Mandatory drug testing puts families at risk in custody cases

ATLANTA, Ga. (InvestigateTV) – When Brittany Tucker's brother died in 2015, “I just misunderstood it,” she said. “I turned to drugs.”

Tucker's addiction led to state intervention in 2016 by the Georgia Department of Human Services Division of Family and Children Services (DFCS). Within two years, DFCS had removed all four of her children, including an infant daughter, from her care.

Under Georgia law – and the laws in many other states – a judge can require a parent to be drug screened when drugs are involved in child welfare cases. Tucker agreed to random drug tests in hopes of getting her children back. State-contracted workers collected the samples and then sent them to contracted drug-testing laboratories.

Tucker admits that relapses occurred early on, but in 2019 she said she was finally sober. “I haven’t gotten sober myself,” she said. “I did it for my children.”

But her ordered drug tests didn't show that. According to results from state laboratories, Tucker tested positive for methamphetamine while she was supposedly sober. These results affected her visitation rights with her children.

“I never got past supervised visits,” Tucker said. Confident that the positive results from DFCS-contracted laboratories were false, Tucker began getting tested at independent laboratories on the advice of her attorney, Darice Good.

Good, an attorney with 20 years of experience, represents parents in DFCS cases in juvenile court. She said when Tucker ran tests at DFCS-contracted labs, the results were positive for drugs in some cases, but when her client ran tests at independent labs around the same time, those results were negative for drugs.

“There [are] “There are so many false positives in these test results,” Good said.

Across the country, many states hire outside companies to conduct drug tests on parents involved in custody cases. And these contracts can be lucrative. Idaho, for example, has contracts with six companies worth more than $1 million.

The Georgia Child Protection Agency subcontracted to Averhealth and Expertox. None of the laboratories currently have a direct contract with DFCS; However, the companies with direct DFCS contracts actually subcontract drug testing lab work to Averhealth and Expertox.

The laboratories perform urine and hair follicle tests. The DFCS looks for both types because drugs may only last up to a week in urine but about three months in hair follicles, according to the National Institutes of Health.

In juvenile court in Gwinnett County, Good argued that the two companies' hair follicle tests could produce false positive results. She also alleged improper handling of the samples and inadequate training in sample collection.

“These cases of our clients staying sober are really sad,” Good said. “They lose their children because of false alarms.”

An expert's opinion

InvestigateTV brought Tucker's case to veteran toxicologist Ted Simon, who spent more than a decade as a toxicologist for the U.S. Environmental Protection Agency.

Simon raises concerns about the validity of some of Tucker's test results.

In 2018, Tucker underwent two hair exams just days apart; The Expertox test commissioned by DFCS returned a positive drug test, but 11 days later an independent laboratory test revealed she was negative for drugs. Since both hair tests were done within two weeks of each other, Simon said they should have had similar results.

“These two samples do not match what one would expect,” he explained.

In 2019, a urine test returned a negative drug test, but a day later, a hair test from DFCS-contracted company Averhealth showed very high drug levels, Simon said. According to Simon, because the levels in the hair follicle were “so high,” the drugs would also have shown up in the urine test.

“The hair tests are not reliable,” Simon said.

While the Substance Abuse and Mental Health Services Administration (SAMHSA) does not currently provide federal regulation of hair follicle testing, the agency has proposed regulations and guidelines. The agency said disadvantages of hair screening include environmental pollution as well as distortion of hair color, which affects accuracy. Because dark hair contains more of some basic ingredients due to increased melanin binding, interpretation of the results is difficult.

Our investigators discovered that there were multiple lawsuits pending against the two labs for false positive results. The companies deny the allegations.

The State of Michigan Child Protective Services has terminated its contract with Averhealth over claims of inaccurate test results. In Texas, the state Forensic Science Commission revoked Expertox's license after investigating allegations of inaccurate results and misconduct.

In Utah, media reports show that the state removed this company as a provider due to questions about its reliability.

In Georgia, an investigation found that DFCS leadership had been aware of serious problems since 2018. Documents obtained through open requests revealed dozens of emails, complaints and reviews from DFCS employees reporting various concerns about testing and training.

Averhealth concerns

A DFCS employee reported three false positives in an Averhealth case, while another employee said the company's tests were not 97 to 99 percent accurate. Yet another raised concerns about training and cross-contamination.

InvestigateTV also obtained a document that summarized a number of legal concerns, including one from a local district judge who said the court would no longer accept Averhealth's findings.

Averhealth officials declined interview requests but did answer several questions. “Georgia DFCS has never raised concerns about false positive or false negative test results.” Adding, “GA DFCS has never notified Averhealth of a credible concern or false result reported by Averhealth. Averhealth stands by the results of our CAP-FDT and CLIA certified laboratory.”

Concerns from Expertox

State records also show concerns about Expertox. An email chain revealed that a DFCS employee wrote about a mother's alleged false positive results due to either environmental factors or over-the-counter medications.

“This presents significant concerns about the validity of future screening results,” the DFCS official said.

Dr. James Bourland, Expertox's lab manager, said he was hired in 2022 “to address concerns about lab operations.” Dr. Bourland said he has since implemented a two-tiered approach to testing and confirmation.

Although Dr. While Bourland said there was no pattern of erroneous results, he acknowledged that he was aware of at least one recent false positive claim linked to the aforementioned email chain. After examining the claim, Dr. Bourland said he believes explanations about pollution or over-the-counter medications are plausible in this case, according to state records.

There is a test that is not required by DFCS that could help address concerns about false positive test results: D/L isomer. The method can detect legal forms of methamphetamine such as nasal spray or an inhaler, and Dr. Bourland said he will prioritize testing across Georgia.

“It’s just difficult to find a lab that can do this effectively,” he said.

This is a step Brittany Tucker wishes had come sooner. She has since started a business in her home that uses a heat press to implant images onto T-shirts. Her DFCS case is officially closed and her older children are finally home; Her young daughter was eventually adopted by a new family.

“I don't think this fear will ever go away, not just for me but for my children.” Tucker said, “It has caused a lot of trauma, hurt and pain that we are still healing from today. We’re all in therapy trying to get over it.”

DFCS responds

DFCS did not comment on this specific case, but said that when allegations of false positive results occur, it requires affidavits from laboratories that include details of chain of custody, testing methods and laboratory accreditation.

When asked why the agency is still conducting hair follicle testing, the agency responded, “There are evidence-based benefits to support the use of hair follicle testing, including a longer detection window and the ability to assess historical drug use patterns.” It is important to note that Testing restrictions apply to all sampling methods, including buccal swabs and urinalysis. DFCS offers a variety of sampling methods to address these limitations.”

“In most cases, DFCS will authorize the use of multiple collection methods for a single client if one method is preferred, but this depends on the circumstances. For example, if a collector finds that a customer has bleached their hair, they may also collect a urine sample for testing.”