EVIDENTIARY ISSUES SURROUNDING THE USE OF DRUG TEST RESULTS IN CHILD WELFARE CASES AND THE USE OF DRUG TEST IN

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1 EVIDENTIARY ISSUES SURROUNDING THE USE OF DRUG TEST RESULTS IN CHILD WELFARE CASES AND THE USE OF DRUG TEST IN DEVELOPING TREATMENT PLANS The purpose of Chapter 7 of the Children's Code Section is to insure that any intervention by the state into family life on behalf of children be guided by law, by strong philosophical underpinnings and by sound professional standards for practice. Child welfare services MUST be based on these principles. It is the policy of South Carolina to reunite the child with his family in a timely manner. The children's code should be liberally construed to the end that families whose unity or well-being is threatened shall be assisted and protected and restored if possible. It is a balancing act that more often than not is not balanced at all. The recent use and misuse of hair follicle drug screens in my opinion is tipping the scales off balance resulting in children being separated from their parents far longer than need be. How can SCDSS use the hair follicle drug screen and all drug screens for that matter as an effective tool in meeting the goals set forth in section ? The answer is for all the players in child welfare cases to be informed, educated and trained as to what the most effective purpose drug screens can serve in developing a parent's individualized treatment plan and how drug screens can serve as an evidentiary tool in court.

2 With that being said, the Defendant parents in child welfare cases are increasingly being subjected to taking hair follicle drug screens prior to any allegations of drug use being substantiated by DSS. The mere fact that anyone can anonymously call the DSS intake line and make a report of alleged drug use will trigger a DSS investigative worker to make contact with that family within 72 hours. The worker is now trained to request that parent to submit to a hair follicle drug screen despite no visible evidence of drug use or neglect within the home. DSS is charged under the code to do the least intrusive measure when intervening in a family's life, however, the practice of making parents submit to a hair follicle drug screens based on an allegation of drug use along with the veiled threat that if they do not comply, their child could be taken away seems to me an extremely intrusive measure from the State. I am not in any way condoning the use of illegal drugs or the abuse of prescription drugs. Just the opposite, a positive drug test can lead to effective intervention in the home with treatment services offered to a parent who otherwise has no means to seek and pay for treatment on their own. However, a positive drug test alone does not necessarily mean that a child has been abused and/or neglected warranting removal from the home and placement in foster care. Your hand out on Hair Drug Panels and Cutoff Levels, I believe is a useful tool in determining the level a parent is addicted to drugs. As you can see, certain levels indicate whether a drug user is a

3 recreational user, a daily/ weekend user or a constant user. It is important for a caseworker, DSS attorney, Defendant attorney, Guardian ad Litem and the family court judge to be aware that certain testing levels indicate a certain type of user when determining if a child has been neglected or abused. The court needs to know not just the fact the Defendant tested positive for an illegal substance but the court needs to know what level and what that level indicates as to the type of drug user the Defendant is. In order for the court to have this knowledge, the burden falls on DSS to bring in the appropriate witnesses who can explain and interpret a positive drug screen. Such person would be David Eagerton who spoke earlier. No one wants that knock on their door from DSS. But when that knock comes, the State has the advantage. DSS has information and are mandated under law not to reveal the source of the information. Further DSS does not have the duty to disclose all the information that has been provided to them. DSS has forty five days to conduct an investigation if the child is not deemed to be in substantial and imminent danger and during the forty five days the parents are at a loss as to what is happening with the investigation. The practice up to several years ago would be for the parent accused of drug abuse to submit to a urine screen. Now the practice is for the parent to submit to a hair follicle drug screen and as you have learned today the hair follicle drug screen does not necessarily detect recent use only that the parent has used at some point within the last four to six months. If a parent has

4 a positive drug screen more likely than not, the caseworker will notify the legal department and a Complaint for Removal will be initiated in the family court. It is a scary process for a parent and a process that can take up to eighteen months before a child may be returned or in the alternative their parental rights terminated. So again, it begs the question, how can we balance using the hair follicle drug screen as an effective tool to getting parents into appropriate treatment plans while maintaining the goal of keeping the family unit in tact? One example of how drug screening went awry and hopefully we can all learn from this recent case the importance of reunifying families through better and effective treatment plans. The case is SCDSS v. Jennifer M that was heard on appeal on November 14, 2012 and filed June 26, Appellate Case Opinion No.: The Facts: On June 10, 2011, SCDSS filed a complaint for intervention against mother. Approximately a month later DSS filed an amended complaint for removal on July 1, 2011 after mother and her minor child allegedly tested positive for drugs in June Between June 10 th and July 1rst, DSS requested mother and child submit to a hair follicle drug screen which were allegedly positive and based only on these positive screens, DSS amended its complaint for the removal of the child. The child was taken into emergency protective custody through an ex-parte order of the family court on June 30, A probable cause hearing was held on July 7, 2011 resulting in a finding that probable cause existed for child to have been

