she has standing to appeal the order (see Matter of Newton v McFarlane, 174 AD3d 67, 71-74 [2d Dept 2019]; cf. Matter of Lawrence v Lawrence, 151 AD3d 1879, 1879 [4th Dept 2017]; Matter of Kessler v Fancher, 112 AD3d 1323, 1323 [4th Dept 2013]).

We agree with the AFC that the child received ineffective assistance of counsel. We therefore reverse the order insofar as appealed from, reinstate the petition, and remit the matter to Family Court for a new trial. Section 7.2 of the Rules of the Chief Judge provides that, in proceedings such as an article 6 custody proceeding where the child is the subject and an AFC has been appointed pursuant to Family Court Act § 249, the AFC "must zealously advocate the child's position" (22 NYCRR 7.2[d]). "[I]n ascertaining the child's position, the [AFC] must consult with and advise the child to the extent of and in a manner consistent with the child's capacities, and have a thorough knowledge of the child's circumstances" (22 NYCRR 7.2[d][1]). "[I]f the child is capable of knowing, voluntary and considered judgment, the [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child's best interests" (22 NYCRR 7.2[d][2]). There are two exceptions, not relevant here, where the child lacks the capacity for knowing, voluntary and considered judgment, or following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child (see 22 NYCRR 7.2[d][3]). In those instances, the AFC is justified in advocating for a position that is contrary to the child's wishes (see id.).

Moreover, a child in an article 6 custody proceeding is entitled to effective assistance of counsel (see Matter of Rivera v Fowler, 112 AD3d 835, 837 [2d Dept 2013]; Matter of Sharyn PP. v Richard QQ., 83 AD3d 1140, 1143 [3d Dept 2011]; Matter of Ferguson v Skelly, 80 AD3d 903, 906 [3d Dept 2011], lv denied 16 NY3d 710 [2011]), which requires the AFC to take an active role in the proceeding (see Matter of Payne v Montano, 166 AD3d 1342, 1343-1345 [3d Dept 2018]; Rivera, 112 AD3d at 837).

Here, the AFC at trial made his client's wish that there be a change in custody known to the court, but he did not "zealously advocate the child's position" (22 NYCRR 7.2[d]; see Payne, 166 AD3d at 1345; see also Matter of Brian S. [Tanya S.], 141 AD3d 1145, 1147 [4th Dept 2016]). He did not cross-examine the mother, the police officers, or the school social worker called by the father, and we agree with the AFC on appeal that the trial AFC's cross-examination of the father was designed to elicit unfavorable testimony related to the father, thus undermining the child's position (see Silverman v Silverman, 186 AD3d 123, 127-128 [2d Dept 2020]; Brian S., 141 AD3d at 1147-1148). His questioning also seemed designed to show that there was no change in circumstances since the entry of the last order. Further, he submitted an email to the court in response to the mother's motion to dismiss in which he stated his opinion that there had been no change in circumstances, which again went against his client's wishes (see generally Brian S., 141 AD3d at 1147). While we conclude that the AFC's actions may have been the result of good intentions, we further conclude that he did not "zealously advocate the child's position" (22 NYCRR 7.2[d]), and thus the child was denied effective assistance of counsel (see Silverman, 186 AD3d at 127-129; Payne, 166 AD3d at 1345; cf. Rivera, 112 AD3d at 837; Matter of Venus v Brennan, 103 AD3d 1115, 1116-1117 [4th Dept 2013]).

In light of our determination, we see no need to address the AFC's further contention on appeal that the father established a change in circumstances."

ICPC AND OUT OF STATE NON-CUSTODIAL PARENTS

MATTER OF DL v. SB, 2022 NY Slip Op 5940 - NY: Court of Appeals 2022:

"CANNATARO, Acting Chief Judge:

The Interstate Compact on the Placement of Children (ICPC or Compact) is an agreement among the states to follow certain procedures in connection with sending children across state borders "for placement in foster care or as a preliminary to a possible adoption" (Social Services Law § 374-a[1][art III][a]). The issue raised on this appeal is whether the ICPC applies to out-of-state, noncustodial parents seeking custody of their children who are in the custody of New York social services agencies. We hold that it does not.

I.

Petitioner father, a North Carolina resident, and respondent mother, a New York resident, are the parents of the subject child. In 2012, respondent Suffolk County Department of Social Services (DSS) removed the child from the custody of mother, who admitted neglecting the child, and placed the child in foster care. Father exercised his right to appear in the neglect proceeding and, in 2013, an application was made under the ICPC to North Carolina for the approval of father's home in that state as a suitable placement for the child. The relevant North Carolina authority denied the ICPC request. The child remained in foster care with the goal of reunification with mother and, according to father, he maintained contact with and continued to visit with the child. Thereafter, in 2017, father commenced these custody proceedings, arguing that it was in the child's best interests to award him sole custody. DSS argued that the child could not be placed with father in light of the North Carolina authority's 2013 refusal to consent to the placement.

