In the Matter of Arisleda Duarte, Respondent,v.City of New York, Appellant.

Brief

N.Y.February 14, 2013

STATE OF NEW YORK COURT OF APPEALS Queens Cly. Supreme Court Index No. 7627/11 x x x x Petitioner-Respondent, -against- For an Order Pursuant to Article 78 of the New York Civil Practice Law and Rules, ARlSLEIDA DUARTE, ------------------------------------------------------x In lhe Malter of the Application of x x x x x x x THE CITY OF NEW YORK, x Respondent-Appellant x ------------------------------------------------------x AMICUS CURIAE BRIEF OF THE LEGAL AID SOCIETY STEVE BANKS, ESQ. DOR] A. LEWIS, ESQ. CAROLINE HSU, LA W CLERK The Legal Aid Society Prisoners' Rights Project 199 Water Street, 6'h floor New York, N.Y. 10038 Tel: (212) 577-3530 Facsimile: (212) 735-3464 dlewis@legal-aid.org On the brief: Dori A. Lewis, Esq. and Caroline Hsu, Law Clerk Table of Contents POINT I 1 THE CITY'S URSERY ADMISSION RULES ARE LAWFUL INTERPRETATIO OFCORRECTIO LAW § 611... 1 A. The best interests standard is required by Section 611 1 B. In contravention of the law, the Department does not use a best interests analysis in making determinations about jail nursery admissions 5 C. The Department's nursery admission rules exceed its interpretive authority under Section 611 by making policy 9 POINT II 15 THE DEPARTMENT SHOULD OT BURDE THE FU DAMENTAL RIGHTS TO FAMILY AND CHILD-REARING UNLESS IT IS "REASONABLE AND NECESSARY" TO PROTECT INSTITUTIONAL SECURITy 15 A. The constitutional Ooor governing jail restrictions on family contact was sel by this Court in Cooper v. Morin 16 B. The Department's rules do not meet the constitutional minimum 18 I. The Department unlawfully refuses to acknowledge the fundamental rights to family and child-rearing 19 2. The Department has failed to make a "strong showing of necessity" that would justify its overly restrictive nursery admission rules 22 POIN1' III 23 Ms. Duarte's Denial of Admission to the ursery Is Emblematic Of Deficiencies in the Department's Procedures 23 A. The Department failed to perform a best interests analysis 23 B. The Department failed to meet the Cooper standard in denying Ms. Duarte admission to the nursery 24 CO eLUSION 25 TABLE OF AUTHORITIES CASES Apgar v. Beauter, 75 Misc. 2d 439. 347 .Y.S.2d 872 (Sup. CI. Tioga Cnty. 1973) 3 Bailey v. Lombard, 101 Mise.2d 56,420 N. Y.S.2d 650 (Sup. CI. Monroe Cnty. 1979) 3, 8 Barber v. Stanley, 260 A.D.2d 744. 687 N.Y.S.2d 765 (App. Div. 3d Dep't 1999) 8 Becker v. Ball, 61 A.D.2d 884, 403 N.Y.S.2d 373 (4th Dep't 1978) 3 Bedard v. Baker, 40 A.D.3d 1164. 835 .Y.S.2d 511 (3d Dep" 2007) 12 Bell v. Wolfish, 441 U.S. 520(1979) 17-18 Boccali v. Axelrod, 71 .Y.2d 1.523 .Y.S.2d464 (1987) 13 Bosh v. Fahev. 53 .Y2d 896, 440 N. Y.S.2d 626 (1981) 15 Brown v. Wing, 93 N.Y.2d 517, 693 N.Y.S.2d 475 (1999) 2 Cooper v. Morin, 49 N.Y.2d 69, 424 N.Y.S.2d 168 (1979), eerl. denied, 446 U.S. 984 (1980) Passim In the Matter of Beer Garden. Inc. v. New York Slate Liquor Auth" 79 N.Y.2d 266, 582 N.Y.S.2d 65 (1992) 9 In re Adoption of Corey, 184 Mise.2d 437,707 .Y.S.2d 767 (Fam. CI. Greene Cnty. 1999) 13 In rc Afton C.. 17 N.Y.3d 1,926 .Y.S.2d 365 (2011) 6 In rc Alicia EE., 86 A.D.3d 663, 927 .Y.S.2d 181 (3d Dep" 20 II ) 12 Kurcsics v. Merchants Mul. Ins. Co., 49 N.Y.2d 451, 426 N.Y.S.2d 454 (1980) 14 Lincoln v. Lincoln, 24 .Y.2d 270, 299 .Y.S.2d 842 (1969) 3 Ncgonsott v. Samuels. 507 U.S. 99 (1993) 2 icholas v. Kahn, 47 N. Y.2d 24, 416 N.Y.S.2d 565 (1979) 13 icholson v. Scoppctta, 3 N.Y.3d 357, 787 N.Y.S.2d 196 (2004) 6 Peo Ie v. Lavalle, 3 N.Y.3d 88, 783 N.Y.S.2d 485 (2004) 18 Raritan Dev. Com. v. Silva. 91 NY2d 98, 667 N.Y.S.2d 327 (1997) 3 Schreurs v. Johnson, 27 A.D.3d 654, 811 N.Y.S.2d 437 (2d Dep't2006) 11 Shankman v. Axelrod, 73 N.Y.2d 203, 538 .Y.S.2d 783 (1989) 10 VictorY v. Coughlin, 165 A.D.2d 402, 568 N. Y.S.2d 186 (1991) 24 STATUTES AND CONSTITUTIONAL PROVISIONS Fam. Ct. Act § 301.1 11 Fam. Ct. Act § 623 11 Fam. Ct. Act § 631 II Fam. Ct. Act § 637 12 Fam. Ct. Act § 1022 6 Fam. Ct. Act § I028-a 12 Fam. Ct. Act § I052 12 Fam. Ct. Act § I085 14 N.Y. Civ. Rights L. § 79-e 20-21 II N.Y. Const. Art. I, § 6 16 N. Y. Correct. L. § 61 1 Passim N. Y. Correct. L. § 803 14 N.Y. Correct. L. § 851 14 N.Y. Dom. ReI. L. § 240 (McKinney 2012) 14 OTlIER AUTIIORITIES 2 .Y. JUT. 2d Administrative Law § 26 (2012) 9-10 Anne E. Jbara. The Price They Pay: Protecting the Mothcr·Child Relationship Through the Use of Prison urseries and Residential Parenting Programs. 87 Ind. L.J. 1825 (2012) 19 Centers for Disease Control and Prevention, Brcastfeeding: Promotion and SupPOrt, http://www.cdc.govlbreastfeedinglpromotionlindex.htrn (last updated August 2, 2011) 20 American Academy of Pediatrics, Breastfeeding and the Use of Human Milk. 129 Pediutrics e829 (20 12) 20 Superintendent Ada Perez, Bedford Nursery Manual (June 2006) 8 World Health Org., Evidence on the Long-Term Effects of Breastfccding; Systematic Reviews and Meta-Analyses 3 (2007) 20 Women's Prison Ass'n, Mothers, Infants and Imprisonment: A National Look at Prison Nurseries and Community-Based Alternatives (May 2009) 19 III POI TI THE CITY'S URSERY ADMISSION R LES ARE U LAWFUL INTERPRETATIONS OF CORRECTIO LAW § 611. Appellants construe New York Correction Law Section 61 1(2) (McKinney 2012) ("Section 611 ") as permitting