5 placed in emergency protective custody and that child was to remain in the custody of DSS. It is important to note that probable cause hearings also known as the 72 hour hearing is the only hearing that hearsay is allowed and it can be assumed that DSS was allowed to submit at this hearing mother's drug screen. In its complaint for removal, DSS sought a finding that child was abused and/or neglected by mother based upon mother's alleged use of cocaine and marijuana in the presence of child, resulting in child testing positive for the drugs as indicated by child's June 27, 2011 drug test and mother's June 23, 2011 drug test. DSS further sought placement of mother's name on the central registry. The merits hearing was held on July 28, Over mother's objection, a DSS caseworker testified that mother tested positive for benzo, marijuana and opiates and she had a positive methadone level at the time the child was born back in December 10, An investigation was commenced back at the time of the child's birth and mother was requested to attend and successfully complete a substance abuse treatment program and to submit to random drug screens. The case worker further testified that home visits from December 2010 up to when the child was taken into emergency protective custody on June 30, 2011revealed no problems as far as the child's care but DSS had concerns based on mother and child testing positive on hair follicle drug screens that were administered in June of 2011 some six months after mother and child initially tested positive for these drugs.

6 None of the screens were offered into evidence and mother objected to any testimony concerning the drug screens as being hearsay. At the time of the merits hearing, mother had completed her drug treatment program at Fairfield Behavioral Health Services. The clinical counselor at Fairfield behavioral testified mother submitted to random drug tests on June 6 and June 16 and these tests were negative for everything except benzo. However, mother had provided Fairfield with a documented prescription for the drug. The counselor acknowledged Fairfield Behavioral administered urine drug tests, which would show if a person is actively using drugs. After speaking with both DSS caseworker and investigator, Fairfield Behavioral recommended mother attend parenting skills and rehabilitative psychological services programs. Mind you, the caseworker had testified that she had no concerns as to the child's care during her home visits and there was no evidence that mother suffered from any psychological disorder only that she was taken the prescribed drug Klonopin for anxiety that she suffered from after DSS became involved in her life. At the time of the hearing, mother had two more parenting skills classes to be completed and had not yet attended to the psychological services program even though this part of her treatment plan had not been court ordered and mother had voluntarily agreed to do additional treatment in hopes that DSS would get out of her life. DSS rested its case and mother moved for a directed verdict arguing that there had been allusions to drug tests, DSS failed to

7 introduce any drug tests to show any substance in the child's system. Mother noted that no drug tests had been admitted into evidence because DSS had no witnesses at the hearing to substantiate that any tests were taken, that there was a proper chain of custody, that a chemist was qualified, or that there was not a mix up in the samples in delivery to the testing site. The family court denied the motion for directed verdict based on mother admitting having used drugs in the past to the caseworker at the time of the initial investigation back in December of Mother testified that before child was born, she engaged in occasional, social drug use and she was unaware that she was pregnant at the time. Based on the caseworker's testimony, the family court found that the preponderance of the evidence supported the allegations mother abused and/or neglected child and the nature of the harm was physical abuse and willful and/or reckless neglect and mother's name was entered into the Central Registry for Abuse and Neglect. The finding was based upon mother's admitted use of drugs during her pregnancy and the fact that though mother denied knowledge of her pregnancy, her pregnancy was the result of sexual intercourse and therefore, she should have known pregnancy would have resulted from having sex. Mother filed a motion to alter or amend the ruling asserting that the preponderance of the evidence did not support a finding that she physically abused and willfully and/or recklessly neglected child, as her conduct prior to child's birth could not serve as the basis for such finding

8 where she had no knowledge of the pregnancy. Mother also filed a motion for review and return of custody. The Family court denied mother's motion to alter or amend the merits order and continued mother's motion concerning custody until the GAL had an opportunity to view mother's home. It is important to note, the child has now been out of mother's custody since late June and mother has been involved with DSS for the past eleven months. In December of 2011 approximately a year after that knock on her door, custody of the child was returned to mother. Mother's appeal was that the family court erred in finding that she willfully neglected her child, that the court erred based on the preponderance of the evidence that her name be placed on the Central Registry and lastly, the family court improperly admitted and considered alleged results of drug tests for which there was no foundation and which violated the rule against heresay. The Appellate Court agreed and reversed the family court's ruling as to the finding, central registry and the improper admission and consideration of mother's drug screens. It is important to note as to the drug screens, the Appellate Court found that to the extent the family court may have relied on evidence concerning mother's June 2011 drug test results to make its finding of abuse or neglect and ordering mother's name be placed on the Central Registry, a thorough review of the record convinces us there was no properly admitted evidence to support such a determination.