Family Court dismissed father's petitions without conducting a hearing. The court held in pertinent part that the requirements of the ICPC applied to placement of the child with father, even though he is an out-of-state noncustodial parent, because the child was in the custody and care of DSS in New York. The court also rejected father's claim that the ICPC is unconstitutional to the extent that it purports to apply to a noncustodial parent's petition for custody of that parent's child. Father appealed.

The Appellate Division affirmed (183 AD3d 565 [2nd Dept 2020]), holding that Family Court properly determined that the ICPC applied because "the child was in the custody of DSS and . . . father resided in North Carolina" (id. at 566). The Court concluded that the petitions for custody were correctly dismissed without a hearing inasmuch as the relevant North Carolina authority denied approval of father's 2013 ICPC request (id.).

We granted father leave to appeal (37 NY3d 901 [2021]) and now reverse.^[1]

II.

The ICPC is an agreement among the 50 states, the District of Columbia, and the U.S. Virgin Islands. It is a non-federal agreement and is "construed as state law" in each adopting state (McComb v Wambaugh, 934 F2d 474, 479 [3d Cir 1991]). Governor Rockefeller approved New York's entry into the ICPC, which has since been codified in Social Services Law § 374-a (see Governor's Approval Mem, Bill Jacket, L 1960, ch 708).

The ICPC governs the "interstate placement of children" (Social Services Law § 374-a[1] [art I]) and "was designed to promote cooperation among [s]tates in providing each child with the maximum opportunity to be placed in a suitable environment with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care" (Matter of Shaida W., 85 NY2d 453, 458 [1995] [internal quotation marks, ellipsis, brackets, and citation omitted]). The Compact was further intended to provide a state receiving a child with a "full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child" (Social Services Law § 374-a[1] [art I][b]) and to enable a sending state to "obtain the most complete information on the basis of which to evaluate a projected placement before it is made" (id. § 374-a[1] [art I][c]). The ICPC also promotes "`appropriate jurisdictional arrangements for the care of the children involved'" (Matter of Shaida W., 85 NY2d at 459, quoting Mem of Jud Conf of State of NY, Bill Jacket, L 1960, ch 708) and "was designed to prevent States from unilaterally `dumping' their foster care responsibilities on other jurisdictions" (id.).

The ICPC provides at the outset that it applies when a state agency seeks to send children to a receiving state to be placed in foster care or for possible adoption. Specifically, article III of the ICPC provides:

"(a) No sending agency shall send . . . into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article . . .

"(b) Prior to sending . . . any child . . . into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice . . ." (emphasis added).

(Social Services Law § 374-a [art III][a], [b]). "Placement," in turn, is defined as "the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution" (id. § 374-a[art II][d]).

The Appellate Division Departments have disagreed regarding the applicability of the ICPC to noncustodial parents who reside outside New York. The Second Department has repeatedly applied the ICPC to out-of-state noncustodial parents, holding that "[w]here the custody of a child who is under the supervision of the Commissioner [of Social Services] is transferred to the custody of a parent or relative in another state, the provisions of the ICPC apply" (Matter of Alexus M. v Jenelle F., 91 AD3d 648, 650-651 [2d Dept 2012]; see Matter of Faison v Capozello, 50 AD3d 797, 797 [2d Dept 2008]; Matter of Tumari W. v Lynell W., 65 AD3d 1357, 1358-1359 [2d Dept 2009]; Matter of Keanu Blue R., 292 AD2d 614, 614-615 [2d Dept 2002]). By contrast, the First Department has expressly declined to follow the Second Department's interpretation of the ICPC and, instead, has held that the ICPC "does not apply" to out-of-state noncustodial parents, reasoning that the plain language of the ICPC limits its application to placements in foster care or adoptive settings (Matter of Emmanuel B. [Lynette J.], 175 AD3d 49, 52 [2019], lv dismissed 34 NY3d 1036 [2019]). The Third Department has recently endorsed the First Department's approach, albeit in dicta (see Matter of David Q. v Schoharie County Dept. of Social Servs., 199 AD3d 1179, 1181 n [3d Dept 2021], lv denied 38 NY3d 901 [2022]). We are now called on to resolve the disagreement regarding ICPC applicability to noncustodial parents.

III.

"It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the [l]egislature" and, because "the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (Majewski v Broadalbin—Perth Cent. School Dist., 91 NY2d 577, 583 [1998] [internal quotation marks and citation omitted]). Moreover, "where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used" (Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208 [1976]). "`Absent ambiguity the courts may not resort to rules of construction to [alter] the scope and application of a statute' because no such rule `gives the court discretion to declare the intent of the law when the words are unequivocal'" (Kuzmich v 50 Murray St. Acquisition LLC, 34 NY3d 84, 91 [2019], cert denied ___ US ___, 140 S Ct 904 [2020], quoting Bender v Jamaica Hosp., 40 NY2d 560, 562 [1976]).