the ew York City Department of Correction ("lhe Department") to deny a mother and child's admission to the nursery on the basis of institutional need and argue that "'the best interest of the child' is not the exclusive or over-riding consideration" (App. Br. 21 - 23). Respondents urge, consistently with the statutory language, this Court to construe Section 611 as setting forth a best interests inquiry as the guiding standard for determining whether an incarcerated mother and her infant will be admitted to the nursery program. (Resp't Br. 23-31). We urge the Court to adopt a construction of the statute that recognizes the centrality of the best interests standard that is articulated in Section 611 and to hold that, as in the outside world, the best interests standard adequately accounts for any credible safety concerns. A. The best interests standard is required by Section 61 I. Section 611 provides, inter alia, lhat "a child so born [in a correctional institution] may be returned with its mother to the correctional institution in which lhe mother is confined unless the chief medical officer of the correctional institution shall certifY that the mother is physically unfit to care for the child." N.Y. Correct. L. § 611(2). It further provides that "a child may remain in the correctional institution with its mother for such period as seems desirable for the welfare of such child, but not after it is one year of age, provided, however, if the mother is in a state reformatory and is to be paroled shortly after the child becomes one year of age, such child may remain at the state reformatory until its mother is paroled, but in no case after the child is eighteen months old." & In controversies over statutory construction, "legislative intent is the great and controlling principle." Brown v. Wing, 93 .Y.2d 517, 522, 693 .Y.S.2d 475,477 (1999) (quoting Matter of Scotto v. Dinkins, 85 .Y.2d 209, 214, 623 .Y.S.2d 809, 811 (1995». Where the law is "expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive" Negonsolt v. Samuels, 507 U.S. 99, 104 (1993) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570 (1982»; see Brown, 93 N.Y.2d at 522, 693 N.Y.S.2d at 477 ("When an enactment displays a plain meaning, the courts construe the legislatively chosen words so as to give effect to that Branch's utterance"). On its face, the statute provides only two reasons to deny a mother and child the opportunity to be together: first, if the mother is physically unfit to care for the 2 child, and second, ifit is not in the child's welfare and best interests' to stay with the mother. See N.Y. Correct. L. §611 (2). Plainly, these are the only two reasons for denial that should be cognizable. See Apgar v. Beauter, 75 Misc. 2d 439, 441- 42,347 .Y.S.2d 872, 875-76 (Sup. Ct. Tioga Cnty. 1973) (reading Section 611 in the same way); Bailey v. Lombard, I0 I Misc. 2d 56, 61,420 N. Y.S.2d 650, 653 (Sup. Ct. Monroe Cnty. 1979) (stating that "the statute lays down a standard, that of the 'welfare of the child"'). The Legislature, which surely knew that it was legislating about incarcerated women who have been charged or convicted of crimes, did not include institutional needs as a basis for denial and the Department cannot create such a basis out of whole cloth. See Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98,103,667 N.Y.S.2d 327, 329 n.1 (1997) ("Where ... the language is unambiguous, and the result not absurd, we see no reason to depart from the legislative text"). While the plain language of the statute leaves no ambiguity regarding the primacy of the best interests standard, the legislative history of Section 611 also supports such a reading. The legislative history of Section 611 shows that its I "In mnny cases in this State ... the word 'welfare' is used interchangeably with the phrase, 'best intcrests.''' Bailey v. Lombard, 101 Misc.2d 56, 61, 420 N.Y.S.2d 650, 653 (Sup. Ct. Monroe Cnty. 1979); see~ Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 843 (1969) (..... the first concern of the court is and must be the welfare and the interests of the children."); Becker v. Ball, 61 A.D.2d 884, 884, 403 N.Y.S.2d 373. 374 (4th Dep't 1978) ('.... the paramount concern of the Court is and must be the welfare and best interests of the child.') 3 purpose is to protect the best interests of young children whose mothers are in custody by affording them the opportunity to bond during the first year of life. From the beginning the law was concerned first and foremost with the welfare of children. See Bill Jacket, Laws of 1930, ch.242 (styling the law as "an act to amend the correction and county law, in relation to children of women prisoners ... ") (emphasis added). That the welfare of the child was the primary consideration in enacting and amending the relevant subsection is apparent from reviewing the Bill Jacket of the 1930 amendment to the Nursery Law. Each document (save a letter supporting the bill on grounds of better standardization from the Department of Correction) comprising the Bill Jacket for the amendment speaks virtually exclusively to the interests of the children. Id. The National Committee on Prisons and Prison Labor supported the bill, highlighting the laudatory opinions of "the best specialists in child welfare work throughout the