9 Further, the Appellate Court went to say that even if properly admitted, the evidence of mother's June 2011 drug test results would be irrelevant to abuse and neglect of the child, as there was no evidence that such drug use by mother at that time resulted in any abuse or neglect of child. What we can take away from this case is that our Appellate Court has put DSS on notice that if they are to seek a finding of abuse/neglect against a parent based solely on a parent's positive hair follicle drug screen you need to lay a proper foundation which would include having the test taker at court along with the chemist from the lab that conducted the screen both at the time of child's birth and when the screen was taken again in June. DSS has the burden to prove chain of custody along with showing that the Defendant's use of illegal drugs is a direct result of the child being abused or neglected. A positive screen alone is not sufficient evidence to show that a child has been or is being neglected. In this case, the child was out of mother's custody and home for approximately half of his first year of life. It did not matter that mother had completed her substance abuse treatment and had tested negative on all her random urine screens prior to the child being removed from her home. It is an example of the lack of knowledge and understanding of the hair follicle screen mother and child submitted to in June; neither DSS nor the mother had the proper witness to interpret the hair follicle

10 screen results. Not having that witness extended the time the child remained in foster care. On the other hand, I personally handled a case in Kershaw County several years ago where the hair follicle drug screen was a useful tool in discovering what was really going on with a parent's addiction and how her addiction did place the child in harm's way. I was the DSS attorney and we had received a case where the child less than a year old tested positive for methadone. The mother was taking methodone under a clinic's care and had reached the level where she was allowed take homes She would return to the methodone clinic once a week to pick up her 7 doses and attend individual and group counseling and submit to a drug screen. Her explanation as to why her child tested positive for methadone was that she had accidently put some of her prescribed methadone in a children's tylenol bottle and forgot she had done so and subsequently administered the methadone to her baby. She panicked when the baby became lethargic and she called her mother and explained what she had done. Her mother directed her to go to the emergency room and a drug screen on the baby revealed the methadone. The child was taken into DSS custody because there were no willing relatives to take custody at that time. Mother vehemently denied that she had intentionally given her child methadone and denied that she was abusing methadone. The case proceeded to trial and merits hearing lasted a full week. Prior to trial, I had subpoened the methadone clinic for

11 mother's records since we were informed that the methodone clinic conducted random drug screens on all their clients and that the mother had tested negative and that was why she was allowed to have the take homes. After a protracted fight, I finally got the screens from the clinic only to discover that the mother had tested positive for cocaine twice right around the same time that she had given her child the methadone. Again, mother vehemently denied any illegal drug use. We requested and were granted by court order for mother to submit to a hair follicle drug screen which she tested positive for cocaine. Because mother challenged all the positive drug screens, I had to have the emergency room doctor testify, the test taker for the screens testify and I brought down the chemist from the lab in North Carolina who certified the screens as confirmed positives. In this case, the positive screens were key in showing the family court that mother was in severe denial of her drug use and this denial and continued use of illegal drugs placed the child at risk of harm if she was to return to mother's care prior to mother completing treatment services. It also was in aid in developing mother's treatment plan in that she needed intensive inpatient services to deal with her multiple addictions. Establishing the chain of custody confirmed that the drug screens where in fact mother' screens. Having the chemist testify enlightened the court as to what the results of mother's drugs screens really meant as to her levels she tested positive