By its terms, the ICPC governs the out-of-state "placement" of children "in foster care or as a preliminary to possible adoption" (Social Services Law § 374-a[1] [art III][a] & [b]). The language of the statute thus unambiguously limits its applicability to cases of placement for foster care or adoption—which are substitutes for parental care that are not implicated when custody of the child is granted to a noncustodial parent. Indeed, applying the ICPC to noncustodial parents would be inconsistent with the statutory requirement that, when a child is placed pursuant to the ICPC, "[t]he sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement" (Social Services Law § 374—a[1] [art V][a]). As the United States Court of Appeals for the Third Circuit observed, "[t]o construe the return of a child to [a] parent as a `placement' within the Compact would result in the anomalous situation of imposing a financial obligation upon a sending state that supersedes parents' duty to support their children" (McComb, 934 F2d at 480). In short, as many courts in other states have concluded, there is nothing in the statutory language to indicate that the ICPC was intended to apply to out-of-state parents seeking custody of their children and the statutory text confines application of the ICPC to children placed in foster care or preliminary adoptive homes (see e.g. A.G. v Cabinet for Health and Family Services, 621 SW3d 424, 432 [Ky 2021]; In re R.S., 470 Md 380, 404, 235 A3d 914, 928 [2020]; In re Emoni W., 305 Conn 723, 735, 48 A3d 1, 7 [2012]; In re Alexis O., 157 NH 781, 787, 959 A2d 176, 182 [2008]; Arkansas Dept. of Human Services v Huff, 347 Ark 553, 563, 65 SW3d 880, 888 [2002]; McComb, 934 F2d at 481; Matter of J. B., 310 Or App 729, 744, 489 P3d 598, 607 [Or Ct App 2021]; Matter of B.L.P., 91 NE3d 625, 630 [Ind Ct App 2018]; In re C.B., 188 Cal App 4th 1024, 1032, 116 Cal Rptr 3d 294, 299 [Cal Ct App 2010]).

Our decision in Matter of Shaida W. (85 NY2d 453 [1995]) does not compel a contrary conclusion. In that case, the question before the Court was whether the ICPC applied when children, who were in the care and custody of a New York social services agency, were taken to another state by their grandmother after the agency placed the children into temporary foster care with the grandmother. Although article VIII (a) provides that the ICPC does not apply to "[t]he sending or bringing of a child into a receiving state by [a] parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or [a] guardian and leaving the child with any such relative or non-agency guardian in the receiving state" (Social Services Law § 374—a[1] [art VIII][a]), we explained that "the children were not legally `sent' to California by their grandmother" (Matter of Shaida W., 85 NY2d at 460). Rather, "[t]he official custodian" of the children was the "Department of Social Services of New York City," and it was the agency that "authorized the children to be `sent'" to California within the meaning of the statute (id.). That is, the children were sent by a social services agency to a "kinship foster care placement" in another state (Matter of Emmanuel B., 175 AD3d at 58) and, as such, this Court concluded that the ICPC applied (Matter of Shaida W., 85 NY2d at 460-461). Here, in contrast, placing a child with an out-of-state parent does not involve foster care or adoption and, thus, Shaida W. does not control.

IV.

Our reading of the ICPC as being applicable only to placement of a child for foster care or as a preliminary to adoption, and not to custody of a noncustodial parent, comports with the intent reflected in the Compact's legislative history and the underlying statutory purpose. "[N]othing in the language of the statute or the legislative history . . . indicate[s] that the ICPC was ever intended to address any individual other than an out-of-state foster or adoptive parent" (Matter of Emmanuel B., 175 AD3d at 56 [citations omitted]; see also Mem of Dept of Social Welfare, Bill Jacket, L 1960, ch 708, at 23 [explaining that the ICPC was intended to regulate the sending of children out of state "for placement in foster care" and "for the purpose of adoption"]; Budget Rep. on Bills, id. at 12 [observing that the statute "would broaden the placement field and provide greater opportunity for the placement in foster homes or adoption homes of the children in institutions"]). Further, an interpretation of the ICPC as applicable to noncustodial parents would be inconsistent with other components of New York's statutory framework governing child protection (see Matter of Jamie J. [Michelle E.C.], 30 NY3d 275, 284 [2017]), which overwhelmingly reflects "the preeminence of the biological family" (Matter of Michael B., 80 NY2d 299, 313 [1992]) and "embrace[s] a policy of keeping biological families together" whenever safely possible (Nicholson v Scoppetta, 3 NY3d 357, 374 [2004] [internal quotation marks omitted]; see Social Services Law § 384-b[1][ii]). In that regard, this Court has long acknowledged the Legislature's "fundamental social policy choice[,] . . . binding on this Court" to structure New York's foster care scheme around the right of parents "to the care and custody of a child, superior to that of others, unless the parent has abandoned that right or is proven unfit" (Matter of Michael B., 80 NY2d at 308-09).^[2]