United States." & at 5-6. Thc Committee attached a report by those experts to their letter of support. & at 3-4. The New York State Federation of Women's Clubs supported the bill, noting exclusively their concern for the welfare of the children. Id. at 7. Likewise, a letter of support from the State Charities Aid Association characterized the bill as one that "aims to give the child the advantage of the mother's care... ". Id. at 9. That Association also praised the bill for reassigning the "decision as to the care to be given to the 4 child when separated from its mother" from the warden, "who is certainly not likely to be an expert in the care of children," to the "proper authorities." Id. at 10. The support for Section 611 overwhelmingly favored giving incarcerated mothers and their infants the opportunity to remain together in the first year of life. The plain language, legislative support, and previous consideration by the COlirts all sustain a reading of Section 611 as setting fOlth a best interests standard. B. In contravention of the law, the Department does not use a best interests lInalysis in mllking determinlltions lIbout jllil nursery admissions. onetheless, rather than incorporating the best interests standard into its rules governing nursery admission, the Department appears to have pushed the child's interests to the side as a peripheral, and at times non-existent, concern. The rules governing admission to the jail nursery on Rikers Island are contained in Institutional Order 20/08R, "The Nursery Program" ("Institutional Order") (R. at 152-60). Section III of the Institutional Order describes a number of absolute bars to nursery admission (R. at 153)2 The per se bars to admission enumerated in the Institutional Order run counter to the plain language and legislative intent of the statute to keep mother 2 The Institutional Order also provides that an applicant-mether's request is to he evaluated by the Department Medical and Mental Health units and contains a Memorandum of Understanding between the Department and the Administration for Children 's Services (ACS) governing the production of ACS clearance reports to DOC (R. at 152, 153-57). 5 and child together for the critical first year of life when it is in the child's best interests to do so. Specifically, the Institutional Order provides a list of crimes, including murder and assault with the intent to cause physical injury, that automatically bar a mother from the nursery ifshe was convicted of the crime within the past five years or is currently charged with the crime, regardless of any other circumstances (R. at 153). The bar is automatic, even though virtually none of the crimes listed have a direct bearing on the mother's ability to care for her child in a safe and appropriate manner. Notably, these bars do not contemplate any inquiry into what would be best for the child as required by Section 611. Indeed, if detainee mothers were in the community, the fact of being charged or convicted of a crime by itself would not be sufficient grounds for removal of a child. By analogy, even in instances of possible abuse and neglect, misconduct itselfis not enough tojustify a temporary removal. See Fam. Cl. Act § 1022 (establishing that the fact of misconduct alone is not sufficient to justify removal without inquiry into the interests of the child and alternatives to removal). Similarly, the fact of a bad act or conviction is not sufficient to support a finding of neglect without a causal connection between the misconduct and an articulated harm or risk of harm to the child. See U, Nicholson v. Scoppena, 3 N.Y.3d 357, 375,787 N.Y.S.2d 196,205 (2004) (finding that exposure ofa child to violence is not presumptively grounds for removal or a finding of neglect); In re Afton c., 17 6 N.Y.3d 1, 10,926 N.Y.S.2d 365, 369 (2011) (finding that being a registered sex offender is not presumptively grounds for neglect). In addition to these absolute prohibitions on admission, the Institutional Order outlines a decision-making process that centers around an institutional needs analysis rather than the best interests analysis required by Section 61 I. The Order lists several crime, charge, and discipline related factors for denying a mother and child admission. For example, the Institutional Order enumerates other crimes of conviction or charges "that may preclude an applicant from participation" (R. at 153). These too include crimes and unadjudicated charges with no nexus to the welfare ofa child and that would not be sufficient grounds for removal ofa child in New York State. The Order is otherwise silent as to additional factors that should be considered (R. at 152-158). Thus, the Institutional Order does not utilize a best interests standard for admission decisions nor does it provide any guidance on how a best interests analysis is to be conducted. The Order's avowal that " ... standards for review and evaluation shall be 'in the best interest of the child and children currently in the nursery program'" (R. at 157) is belied by the fact that the list of factors to consider is insufficiently comprehensive and does not include any that would favor admission, that bear on the mother's concern for her soon-to-be born child or for 7 improving herself, or that benefit the