Drug and Alcohol Testing
(Advanced Family Course – Text)

JUSTICE JASON K. PULLIAM
FOURTH COURT OF APPEALS
300 DOLOROSA, STE 3200
SAN ANTONIO, TEXAS 78205
TEL: (210) 335-2281
CHRISTINA MOLITOR
LAW OFFICES OF CHRISTINA MOLITOR, P.C.
423 EAST RAMSEY ROAD
SAN ANTONIO, TEXAS 78210
TEL: (210) 472-2200
FAX: (210) 340-0414
State Bar of Texas
ADVANCED FAMILY LAW COURSE
August 3-6, 2015
San Antonio, Texas
CHAPTER 25

 

JUSTICE JASON K. PULLIAM
FOURTH COURT OF APPEALS
300 DOLOROSA, STE 3200
SAN ANTONIO, TEXAS 78205
TEL: (210) 335-2281
Justice Jason Pulliam serves on the Fourth Court of Appeals in San Antonio, Texas. Governor Rick Perry appointed Justice Pulliam to the Fourth Court on January 8, 2015. Prior to serving on the court of appeals, Justice Pulliam was Judge of Bexar County, County Court at Law No. 5 from 2010-2014. As Judge of County Court at Law No. 5, Justice Pulliam handled criminal cases such as Driving While Intoxicated, Assault, Theft, Possession of Marijuana, and other violations of the Texas Penal Code. Justice Pulliam also presided over civil cases with a maximum jurisdictional limit of $200,000. Justice Pulliam made County Court No.5 available to hear matters from the Civil District Court Presiding system to assist the District Court Judges with cases. Prior to his service on the bench, Justice Pulliam worked for William “Bill” Ford at the law firms of Ball &Weed, P.C. and Ford & Massey, P.C. Justice Pulliam also served as a JAG or military lawyer in the United States Marine Corps from 2000-2004. In 2002, he was the recipient of the Eastern Region Defense Counsel of the Year award. Justice Pulliam graduated from Texas Southern University’s Thurgood Marshall School of Law with honors. He served as a senior staff member on the school’s law review. He earned a B.A. and M.A. in Political Science from Brooklyn College.

CHRISTINA MOLITOR
Law Offices of Christina Molitor, P.C.
423 East Ramsey Road
San Antonio, Texas 78216
Tel: (210) 472-2200
Fax: (210) 340-0414
christina@christinamolitor.com
LICENSES/CERTIFICATIONS
$ State Bar of Texas; Licensed 1995
$ Board Certified -Family Law, Texas Board of Legal Specialization; December, 2000
$ State Bar of New York, Licensed 2012
EDUCATION
$ Penn State, Dickinson School of Law, Carlisle, Pennsylvania; J.D. 1995
$ William Smith College, Geneva, New York; B.A. 1987
PROFESSIONAL ASSOCIATIONS
$ State Bar of Texas, Family Law Section; Member (1995 -present)
$ San Antonio Bar Association; Member (1996 -present)
$ Texas Academy of Family Law Specialists; Member (2000 -present)
$ San Antonio Family Lawyers Association; Member, Director & Officer (2000 -present)
$ Collaborative Professional Association of San Antonio; Member, Director & Officer (2009 -present)
$ Collaborative Law Institute of Texas; Member (2009 -present)
$ Texas Family Law Foundation (2012 -present)
$ New York State Bar Association (2012 -present)
$ American College of Assisted Reproduction and Adoption Lawyers (2012 -present)
$ American Society for Reproductive Medicine -Legal Professionals Group (2012 -present)
$ State Bar of Texas, Family Law Council; Director (2014 -present)
$ American Academy of Assisted Reproductive Technology Attorneys, Fellow (2015)
RECOGNITION
$ Texas Super Lawyers (Family Law) -As printed in Texas Monthly Magazine (2010 -2013)
$ San Antonio’s Best Lawyers -Scene in SA Magazine (Family Law -2010, 2012 -2014; Collaborative
Law 2012 -2014)
$ The Best Lawyers in America; Family Law (2015)
PRESENTATIONS
Presenter and Co-Presenter on collaborative law for San Antonio Family Lawyers Association and
Collaborative Professional Association of San Antonio (2009 -present)
$ Moderator; Judges’ Panel, “Attorney’s Fees: How Can I Get Sum?” San Antonio Family Lawyer’s
Association (April 3, 2012)
$ Author and Presenter, The Fundamentals of Evidence; Marriage Dissolution Course sponsored by State
Bar of Texas (April 25, 2012)
$ Author and Presenter, Temporary Orders; Marriage Dissolution Course sponsored by State Bar of Texas
(April 17, 2013)
Author and Presenter, Discovering the Marital Estate, Marriage Dissolution Course sponsored by State
Bar of Texas (April 24, 2014)
$ Author and Presenter, Child Support: Tax Returns and Beyond, Advanced Family Law Seminar
sponsored by State Bar of Texas (August 4-7, 2014)
$ Author and Presenter, Child Support: Tax Returns and Beyond, Advanced Family Law Seminar, Title IV
D Associate Judges Program sponsored by State Bar of Texas (August 6, 2014)
$ Author and Presenter, The Low Tech Courtroom -Tips for Using “Old School” Technology, Family Law
Technology Course sponsored by State Bar of Texas (December 5, 2014)