12 for. The family court then was able to make an informed decision as to the finding and treatment needed for this family to be reunified in the future. It is important for case managers, DSS attorneys, defense attorneys, Guardian ad litem, attorney for the Guardian ad Litem and ultimately the family court to know the difference between a urine screen versus a hair follicle screen the pros and cons of both and have knowledge as to how to accurately interpret each individual screen when making recommendations and decisions that impact a family's well being. This knowledge is particularly important in termination of parental right cases also known as the death penalty of family law. The standard of proof is higher than in the underlying abuse/ neglect case. DSS has the burden to prove its case by clear and convincing evidence. To prove that a parent has a diagnosable condition of drug abuse, DSS must show that the parent has failed two drug programs. Positive drug screens alone does not prove diagnosable condition in terminating a parent's rights. DSS in many instances will take positive drug screens and submit them as evidence that a parent has failed to remedy the conditions that caused the removal. What is tricky here is that if the removal was not based on drug abuse but for some other reason, it is questionable then to try a terminate a parent's rights under this subsection of failure to remedy based on positive drug screens alone but it is being

13 done and defendants are not challenging DSS on this. Give the example of Bender TPR. Drug testing by child welfare agencies cannot be a stand-alone activity. It should be part of a larger effort to address substance use by parents and must therefore fit into the agency's and community's approach to substance abuse and take into consideration any State law or prior court cases affecting practice or policy. Child welfare agencies and substance abuse treatment agencies have used drug testing for different purposes. Both types of agencies conduct drug testing because it provides information about a client's drug use behavior that can confirm or contradict what the agency has learned through other assessments and observations. Agencies test people who might under report or deny substance use due to fear of real or perceived negative reprisals i.e. loss of custody of their children. Drug test results indicate only that the drug or its metabolite is present at or above the established concentration cutoff level in the test specimen. They do not reveal whether a parent abuses or is dependent on illicit drugs or alcohol. Conversely, child welfare agency professionals should not rely on a negative drug test result as the sole determining factor for ruling out substance use, abuse, or dependence. A negative drug test result only indicates that the test did not detect the drug or its metabolite or that its concentration is below the established cutoff level in that particular specimen at that time. Similarly, a drug test on a newborn at birth does not determine whether

14 the mother's use or the extent of the mother's use has compromised her infant's growth or development. Yet in South Carolina, a baby born positive for illegal drugs or for prescription drugs that the mother does not have a valid prescription is per se neglect and DSS will seek to remove that child from the custody of the mother based only on the positive drug screen. The best way to evaluate the probability that someone is not using drugs or not addicted to drugs is by using a combination of random drug tests, self-reports, and observations of behavioral indicators by substance abuse treatment providers or professionals and child welfare workers. Observations include positive changes in hygiene and grooming; improved functioning in daily life; improved work behavior; avoidance of people, places and things associated with drug use; and improved consistency in complying with child welfare and substance abuse treatment case plan requirements. Drug testing in child welfare settings should be one component of a comprehensive family assessment to identify or eliminate substance abuse as a contributing factor to maltreatment. A situation where drug testing is not appropriate in child welfare practice and policy include: the parent is an active participant in an substance abuse treatment program that already requires frequent random drug testing

15 When the parent informs the case manager, treatment provider, or both of a relapse. In this circumstance, the case manager or treatment provider should assess the child's safety and risk. The provider should also consider assessing the parent's current drug use patterns and need for treatment or alternative intervention. Ideally, child welfare agencies should use drug testing to motivate parents who use substances to become involved in treatment and to provide motivation and positive reinforcement for parents in the early stages of recovery. A key action that needs to be the focus of are current policy on drug testing is identifying a clear purpose for using drug testing. Drug testing should be used to provide proof of or rule out substance abuse as part of a child abuse investigation and determine whether substance abuse is associated with child risk; monitor whether a parent is continuing to use during an open child welfare case; provide evidence that family reunification is warranted or unwarranted; and provide documented evidence that the parent is drug free. In closing, drug testing can be an important addition to a child safety and risk assessment, family assessment, comprehensive substance abuse assessment, case planning, and substance abuse intervention and treatment services. Test results can provide useful information for determining whether a parent is using or abstaining from the use of illicit drugs or misuse or abuse of legal drugs. Welfare

16 agencies should not use drug testing as the sole or primary measure of the existence or absence of a substance use disorder, degree of impairment, or parent's ability to effectively care for his or her child; agencies can best make these determinations using a combination of ongoing assessment, random drug tests, observations of the parent's behavior and participation in the case plan, and parent self-reports. Before implementing drug testing, child welfare agencies need to develop policies and procedures for testing, provide adequate staff training and ideally procure the services of a drug testing laboratory and Medical Review officer. When used effectively, drug testing can serve as a catalyst for the individual to stop using drugs, a deterrent to continued drug use, and positive reinforcement for continued abstinence. Drug testing results contribute to the full spectrum of client monitoring and support needed to ensure a child's safety, permanency, and well-being, as well as family recovery.