infant. For example, the Order does not contemplate any inquiry into whether the mother has planned for the child, what programs the mother has completed in anticipation of having the child, or the mother's good relationship with her other children, to name a few factors that should merit serious consideration and inclusion in the Department's admission process. By contrast, the State's nursery program considers a wide range of factors. As set out in its Nursery Manual, the Department of Corrections and Community Supervision considers the applicant's parenting history, her ability to sustain a relationship with her child, her outward expressions toward the child, her efforts to better her situation, her criminal and institutional record, as well as any safety risk she may pose to others in the nursery program. See Superintendent Ada Perez, Bedford ursery Manual (June 2006). The Department's exclusive focus on a mother's criminal history without weighing a full range of factors is incompatible with a best interests analysis. Its blanket exceptions to Section 611 based upon unadjudicated charges and convictions run contrary to the fact-specific nature ofa "best interests" analysis. See Bailey v. Lombard, 101 Misc.2d 56, 62-63, 420 .Y.S.2d 650, 654 (Sup. Ct. Monroe Cnty. 1979) (performing a best interests analysis, including nine factors, some of which bearing directly on the physical and psychological well-being of the infant); cf. Barber v. Stanley, 260 A.D.2d 744, 747, 687 N.Y.S.2d 765, 768 (App. 8 Div. 3d Dep't 1999) (whether to permit the relocation of children are "fact-specific matters [that] present such complex issues that each must be considered on its own merits with the 'predominant emphasis being placed on what outcome is most likely to serve the best interests of the child"') (quoting Tropea v. Tropea, 87 N.Y.2d 727, 739, 642 N.Y.S.2d 575, 580 (1996)). c. The Department's nursery admission rules exceed its interpretive authority under Section 611 by makiug policy. The Department does not have the authority to set aside the best interests analysis required by Section 611. Agency powers are limited to "those powers expressly delegated by the legislature, together with any powers necessarily required by implication." In the Matter of Beer Garden, Inc. v. New Yark State Liquor Auth., 79 N.Y.2d 266, 276, 582 N.Y.S.2d 65, 69 (1992). The statute does not expressly delegate any authority to the Department to substitute a decision based on institutional needs for the best interests analysis prescribed by the statutory language. See N.Y. Correct. L. § 611. Nor can the imputation of institutional needs as an additional or alternative basis for denial ofa nursery admission be implied from the statute. "A power not expressly granted by statute is inferred by necessary implication only where it is so essential to the exercise of some power expressly conferred that it plainly appears to have been within the intention of the legislature." 2 N.Y. Jur. 2d Administrative 9 Law § 26 (2012); see also Shankman v. Axelrod, 73 .Y.2d 203, 206,538 N.Y.S.2d 783, 784 (1989) (holding that the power to inspect patient files by ex parte warrant was not necessarily implied by express authority to "enter, examine and survey all grounds ..."). "The implied power must be necessary, not merely convenient, and the intention of the legislature must be free from doubt" 2 N.Y. Jur. 2d Administrative Law § 26. Here the Department's disregard of the panoply of factors that should be considered in a best interests analysis and its supplanting of these considerations by an assessment of "institutional needs" is not necessary to the purpose of the statute. The purpose of Section 611 is to increase the opportunities for mother and child to bond, if that is consistent with the welfare of the child. By enacting Section 61 I, the Legislature directed the Department to take measures to protect the opportunity for an incarcerated mother and her child to be together in thc first year ofa child's life. An institutional needs tcst is not necessary to the duties of the Department, because safety concerns are adequately accounted for in the best interests test. Institutional concerns such as safety and security can be addressed by measures such as increased staffing and supervision to carry out the legislative command to allow mother and child to be together when it serves the child's best interests. Institutional needs should come into play only when there is a risk of 10 such magnitude that it is not in the child's best interests to be with its mother in the nursery. It is well established in New York that in matters related to the parental relationship, the child's best interests is the principal guiding standard. The best interests of the child standard is routinely relied upon in determinations made in Family Court. See e.g., Schreurs v. Johnson, 27 A.D.3d 654, 654, 811 N.Y.S.2d 437, 438 (2d Dep't 2006) (citing Eschbach v. Eschbach, 56 N. Y.2d 167, 171,451 N. Y.S.2d 658, 660 (1982)) ("The essential consideration in making an award of custody is the best interests of the child."). The primacy of this standard in proceedings related to children is evident from a survey of the Family Court Act. In the context ofjuvenile delinquency proceedings, Article 3 of the Family Court