We recognize that our interpretation of the ICPC conflicts with "Regulation 3" promulgated by the Association of Administrators of the Interstate Compact on the Placement of Children (AAICPC). Specifically, the AAICPC—an entity comprised of officials designated by each member state to coordinate ICPC matters (see Social Services Law § 374-a [art VII])—amended Regulation 3(2)(a) to "provide guidance in navigating the ICPC regulations and to assist its users in understanding which interstate placements are governed by, and which are exempt from, the ICPC" (American Public Human Services, ICPC Regulations, https://aphsa.org/AAICPC/Resources.aspx [last accessed, Oct 18, 2022]]). Regulation 3, as amended effective October 1, 2011, states in pertinent part that compliance with the ICPC is required for "Placements with parents and relatives when a parent or relative is not making the placement" (id. [emphasis added]). However, in light of our conclusion that the relevant text of the ICPC unambiguously confines its application to foster care and preliminary adoptive homes, Regulation 3 (2) (a) is inconsistent with its enabling legislation and, therefore, could not be given effect (cf. Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 [2004] [an agency cannot adopt regulations that are "inconsistent with the statutory language or its underlying purposes"]; see Matter of R.S., 470 Md at 404, 412 ["(A)ny regulation purporting to expand the application of the ICPC to out-of-state placements with a non-custodial, noncustodial parent is impermissible and will not be given the force of law"]; Matter of Emoni W., 305 Conn at 740-742; Matter of Alexis O., 157 NH at 787, 789; Ark. Dept. of Human Servs., 347 Ark at 563; McComb, 934 F2d at 481-482).^[3]

Although the ICPC does not apply to placement with a parent, the Family Court Act contains other effective means to ensure the safety of a child before awarding custody to an out-of-state parent. Family Court retains jurisdiction over custody proceedings and has a broad array of powers under the Family Court Act to ensure a child's safety. Among other things, Family Court can hold hearings and request courtesy investigations and reports from the local social service agencies or department of probation in order to make determinations regarding a child's best interests. Additionally, rather than awarding an out-of-state parent full custody, Family Court Act § 1052 (a) provides for other dispositional options, including release to a parent with supervision. Similarly, Family Court may grant a temporary order of custody or guardianship to a noncustodial parent (see Family Court Act § 1017[2][a][i]; see also § 1055), which requires that a parent submit to Family Court's continuing jurisdiction and comply with the terms and conditions of the court's order—which may include making the child available for visits with social services officials (see Family Ct Act § 1017[3]). In such instances, the case remains on the court's calendar and the court maintains jurisdiction over the case until the child is discharged from placement and all orders regarding supervision, protection or services have expired (see Family Ct Act § 1088).

VI.

In conclusion, giving effect to the clear language of the ICPC as codified in Social Services Law § 374-a, we hold that the ICPC does not apply to out-of-state noncustodial parents seeking custody of their children. Accordingly, the order of the Appellate Division should be reversed, without costs, and the petitions reinstated.

Order reversed, without costs, and petitions reinstated. Opinion by Acting Chief Judge Cannataro. Judges Rivera, Garcia, Wilson, Singas and Troutman concur.

[1] This appeal is now moot because, among other things, during its pendency, father surrendered his parental rights to the subject child in this case. We nevertheless review the significant issue raised under the exception to the mootness doctrine (see City of New York v Maul, 14 NY3d 499, 507 [2010]; Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]).

[2] This Court has also recognized that "[t]he State may not deprive a natural parent of the right to the care and custody of a child absent a demonstration of abandonment, surrender, persisting neglect, unfitness or other like behavior evincing utter indifference and irresponsibility to the child's well-being" (Matter of Marie B., 62 NY2d 352, 358 [1984]; see Matter of Bennett v Jeffreys, 40 NY2d 543, 545-546 [1976]).

[3] The parties here have not raised a challenge to the validity or the legal effect of AAICPC Regulation 3." 

A HAPPY HOLIDAY HOUSE CLOSING

 Some law work has the best rewards.

HAPPY HANNUKAH

 

MORTGAGE FORECLOSURE - RPAPL 1304 AND FEDERAL PREEMPTION

DEUTSCHE BANK NATL. TRUST CO. v. ABER, 2022 NY Slip Op 51036 - NY: Supreme Court, Rockland 2022:

"Turning to the merits of the RPAPL 1304 defense itself, the Court need not belabor the issues. Strict compliance with the requirements of RPAPL 1304 is a condition precedent to the commencement of a foreclosure action (Kessler, 202 AD3d at 14; see CV XVII, LLC v Trippiedi, 187 AD3d 847, 850 [2d Dept 2020]; US Bank, N.A. v Haliotis, 185 AD3d 756, 758 [2d Dept 2020]). Plaintiff's RPAPL 1304 notice included extensive language that RPAPL 1304(1) does not specify for inclusion in a pre-commencement notice. Plaintiff does not dispute that the envelope conveying plaintiff's RPAPL 1304 notice transmitted this additional language. RPAPL 1304(2) is clear that the pre-commencement notice "required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice." Additional language not "required by this section" violates the separate-envelope requirement as Kessler and its progeny have construed it over a dozen times in recent months (see e.g. JPMorgan Chase Bank, N.A. v Dedvukaj, ___ AD3d ___, 2022 NY Slip Op 04541 [2d Dept, Jul 13, 2022]; U.S. Bank, N.A. v Lanzetta, ___ AD3d ___, 2022 NY Slip Op 04322 [2d Dept, Jul 6, 2022]; Wells Fargo Bank, N.A. v Bedell, 205 AD3d 1064 [2d Dept, May 25, 2022]; HSBC Bank USA, N.A. v Hibbert, 205 AD3d 783, 784 [2d Dept, May 11, 2022]; US Bank, N.A. v Drakakis, 205 AD3d 756, 757 [2d Dept, May 4, 2022]; Bank of NY Mellon v Govan, 204 AD3d 878 [2d Dept, Apr. 20, 2022]; HSBC Bank USA, N.A. v Jahaly, 204 AD3d 648 [2d Dept, Apr. 6, 2022]; US Bank, N.A. v Hinds, 203 AD3d 1210 [2d Dept, Mar. 30, 2022]; Deutsche Bank Natl. Trust Co. v Bancic, 203 AD3d 1130 [2d Dept, Mar. 30, 2022]; Deutsche Bank Natl. Trust Co. v Salva, 203 AD3d 700 [2d Dept, Mar. 2, 2022]; US Bank, N.A. v Kaplan, 202 AD3d 1144 [2d Dept, Feb. 23, 2022]; Sirianni, 202 AD3d at 702; DeFeo, 200 AD3d at 107; Dente, 200 AD3d at 1025). As such, defendant carries his prima facie burden to demonstrate entitlement to judgment sustaining his RPAPL 1304 affirmative defense and, on that basis, obtain summary judgment dismissing this action.

In opposition, plaintiff argues that an additional notice conveying federally required materials inside an RPAPL 1304 envelope cannot violate Kessler and its progeny under two recent cases sounding in federal preemption (see CIT Bank, N.A. v Neris, ___ F Supp 3d ___, 2022 WL 1799497 [SD NY, Jun 2, 2022]); Bank of NY Mellon v Luria, ___ Misc 3d ___, 2022 NY Slip Op 22218 [Sup Ct Putnam Co, Jul 18, 2022] ["Luria"]). The thrust of Neris and Luria was that a residential foreclosure plaintiff is a debt collector under the Federal Debt Collection Practices Act ("FDCPA") (see 15 USC § 1692a[6][A], [F]; see also Cohen v Rosicki, Rosicki & Assocs., 897 F3d 75 [2d Cir 2018], cf. Obduskey v McCarthey & Holthus LLP, ___ US ___, 139 S Ct 1029 [2019]), and therefore must issue a so-called FDCPA "mini-Miranda" warning on its "initial communication" to the debtor to collect on that debt (see 15 USC § 1692e[11]; cf. 15 USC § 1692a[11] [excluding formal pleadings from FDCPA "mini-Miranda" requirement]). The argument continues that an RPAPL 1304 notice constituting a debt-collection communication therefore must convey this "mini-Miranda" warning, so under the Supremacy Clause (see US Const, art VI, cl 2), the separate-envelope requirement of RPAPL 1304(2)—and Kessler and its progeny construing it—must yield to the FDCPA.

Plaintiff's argument fails for numerous reasons. One is that the extraneous language in plaintiff's RPAPL 1304 notice far exceeds the FDCPA "mini-Miranda" warning by including advisories about efforts by the State and City of New York to expand homeowner counseling services, and other advice having nothing to do with the FDCPA. Another is that plaintiff fails to show that anything in RPAPL 1304, or any other statute whether federal or state, requires that the 90-day pre-commencement notice of RPAPL 1304(1) must be the first debt-collection notice that a plaintiff sends in connection with an impending foreclosure. By its terms, the FDCPA preempts inconsistent state laws only to the extent of the inconsistency (see 15 USC § 1692n). Because a foreclosure plaintiff can comply with the FDCPA "mini-Miranda" warning prior to sending an RPAPL 1304 notice, there is no facial conflict between the two statutes so as to preempt RPAPL 1304.