 

$ Author and Presenter, Discovery Outside the Forms, Marriage Dissolution Course sponsored by State Bar of Texas (April 10, 2015)

TABLE OF CONTENTS

  1. Acknowledgment………………………………………………………………………………………………………………….2
  2. Overview of DrugTesting……………………………………………………………………………………………………..2

III. Urine Testing ……………………………………………………………………………………………………………………….3

  1. Hair Testing …………………………………………………………………………………………………………………………4
  2. Nail Testing………………………………………………………………………………………………………………………….6

 

  1. EtG and EtS Alcohol Test – Urine…………………………………………………………………………………………..7

VII. EtG and EtS Alcohol testing -Hair & Nails……………………………………………………………………………..8

  • Admissibility of Drug & Alcohol Test Results …………………………………………………………………………8
  1. Termination Cases and Criminal Cases ……………………………………………………………………………………8
  2. Non-Termination SAPCR………………………………………………………………………………………………………9
  3. Your Client Tested Positive, Now What?……………………………………………………………………………….10
  4. The Court Excluded the Test Results, Now What?. …………………………………………………………………10
  5. Party’s Refusal to Test………………………………………………………………………………………………………….10

 

  1. SCRAM & SOBERLINK…………………………………………………………………………………………………….11
  2. SOBERLINK……………………………………………………………………………………………………………………..11
  3. Recovery Healthcare……………………………………………………………………………………………………………11
  4. Admissibility of SCRAM & SOBERLINK Results…………………………………………………………………11
    APPENDIX A……………………………………………………………………………………………………………………………….13
    APPENDIX B……………………………………………………………………………………………………………………………….14
    APPENDIX C……………………………………………………………………………………………………………………………….16
    APPENDIX D……………………………………………………………………………………………………………………………….17

 

  1. Acknowledgment

This paper incorporates CLE articles which Jim Turnage and Thomas A. Greenwald authored and presented at the Advanced Family Law Conference in prior years. We thank them for their fine work and for graciously permitting us to use their papers to prepare this article for the 2015 Advanced Family Law Conference.

  1. Overview of Drug Testing

Most drug tests are performed by urine analysis. The second most common test is hair, followed by nails, saliva and sweat. Regardless of the sample being tested, most labs use multiple drug test panels or screens in the initial test. The multi-drug screen allows you to run several drugs using one device and one sample. It is important to know before the test is performed what test panel is being administered and what drugs are included in the panel. Drugs tested in one panel may vary greatly based on the testing company, the lab and the cost. The following drugs are included in the most common test panels but others may be added if specifically requested: Amphetamines, Barbiturates, Benzodiazepines, Cocaine, Cannabis (THC), Methadone, Methamphetamines, Opiates, PCP and MDMA (Ecstasy), & Propoxyphene.

There are two primary methods used to screen or test for drugs. The initial screen is immunoassay and confirmations performed by Gas Chromatography/Mass Spectrometry (GC/MS), Gas Chromatography/Mass Spectrometry/Mass Spectrometry (GC/MS/MS), or Liquid Chromatography/Mass Spectrometry/Mass Spectrometry (LC/MS/MS).

Immunoassay is the most commonly used method to initially screen samples. It is a rapid process that can test many samples per run. It works on the principle of antigen-antibody interaction. Antibodies are chosen which will bind selectively to drugs or their metabolites. The binding is then detected using either enzymes, radioisotopes or fluorescent compounds. Any positive found in the screening process must be confirmed by a second method that is not immunoassay.