Act requires that "in any proceeding under this article, the court shall consider the needs and best interests of the respondent as well as the need for protection of the community." N.Y. Fam. Ct. Act § 301.1 (McKinney 2012). Under Article 6 of the Family Court Act, the courts are repeatedly directed to use the best interests of the child standard in determining the appropriate disposition of charges of permanent neglect by the parent. See .Y. Fam. Ct. Act § 623 ('''dispositional hearing' means a hearing to determine what order of disposition should be made in accordance with the best interests of the child"); N.Y. Fam. Ct. Act § 631 ("an order of disposition shall be made ... solely on the basis of the best interests of the 11 child"); see also N.Y. Fam. Ct. Act § 637 (regarding restoration of parental rights). In Article 10 of the Family Court Act, the courts are repeatedly directed to consider the best interests of the child in determining whether a child should be removed from its parents. See~, N. Y. Fam. Ct. Act § 1028-a (establishing best interests as the standard for deciding a relative's application to become a foster parent); N.Y. Fam. Ct. Act § 1052 (prioritizing best interests in determining whether a child should remain in its home post-adjudication of the abuse and neglect finding). Here, the Department provides no credible reason why the well-established best interests standard should not be applied in prison and jail nursery cases, especially considering that the Legislature's express commitment to the importance of first- year-of-life bonding contained in Section 611. The Department's briefs to this Court recite safety and institutional need as factors that they considered here and need to consider in the future (App. Br. 20 - 28). But they do not explain, nor could they, why the best interests standard is not an adequate protection. The courts regularly consider criminal convictions and involvement with the criminal justice system, among many factors, when making best interests determinations. See~, In re Alicia EE., 86 A.D.3d 663, 664, 927 N.Y.S.2d 181, 182 (3d Dep't 2011) leave to appeal denied, 17 N.Y.3d 713 (2011) (performing a best interests analysis for a parental rights termination hearing even where respondent father was convicted of child abuse); Bedard v. Baker, 40 t2 A.D.3d 1164, 1166,835 N.Y.S.2d 511, 513-14 (3d Dep't 2007) (considering criminal conviction as only one in several factors in determining custody arrangement); In re Adoption of Corey, 184 Misc.2d 437, 445-48, 707 N.Y.S.2d 767,773-74 (Fam. Ct. Greene Cnty. 1999) (finding the Adoption and Safe Families Act prohibition on adoptions by parents convicted of certain crimes is not in best interests of the children and fails due process). The per se bars promulgated by the Department fall squarely within the realm of policy making, and are accordingly the sole province of the Legislature. Cf. Boreali v. Axelrod, 71 N.Y.2d 1,9,523 N.Y.S.2d 464, 468 (1987) (..... the legislative branch of government cannot cede its fundamental policy-making responsibility to an administrative agency".). Concomitantly, even in instances where there is a broad delegation of authority, an agency cannot exceed "the permissible scope of its mandate by using it as a basis for engaging in inherently legislative activities." Id.; see also Nicholas v. Kahn, 47 N. Y.2d 24, 31,416 .Y.S.2d 565, 569 (1979) (noting that the administrative agency's rulemaking powers are limited to "fill[ing] in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation"). Had the Legislature wished to erect barriers such as the ones contained in the Institutional Order, it could have done so when Section 611 was amended, as last 13 occurred in 2009, and as it has in other corrections-related contexts. See~, N.Y. Dom. ReI. L. § 240 (McKinney 2012) (barring visitation and custody where a person was convicted of first or second degree murder of, inter alia, a parent or sibling of the child at issue);' N. Y. Fam. Ct. Act § 1085 (McKinney 2012) (providing the same carve-out as Section 240 of the Domestic Relations Law); N.Y. Correct. L. § 803 (McKinney 2012) (excluding people convicted of certain categories of crimes from the merit time program in New York State correctional I'acilities); N.Y. Correcl. Law § 851 (McKinney 2011) ("the governor, by executive order, may exclude or limit the participation or any class of otherwise eligible inmates from participation in a temporary release program"). That women in jail and prison are often charged and convicted of serious crimes was apparent when Section 611 was enacted and has remained so throughout the decades it has been the law of this State, yet the relevant statutory language includes no exceptions or exclusions for particular crimes. Where, as here, an agency's interpretation "runs counter to the clear wording of a statutory provision ... as well as the legislative intent," it cannot be upheld' 3 Even here, the Legislature did not erect absolute bars, but created a scheme under which visitation/custody could be granted with informed consent and in cases involving domestic violence where visitation/custody would be in the best interests of the child. 