Even if, theoretically, there could be a facial conflict between the FDCPA's "mini-Miranda" requirement and and RPAPL 1304, plaintiff fails to show the further preemption requirement of FDCPA remedial superiority. While the contours of FDCPA preemption have been hotly contested (see generally Arellano v Clark County Collection Serv., LLC, 875 F3d 1213 [9th Cir 2017]; Aker v Americollect, Inc., 854 F3d 397 [7th Cir 2017]), one clear agreement among the cases takes on face value the FDCPA's explicit language, and thus congressional intent, not to preempt any state law whose protection "affords any consumer [] greater than the protection provided by [the FDCPA]" (15 USC § 1692n). Thus, the typical section 1692n preemption analysis turns on which law accords superior protection to the class of consumers who are the respective laws' intended beneficiaries (see e.g. McDermott v Marcus, Erico, Emmer & Brooks, P.C., 775 F3d 109 [1st Cir 2014]; Desmond v Phillips & Cohen Assocs., Ltd., 724 F Supp 2d 562 [WD Pa 2010]; Yang v DTS Fin. Group, 570 F Supp 2d 1257, 1261 [SD Cal 2008]; Alkan v Citimortgage, Inc., 336 F Supp 2d 1061 [ND Cal 2004]).

Here, plaintiff fails to show that the FDCPA accords superior consumer protection relative to RPAPL 1304 to the class of residential foreclosure defendants who are the statute's intended beneficiaries. Moreover, this Court is skeptical that any residential foreclosure plaintiff could make that showing. The FDCPA "mini-Miranda" warning requires only that a debt collector specify on "initial communication" with the alleged debtor "that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose," and that future communications specify their origin from a debt collector attempting to collect a debt (15 USC § 1692e[11]). These forced disclosures inform debtors about who the collector is and the purpose for which information will be used. By sharp contrast, the RPAPL 1304 notice gives alleged mortgage debtors concrete tools to avoid litigation and keep their homes—including a payoff amount, a 90-day period in which to make workout options, a list of free and trained housing counselors in their area prepared to offer assistance, contact information for the Department of Financial Services and Office of the Attorney General, and a list of specific rights (see RPAPL 1304[1]). The numerosity and breadth of these RPAPL 1304 protections accord far greater consumer protections than the FDCPA "mini-Miranda" warning alone, and thus, this Court finds that the FDCPA does not preempt RPAPL 1304 under the FDCPA's own terms (see 15 USC § 1692n).

To be sure, two courts have credited the argument that RPAPL 1304 does not accord greater protections than the FDCPA in relation to mortgage debt collection, and therefore the latter preempts the former (see CIT Bank, N.A. v Neris, ___ F Supp 3d ___, 2022 WL 1799497 [SD NY, Jun 2, 2022]); Bank of NY Mellon v Luria, ___ Misc 3d ___, 2022 NY Slip Op 22218 [Sup Ct Putnam Co, Jul 18, 2022] ["Luria II"]). Leaving aside that plaintiff does not make a substantial record showing on this issue but mainly cites to these two cases, this Court finds substantial prudential reasons why it could not follow Neris and Luria even were it inclined to do so.

Before the Luria II court was the volume of Kessler case law binding on the trial courts of the Second Department, including Kessler itself, which addressed the FDCPA mini-Miranda issue in relationship with the RPAPL 1304(2) separate-envelope requirement. Following fast on Kessler's heels, Lanzetta, Siriani and Drakakis consistently reaffirmed that RPAPL 1304 notices transmitting the FDCPA "mini-Miranda" warning, or consumer information about bankruptcy, thereby violate the separate-envelope requirement. Neither plaintiff here, nor Luria II, addressed the prudential issues that would arise if this Court, or any others bound to apply clear Appellate Division precedents, could set aside those precedents in the manner plaintiff requests.^[2]

As for Neris, if federal preemption considerations are to pull Kessler and its progeny from the ground root and branch, only the New York Court of Appeals can do so—a result the Kessler court itself invited that Court to consider (see NY Const, art VI, § 3[b][6]; CPLR 5602[a][1][i]). It is not for this Court to predict how the Court of Appeals might decide the pending Kessler appeal much less predict that the Court of Appeals will overturn Kessler. That prerogative lies with federal courts that, in applying New York law, properly may disregard Appellate Division decisions "upon persuasive evidence that the New York Court of Appeals, which has not ruled on [the issues presented], would reach a different conclusion" (AEI Life LLC v Lincoln Benefit Life Co., 892 F3d 126, 139 n15 [2d Cir 2018], quoting Pahuta v Massey-Ferguson, Inc., 170 F3d 125, 134 [2d Cir 1999]). Such is precisely what the U.S. District Court did in Neris, which predicted that the New York Court of Appeals would overturn Kessler and, on that basis, declined to follow Kessler and instead held that the FDCPA preempts the RPAPL 1304(2) separate-envelope requirement (see Neris, ___ F Supp 3d ___, 2022 WL 1799497 at *5-6). Whether or not Neris was correct, this Court must follow Kessler and its progeny unless and until the New York Court of Appeals determines otherwise.