Confirmation test by GC/MS, GC/MS/MS or LC/MS/MS is used in the event that drugs or their metabolites are detected in the initial screening test. The sample is tested again using one of the more sensitive methodologies for the confirmation test. These are the most precise tests for identifying and quantifying drugs or their metabolites. It involves a two-step process, whereby Gas Chromatography separates the sample into its constituent parts and Mass Spectrometry identifies the exact molecular structure of the compounds. The combination of Gas Chromatography/Mass Spectrometry or one of the other confirmation methods is considered to be the definitive method of establishing the presence of drugs or their metabolites.

The Substance Abuse and Mental Health Services Association (SAMHSA) provides guidelines for what qualifies as a positive drug test. If a test does not give results higher than the guidelines or cut-off level, it does not qualify as a “positive” test. If an immunoassay test gives positive results, a second confirmation test must also give positive results before the results are released as positive.

In general, cut-off levels for urinalysis have been established to reduce the possibility of external or incidental exposure to drugs such as passive inhalation of marijuana. SAMHSA’s recommended cut-off levels for forensic urinalysis tests are expressed in nanograms per milliliter (ng/ml). Nail and hair cut-off levels are expressed in picograms per milligram (pg/mg).

A metabolite is any substance produced during metabolism. In drug use, the term usually refers to the end product that remains after metabolism. In other words, the body changes the parent drug to a metabolite. When a sample is given for drug testing, it will usually be tested for the drug itself (parent) and the substances (metabolites) produced by the body when it processes (metabolizes) the drug. The existence of a drug’s metabolite confirms that a person ingested the drug. For example, if a drug test showed a positive for benzoylecgonine and norcocaine then the person being tested ingested cocaine. See Appendix A for a list of several drugs and its metabolite(s).

Commonly ingested substances such as vitamins, penicillin, aspirin, caffeine and acetaminophen (Tylenol), will not affect the results of a drug test. The tests are drug and drug metabolite specific. Because these commonly ingested substances are chemically and structurally different after being metabolized, they will under most circumstances not interfere with or compromise test results.

Prescription Medications. There are some prescription and non-prescription medications that will affect a drug test. There are prescriptions that contain the same drugs that are commonly found in street drugs. There is no easy way to distinguish between the two forms of the drug. However, the problem is not entirely insurmountable as it would seem.

There are no prescriptions for PCP. It is extremely rare to find cocaine used in a medical setting, although it happens occasionally, usually during nasal surgery or to control bleeding from the eye or nose. If used, it will be well documented in the person’s medical file. Such use would cause the urine to test positive for cocaine metabolite for approximately 6 hours. It would not be sufficient quantity to cause a positive nail or hair test.

It is possible but highly unlikely that poppy seeds will be the cause of a positive morphine or codeine test. SAMSHA certified labs and most other labs test all positive morphine samples for heroin (6-AM) to help ascertain the origin or source of the positive morphine. Other prescribed opiates may occasionally cause a positive screen but are sorted out in a confirmation test.

There are some prescription diet pills that contain amphetamine or methamphetamine. For example there is a drug for Parkinson’s disease that contains methamphetamine. Some doctors prescribe amphetamines for ADHD. Ecstasy is included in the amphetamine class of drugs and is specifically identified by the confirmation test.

When a person submits to a drug test, he or she should be required to provide the collection agency with a list of all prescribed medications unless it is a pre-employment test. There are literally hundreds of brand name and generic drugs being prescribed today. If the individual being tested takes prescribed medication, you will need to know the name or classification of that medication to determine if it will test positive on any of the specific drug test panels, i.e. opiates, amphetamine, methamphetamine, benzodiazepines, barbiturates etc. To research prescription drugs, you can visit websites such as http://www.rxlist.com, and enter the name of the prescription drug to determine its general classification and pharmacology.

Heroin, morphine and codeine are all derived from opium or the opium chemical structure and are in the Opiate class of drugs. The difference is primarily in the manner in which opium is refined or synthetically manufactured and the form and method of delivery. Heroin quickly metabolizes to 6-AM and then to morphine in 8 to 24 hours. The cause of a morphine positive test is from prescribed morphine, heroin, or codeine that has metabolized to morphine.