4 To the extent the Department seeks deference to make decisions concerning its policies for admission to the nursery, the COLIrt need not grant it. "Where the question is one of pure statutory reading and analysis, dependent only on an accurate apprehension oflegislativc intent, there is little basis to rely on any special competence Of expertise of the administrative agency." t4 Bosh v. Fahey, 53 N.Y.2d 896, 900, 440 N.Y.S.2d 626, 628 (1981) (internal quotation omitted). This Court should hold that the admission criteria contained in the Department's Institutional Order are invalid because they do not give serious consideration to the range of factors involved in determining what is in the best interests of a child and do not give sufficient weight to the important public policy expressed by the Legislature of keeping mothers and children together for the first year of life. POINT II THE DEPARTMENT SHOULD NOT BURDEN THE FUNDAMENTAL RIGHTS TO FAMILY AND CHILD-REARING UNLESS IT IS "REASONABLE AND NECESSARY" TO PROTECT INSTITUTIONAL SECURITY. Appellants ask this Court to disregard its prior decision in Cooper v. Morin, 49 N.Y.2d 69, 424 N.Y.S.2d 168 (1979), cert. denied, 446 U.S. 984 (1980), and uphold the Department's nursery admission procedures and its decision in Ms. Duarte's case (Reply Br. 16). To the extent that Appellants acknowledge Cooper, they conclusorily claim that they have met its burden (Reply Br. 16). Respondent Kuresies v. Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459, 426 N.Y.S.2d 454, 458 (t980). Even if the Department's expertise in maintaining safety and protecting those in its custody is instructive, those considerations do not bear on whether the Order's provisions are lawful or ultra vires. "In such circumstances, the judiciary need not accord any deference to the agency's determination, and is free to ascertain the proper interpretation from the statutory language and legislative intent." Claim 01" Gruber, 89 N.Y.2d 225, 652 N.Y.S.2d 589, 593 (1996). 15 argues that the best interests standard should control and that the Cooper standard is not met (Resp't Br. 41 - 44). Amicus agrees with Respondent. This case is best resolved under Section 611, and that the statute permits a complete resolution of the issues presented. In the event that the Court finds that institutional needs may serve as an independent basis for denial of nursery admission, we urge the Court to reaffirm Cooper and protect the fundamental rights of mothers and children. A. The constitutional floor governing jail restrictions on family contact was set by this Court in Cooper v. Morin. If Section 611 is construed to allow for an "institutional needs" basis for denial of admission to the nursery, the admission decision must still be made in a manner that comports with the due process clause of the New York State Constitution. See N.Y. Const. Art. I, § 6 ("No person shall be deprived of life, libetty or property without due process of law."). This Court set out the relevant constitutional minimum in Cooper. Appellant argues that there is no fundamental right to child-rearing and that "prison officials may curtail such activities to meet legitimate penological needs and goals" (App. Br. 30). Appellant futther argues that Cooper "recognized that curtailment of rights which are 'reasonable and necessary to the maintenance of security' are appropriate;" then conclusorily states that "safety ... is a reasonable t6 and necessary basis to deny admission to the Nursery" (Reply Br. 16). Appellant's arguments misunderstand the law. In Cooper, this Court considered whether certain restrictions on contact visits between family members in a county jail were constitutional. In the decision, this Court emphasized that in New York State, there are fundamental rights to marriage and family life as well as to bear and rear children. Cooper, 49 N.Y.2d at 80, 424 N.Y.S.2d at 175. Cooper then discussed at length the federal standard for assessing prison restrictions that burden fundamental rights like the ones presented here, and took pains to set a higher standard in New York State. Cooper, 49 N. Y.2d at 79-80, 424 N. Y.S.2d at 173-74. The federal standard is articulated in Bell v. Wolfish, 441 U.S. 520 (1979), which states that under federal law the jail can impose any condition so long as it is merely reasonably related to a legitimate governmental objective, 441 U.S. at 539, and not an exaggerated response to a legitimate security consideration, 441 U.S. at 562. The Cooper Court then held that the State Constitution offers greater protection to inmates, and particularly pretrial detainees, than what is available in federal law, and adopted a more exacting standard than Bell, opining that "we cannot agree that the validity of the regimen imposed upon such persons during detention turns on no more than whether a regulation has a legitimate purpose 17 other than punishment and is not excessive in relation to that purpose." Cooper, 49 N.Y.2d at 79, 424 N.Y.S.2d at 174-75; see also People v. Lavalle, 3 N.Y.3d 88, 127,783 N.Y.S.2d 485, 508 (2004) ("This Court has repeatedly construed the State Constitution's due process clause to provide greater protection than its federal counterpart as construed by the Supreme Court."). "When so fundamental a right as the maintenance by pretrial detainees of relationships with family and friends is involved the