For the above reasons, this Court respectfully parts ways with Luria II and prudentially cannot follow Neris. Applying the law that this Court is bound to follow, this Court cannot grant plaintiff's preemption argument. Instead, under Kessler and its progeny, this Court concludes that plaintiff's RPAPL 1304 notice is fatally defective for failure to satisfy the separate-envelope requirement of RPAPL 1304(2). Defendant therefore is correct that plaintiff cannot carry its burden to prove strict compliance with RPAPL 1304. Because plaintiff's proof of such strict compliance is a condition precedent to commence this action, defendant's cross motion granting summary judgment on his RPAPL 1304 defense is granted, and this action must be dismissed (see DeMarco, 205 AD3d at 945; Dennis, 181 AD3d at 866; Offley, 170 AD3d at 1241; DePasquale, 113 AD3d at 596). It follows that plaintiff's summary judgment motion must be denied as moot."

CANNABIS AND ABUSE & NEGLECT

MATTER OF MIA S., 2022 NY Slip Op 6932 - NY: Appellate Div., 2nd Dept. 2022:

"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 AD3d 1014). 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 AD3d 848, 849-850 [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 US 244, 264 [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 [internal quotation marks omitted]; see Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 365-367). 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 US at 273-279; Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d at 365-366). 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 US at 280; see Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d at 365).

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 NY2d 117, 122). 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 US at 265-267). 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 [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 NY2d at 122; see Ex parte Collett, 337 US 55, 71; Freeborn v Smith, 69 US 160, 164; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 584; Nelson v HSBC Bank USA, 87 AD3d 995, 997; Wade v Byung Yang Kim, 250 AD2d 323, 325; Coffman v Coffman, 60 AD2d 181, 188). 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 AD3d at 998 [internal quotation marks omitted]; see Matter of Asman v Ambach, 64 NY2d 989, 991). "Classifying a statute as `remedial' does not automatically overcome the strong presumption of prospectivity" (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d at 584; see Plaut v Spendthrift Farm, Inc., 514 US 211, 237; Landgraf v USI Film Products, 511 US at 285 n 37 [statute subjecting defendants to new damages liability is not "the sort of `remedial' change that should presumptively apply in pending cases"]). Nonetheless, this principle of statutory construction serves as a "navigational tool[ ]," or a guide in the search for legislative intent, at least "where better guides are not available" (Majewski v Broadalbin-Perth Cent. School Dist, 91 NY2d at 584 [internal quotation marks omitted]). "Other factors in the retroactivity analysis include whether the Legislature has made a specific pronouncement about retroactive effect or conveyed a sense of urgency; whether the statute was designed to rewrite an unintended judicial interpretation; and whether the enactment itself reaffirms a legislative judgment about what the law in question should be" (Matter of Gleason [Michael Vee, Ltd.], 96 NY2d at 122).

In enacting the MRTA and creating the Cannabis Law, a new chapter of the Consolidated Laws of New York (see L 2021, ch 92, § 2), the Legislature made the following statement of its findings and intent:

"The legislature finds that existing marihuana laws have not been beneficial to the welfare of the general public. Existing laws have been ineffective in reducing or curbing marihuana use and have instead resulted in devastating collateral consequences including mass incarceration and other complex generational trauma, that inhibit an otherwise law-abiding citizen's ability to access housing, employment opportunities, and other vital services. Existing laws have also created an illicit market which represents a threat to public health and reduces the ability of the legislature to deter the accessing of marihuana by minors. Existing marihuana laws have disproportionately impacted African-American and Latinx communities.

"The intent of this act is to regulate, control, and tax marihuana, heretofore known as cannabis, generate significant new revenue, make substantial investments in communities and people most impacted by cannabis criminalization to address the collateral consequences of such criminalization, prevent access to cannabis by those under the age of twenty-one years, reduce the illegal drug market and reduce violent crime, reduce participation of otherwise law-abiding citizens in the illicit market, end the racially disparate impact of existing cannabis laws, create new industries, protect the environment, improve the state's resiliency to climate change, protect the public health, safety and welfare of the people of the state, increase employment and strengthen New York's agriculture sector" (Cannabis Law § 2).

Thus, the Legislature essentially expressed the view that marihuana prohibition had been a mistake, with unfortunate consequences, and that the MRTA was designed to correct that mistake and to address those consequences. Consistent with this objective, the language added to Family Court Act § 1046(a)(iii) by the 2021 amendment seeks to counteract one ill effect of marihuana prohibition—potential loss of custody of a child —by prohibiting a finding of neglect that is based solely on a parent's marihuana use. In keeping with the Legislature's stated intent, the added language corrects an imperfection in the prior law and relieves parents of a negative consequence flowing from the mere fact that they consume cannabis. Accordingly, it is appropriate to characterize the 2021 amendment as remedial in nature.

