Citing ‘serious concerns,’ judge drops drug test results from state custody case

Sep 12, 2022, 11:01 PM | Updated: 11:14 pm

AMERICAN FORK, Utah — A Utah judge has ruled disputed drug tests cannot be considered in a family court case, potentially impacting other cases involving similar results.

Fourth District Juvenile Court Judge Douglas Nielsen announced his decision during a remote hearing in the case Monday evening, citing “serious concerns” about the reliability of certain saliva-based drug test results.

The KSL Investigators first reported on doubt surrounding Kalie Jones’s test results. Jones and her husband, Nick Hulse, are involved in a case within Utah’s child welfare system. Their children have been living in foster care for months, as the two work on overcoming their addiction.

Jones insists she hasn’t used drugs, but her court-ordered tests kept coming back positive for methamphetamine. In an effort to prove her innocence, Jones sought out backup urine tests from another provider on days she was ordered to test with Averhealth, the company Utah’s Division of Child and Family Services (DCFS) contracts with for drug testing.

“I knew nobody would believe us because we’re drug addicts,” she told KSL.

Despite Jones’ claims and multiple negative urine tests, DCFS relied on positive oral fluid tests to delay a planned trial home placement just before the school year.

Doubt over the accuracy of court-ordered drug tests could have widespread implications for Utahns

In an expedited evidentiary hearing last month, the court heard testimony from drug testing experts regarding several positive saliva test results in question.

“The court has serious concerns about the reliability of oral fluid testing as it pertains to amphetamine, ecstasy and methamphetamine testing,” Nielsen said during Monday’s hearing.

Nielsen said he found the collection and lab processes to be legally and scientifically sound, but cited expert testimony that saliva is at risk for contamination in a way that urine is not – because the mouth can be contaminated by substances in the environment.

He chose to overlook the positive results of mouth swabs in the case due to uncertainty surrounding how the substance might have been introduced to the sample, but said he also had serious concerns about the backup urine tests Jones provided to the court. He noted that while testimony revealed a staff member was in the room with Jones while she provided the sample, he did not hear testimony assuring that the collection of the sample was observed.

KSL’s investigation found Jones shouldn’t have even had to take the mouth swab tests. Averhealth’s contract with the state prohibits the use of oral fluid tests “as a substitute of a urinalysis when a same-sex collector is unavailable,” but Jones said Averhealth has violated that part of the contract on multiple occasions. When a female employee is not available to watch her provide a urine sample, she has been forced to do a saliva test instead.

“In the court’s eyes, the availability of staff to observe urinalysis tests is critical to a parent’s ability to prove his or her sobriety in the pursuit of the goal of reunification,” Nielsen said.

Jones and Hulse, while relieved to learn the positive saliva test results will not be used against them, say they cannot reclaim time already lost with their children because of those tests.

“It is impactful if there are other people who are aware of it,” Jones said of Monday’s ruling, “because if [the judge] says that those mouth swabs are invalid, let’s say that there were 10 other people that had mouth swabs that day, wouldn’t theirs then be invalid as well?”

It’s too soon to know how or if this may impact other custody cases before the state. The judge’s decision was narrow and specific to meth-positive saliva tests.

When reached for comment, a DCFS spokesperson said DCFS officials will respond once they’ve had a chance to review the judge’s written ruling.

Have you experienced something you think just isn’t right? The KSL Investigators want to help. Submit your tip at investigates@ksl.com or 385-707-6153 so we can get working for you.

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Citing ‘serious concerns,’ judge drops drug test results from state custody case