measure adopted must be both reasonable and necessary to the maintenance of security." Cooper, 49 N. Y.2d at 81,424 N. Y.S.2d at 176. Finding the Bell test "one-sided," this Court set out a balancing test that weighs "the harm to the individual resulting from the condition imposed against the benefit sought by the government through its enforcement." Cooper, 49 N.Y.2d at 79, 424 N.Y.S.2d at 175. B. The Department's rules do not meet the constitutional minimum. The Department's rules as set forth in the lnstitutional Order do not meet Cooper's "reasonable and necessary" test and should be deemed unconstitutional because they are too restrictive. The Order does not evince a proper balancing of the fundamental rights of mother and child against the Department's purported institutional needs, and inevitably excludes appropriate candidates for the nursery. 18 I. The Department unlawfully refuses to acknowledge the fundamental rights to family and child-rearing. Cooper reaffirmed that incarcerated mothers and their children have a number of fundamental rights related to family. 49 .Y.2d at 80, 424 .Y.S.2d at 175. Here, there can be no question that the fundamental rights ofnewbom child and mother to bond are at stake. The first year of life is critical for bonding bctween mother and child. Several studies show that babies who form secure attachments to their mothers have better life outcomes than babies who do not. For example, "the American Psychological Society found that infants who bond securely with their mothers become more self-reliant and have higher self-esteem as toddlers. Later in life, this translates into successful peer relationships and the ability to better cope with life stressors." Women's Prison Ass'n, Mothers, Infants and Imprisonment: A National Look at Prison Nurseries and Community-Based Alternatives 8-9 (May 2009), http://www.wpaonline.org/pdflMothers%20Infants%20and%20Imprisonment%20 2009.pdf(citing Beth Azar, The Bond Between Mother and Child, American Psychological Society (September 1995)), http://www.thelizlibrary.org/lizJAPA- Monitor-attachment.html); see also Anne E. Jbara, The Price They Pay: Protecting the Mother-Child Relationship Through the Use of Prison urseries and 19 Residential Parenting Programs, 87 Ind. LJ. 1825, 1828 (2012) (discussing the benefits of early child bonding). To deny a mother and her newborn admission to the nursery is to also deny them the opportunity to breastfeed. Breastfeeding is strongly recommended by public health officials and health care providers. See World Health Org., Evidence on the Long-Term Effects of Breastfeeding; Systematic Reviews and Meta- Analyses 3 (2007), available at http://whqlibdoc.who.int/publications/200719789241595230_eng.pdf ("every infant should be exclusively breastfed for the first six months of life, with continued breast feeding for up to two years or longer because breast fed infants have lower mortality rates"); Ctrs. for Disease Control and Prevention, Breastfeeding: Promotion and Support, http://www.cdc.gov/breastfeedingipromotion/index.htm (last updated August 2, 2011) ("One of the most highly effective preventive measures a mother can take to protect the health of her infant is to breastfeed"); American Academy of Pediatrics, Breastfeeding and the Use of Human Milk, 129 Pediatrics e829 (2012), http://ped iatrics.aappubl ications.orgicontent/ I29/3/e827. fu II.pd f+html ("breastfeeding should not be considered a lifestyle choice but rather as a basic health issue") [hereinafter "AAP"]; see also N.Y. Civ. Rights L. § 79-e (McKinney 20 2012) (protecting a mother's right to breastfeed). Breastfeeding is so strongly recommended because of demonstrated benefits to infants and mothers.' The Department disputes in its briefs that the fundamental rights described above exist (App. Br. 30; Reply Br. 16). The Depal1ment's Institutional Order does not acknowledge the clearly established fundamental rights at risk. As discussed above, the rules set out categorical exclusions from the nursery based only on the existence of a conviction or unadjudicated charge of certain specified offenses. See supra Part l.B. Further, the nursery admission procedure contemplates only factors that would militate against admission and is silent as to factors that would be in favor of admission, that demonstrate the mother's concern for her child, or that consider the benefit to the mother and child if housed together in the nursery. See supra Part l.B. 5 After examining recent publications and systemic reviews about breast feeding, the American Academy of Pediatrics found breast feeding resulted in, inter alia, 36% reduced risk of Sudden Infant Death Syndrome, 27% - 42% reduced risk of clinical asthma, 30% reduced risk of type 1 diabetes, 40% reduced risk of type 2 diabetes, 15% - 30% reduced risk of obesity, and 15%- 20% reduced risk of childhood leukemia and lymphoma (depending on type). AAP at e829- c830. Moreover, "both short and long-term benefits accrue 10 mothers who breastfeed," AAP at e831. Notably, "a large prospective study on child abuse and neglect perpetuated by mothers found, after correcting for potential confounders, that the rate of abuse/neglect was significantly increased for mothers who did not breastfeed as opposed to those who did." Id. (citing Strmhearn L. ct aI., Does Breastfeeding Protect Against Substantiated Child Abuse and Neglect? A 15-year Cohort Sludy, 123 Pediatries 483 (2009)). 