Furthermore, by declaring the act effective immediately (see L 2021, ch 92, § 64), the Legislature evinced a sense of urgency, which favors giving retroactive effect to the 2021 amendment (see Matter of Gleason [Michael Vee, Ltd.], 96 NY2d at 122; Brothers v Florence, 95 NY2d 290, 299; Nelson v HSBC Bank USA, 87 AD3d at 998). In addition, while section 1046(a)(iii) previously permitted a presumption of neglect where a parent repeatedly misuses a drug to an extent that it produces certain specified effects, the language added to the statute by the MRTA expressly precludes such a presumption based on the sole fact that an individual consumes cannabis. This indicates that the 2021 amendment "was designed to rewrite an unintended judicial interpretation" equating mere consumption of cannabis with repeated misuse that produces the specified effects (Matter of Gleason [Michael Vee, Ltd.], 96 NY2d at 122; see Brothers v Florence, 95 NY2d at 299; Nelson v HSBC Bank USA, 87 AD3d at 998).

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" (id. § 1012[f][i]). Such a finding was obviated because the court relied on the presumption set forth in Family Court Act § 1046, under which "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" (id. § 1046[a][iii]). Thus, the order appealed from should be affirmed only if the statutory presumption was properly applied.

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 a substantial impairment of judgment, or a substantial manifestation of irrationality" (id.). Such a finding is not based on "the sole fact" that the parent "consumes cannabis" (id.).

The evidence presented at the fact-finding hearing, which included the testimony of the mother and her boyfriend, hospital treatment records, and other medical records, supports the Family Court's determination that the petitioner met its burden of proving that the mother neglected the child by her misuse of marihuana in a manner and to the extent contemplated by Family Court Act § 1046(a)(iii) (see Matter of Jesse W. [Jesse W.], 189 AD3d at 850; Matter of Rylee K. [Robert K.], 186 AD3d 1689, 1690). 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 by the MRTA.

Contrary to the mother's further contentions, she failed to establish that she was voluntarily and regularly participating in a drug rehabilitative program before the neglect petition was filed (see id.; Matter of Christian G. [Alexis G.], 192 AD3d 1027, 1029; Matter of Messiah C. [Laverne C.], 95 AD3d 449, 450) and failed to rebut the petitioner's prima facie showing of neglect (see Matter of Jonathan E. [John E.], 149 AD3d 1197, 1200; Matter of Arthur S. v Rose S., 68 AD3d 1123, 1124)."

THE POWER OF THE CO-OP BOARD AND THE BUSINESS JUDGMENT RULE

 

MATTER OF SCHULTE, 2022 NY Slip Op 34000 - NY: Surrogate's Court, New York 2022:

"As this court held in its April 2016 decision, the Board's determination of the request to transfer the shares here was governed by the business judgment rule which prohibits judicial inquiry into cooperative board actions "taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes" (Gonzalez v Been, 145 AD3d 434, 435 [1st Dept 2016]). To permit general, but non-discriminatory, assertions of dislike of a possible transferee of cooperative shares (or here, a possible resident as a beneficiary of a trust to which the shares were to be transferred) to form the basis for a claim of bad faith if a board fails to approve a share transfer would change the business judgment rule beyond recognition. Here, Sandra has provided no authority for such a dramatic alteration of the rule and the court is aware of none that supports her view (see Cahill v Jordan Home Services, LLC, 145 AD3d 847 [2d Dept 2016] [legally unviable claim properly denied as pleading amendment]).^[5] Because Sandra did not seek to add allegations supporting a conclusion of improper or discriminatory conduct, but merely personal dislike of her individually as a nonshareholder, and in light of the prejudicial delay noted above, the court accordingly denied her leave to amend the cross-claim.

The motion for summary judgment by 1125 Park sought an order dismissing the Executor's original cross-claim, which sounded in breach of fiduciary duty based on improper favoritism towards a Board member who was interested in purchasing decedent's shares. As the court held on the record on April 20, 2021, on this issue, 1125 Park established, prima facie, its entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980] [setting forth the summary judgment standard]), by offering admissible evidence that 1125 Park's Board had no knowledge that a Board member desired to purchase the shares allocated to decedent's apartment.^[6] Thus, 1125 Park demonstrated that, even if a member of the Board had wanted to purchase decedent's shares, such fact could not have had an impact on the Board's decision to deny the transfer of the shares to the Trust (see Park Royal Owners, Inc. v Glasgow, 19 AD3d 246 [1st Dept 2005]). In opposition, despite discovery on this issue, Sandra failed to provide evidence raising a material question of fact that the Board sought to favor such member improperly. Her self-serving speculation and conclusory allegations are insufficient to forestall summary dismissal of the cross-claim (see e.g. Schloss v Steinberg, 100 AD3d 476 [1st Dept 2012]; Beer Sheva Realty Corp. v Ponjnitayapanu, 214 AD2d 352 [1st Dept 1995]; X.L.O. Concrete Corp. v O'Connor, 183 AD2d 487 [1st Dept 1992])."