21 2. The Department has failed to make a "strong showing of necessity" that would justify its overly restrictive nursery admission rules. Moreover, the Department has failed to provide a strong showing of necessity for creating the barriers to admission that it does in the Institutional Order. It is understood that the Department has an obligation to protect the people in its custody. However, Cooper requires more than a talismanic avowal of institutional safety. See Cooper, 49 .Y.2d at 81,424 N.Y.S.2d at 176 (finding visitation rules "clearly unreasonable unless sustained by a strong showing of necessity"). The current rules virtually guarantee that the Department will issue a summary denial to the nursery to any woman accused of, or previously convicted of, a violent crime. This denial will not articulate a strong enough relationship between the reason for denial and an actual risk to institutional security that would justify burdening the mother and child's fundamental rights. & In the event that the Court finds that the Department may use institutional needs as a basis for denying admission to the nursery program-separate from the best interests analysis that we believe is required by Section 61 I-the Department's Institutional Order should be revised to ensure that denials will be justified by a strong showing of necessity. 22 POINT III MS. DUARTE'S DE lAL OF ADMISSIO TO THE NURSERY IS EMBLEMATIC OF DEFICIENCIES IN THE DEPARTMENT'S PROCEDURES. Ms. Duarte's case is illustrative of the shortcomings of the Department's problematic procedures as they are set forth in the lnstitutional Order. In denying Ms. Duarte admission, the Department did not acknowledge the welfare of Ms. Duarte's child and did not adequately consider whether it was in the child's best interests to remain in the nursery with its mother (R. at 63, 74). In accordance with the Institutional Order, the Department also failed to properly balance the harm to Ms. Duarte and her infant or a denial against the benefit to security being sought. See supra Part II.B. A. The Department failed to perform a best interests analysis. The Warden, guided by the Institutional Order (R. at 63,74), offered only conclusory reasons for denying Ms. Duarte's application and appeal. The Warden's decision makes no mention orthe best interests of her child. (R. at 63). Ms. Duarte was initially denied admission "in accordance with Nursery Order Procedures" based on her "criminal record [attempted murder]; extensive infraction history" (R. at 63). Her appeal of this decision was likewise denied by the Warden "in accordance with Nursery Program Procedures." (R. at 74). There 23 is no indication from those decisions that factors related to the best interests of Ms. Duarte's children were even considered. B. The Department failed to meet the Cooper standard in denying Ms. Duarte admission to the nursery The Department did not take into consideration the impact to Ms. Duarte and to her baby if they were not allowed to be together in the nursery, and failed to weigh this harm against any benefit to institutional security that could be gained. See Cooper, 49 N.Y. 2d at 79, 424 N.Y.S.2d at 1194. Indeed, the Department's denial did not even make reference to "institutional needs" or threats to security if Ms. Duarte were admitted into the nursery. It did not articulate any direct link between Ms. Duarte's background and an actual risk to the security of the nursery so that its denial of her (and her newborn's) admission to the nursery was "reasonable," let alone "necessary" to protect institutional security. Compare Victory v. Coughlin, 165 A.D.2d 402, 568 N.Y.S.2d 186 (1991) (upholding restrictions on contact visiting between prisoner and his wife where the wife had assisted the prisoner in an escape during a contact visit). or did the Department consider, if there were an actual threat posed by Ms. Duarte's admission to the nursery, whether it could be addressed by an increase in staff or supervision, or the extent of such an increase that would be required. See Cooper, 49 N.Y.2d at 81, 399 N.E.2d at 1195,424 N.Y.S.2d at 176 (finding unpersuasive the argument that 24 prohibiting contact visitation was necessary because institutional needs would require the agency to rearrange the faciliry and add staff in order to provide such visitation). CONCLUSIO We urge the Court to adopt a construction of Correction Law § 611 that requires the Department to implement a new Institutional Order that utilizes the "best interests" analysis in deciding whether to allow a mother and newborn into the nursery, and that weighs fully all relevant factors in such an analysis. If the Court finds that the Department may use institutional needs as a separate basis for denial, we urge the Court to reaffirm Cooper and find the Institutional Order invalid on constitutional grounds. DATED: NEW YORK, NEW YORK December 27, 2012 Respectfully submitted, JJ~_~ STEVE BANK;ESQ. DORI A. LEWIS, ESQ. CAROLINE HSU, LAW CLERK The Legal Aid Society Prisoners' Rights Project 199 Water Street, 6th floor ew York, N.Y. 10038 Tel: (212) 577-3530 Facsimile: (212) 735-3464 dlewis@legal-aid.org 25