Both amphetamine and methamphetamine are potent agents which produce physiological effects similar to those caused by activity of the sympathetic nervous system. Methamphetamine metabolizes into amphetamine in the body at approximately a 10 to 1 ratio. A higher level of amphetamine exceeding the 10 to 1 ratio probably indicates the donor is also taking a prescribed amphetamine at the same time as using methamphetamine. There will not be methamphetamine levels on a drug test if the person is taking only a prescribed amphetamine. For example, an amphetamine such as Adderall does not metabolize to methamphetamine.

III. Urine Testing

Under the U.S. Department of Transportation (DOT) and federal testing guidelines, drug testing has two cutoff levels for positive detection. That is, labs that follow the guidelines consider drug testing to be negative if detection is below either cutoff level. In the case of urine analysis, drug testing cutoff levels are measured in nanograms per milliliter (ng/ml). For example, an initial screening for marijuana must show at least 50 ng/ml, and then the confirmatory tests must be at least 15 ng/ml. If the initial screening doesn’t show at least 50 ng/ml, then it’s considered to be negative and the confirmatory tests aren’t performed.

All other testing, such as court ordered testing, is considered non-federal or non-DOT. The screening level for marijuana can be as low as 20 ng/ml to extend the window of detection in a urine test. The lab can also perform a Limit of Detection (LOD) or Limit of Quantitation (LOQ) test using the lowest possible cutoff levels. The LOD or LOQ, such as court testing, should be used only in certain case scenarios to determine if a specific drug has been used.

Screening and confirmation testing are performed using different testing methodologies that precipitate different cutoff levels. The immunoassay tests used to perform initial drug screening are designed to detect a wide range of chemically similar compounds that react with the antibodies which are at the core of the chemistry making up the tests. In contrast, GC/MS confirmatory testing detects specific metabolites that provide identification and quantification of a specific drug.

For example, marijuana has approximately 5 metabolites that the immunoassay will identify. The total nanogram level is the sum of all 5 metabolites. The GC/MS confirmation identifies only one of the 5 metabolites and reports the level of only that metabolite. The GC/MS quantitation level is reported on the lab report and never the immunoassay screening level.

The most common method of sample manipulation to avoid a positive drug screen is getting the urine creatinine below 20 mg/mL. Creatinine is the normal metabolic waste in urine. The level of creatinine is the primary means to determine if a donor is attempting to alter or manipulate his or her test results below the cutoff level. Because the creatinine is excreted from the body at a constant rate, there are expected values for creatinine in normal human urine. Normal creatinine levels in urine are between 100 and 200 mg/dL. The creatinine level is considered low or abnormal if it is between 6 and 20 mg/mL. The sample is considered substituted if the creatinine value is 5 mg/dL or less meaning the sample is not consistent with human urine. To lower the creatinine level, the donor has poured something into the urine such as water or consumed excessive liquids to get the creatinine level below 20 mg/dL. This alters or cuts the concentration of a consumed drug by 10 to 24 time, usually putting the drug level below the cutoff level. The result is a false-negative drug test. To eliminate this problem, order the donor to provide a witnessed collection. This means a collector of the same gender actually observes the sample going into the collection cup. Also, allow a person a maximum of 3 hours or less from notification to taking a urine test. Exceptions exist, such as a doctor performing surgery or a lawyer in the middle of a trial, but never allow a person to test the next day after notification.

Other forms of sample adulteration are the in-vitro addition of adulterants or additives into the specimen sample to destroy the chemical react ion properties of lateral flow.

The urine specimen may not be valid if the temperature is not within a certain range. The average temperature of a non-witnessed urine sample returned to the collector is 95 to 97 degrees. The temperature of the collection container will drop the temperature of the urine slightly plus the time it takes to return the sample to the collector must also be considered. Any temperature outside this range may not be the donor’s specimen meaning an adulterant has been added to the sample or a substituted sample. A perceptive and properly trained collector will make a decision to reject or accept the sample if the temperature is out of range. A witnessed collection will eliminate the problem with donors attempting to substitute or alter a urine specimen. A second sample is normally requested when the first is rejected for improper temperature or suspicious activity. The above guidelines are not for DOT or federal drug testing.

Drug testing by urine is designed only to detect whether or not a specific drug or drug metabolite is present at the biological moment the sample is collected. While there are very broad estimates as to how long a particular drug may have been in the system, the drug test is not intended to include a time variable. Appendix B illustrates typical drug detection periods. The urine test can only detect whether or not a specific drug or drug metabolite is present at the time the test is performed. Many factors unique to the individual being tested determine the actual half-life of the particular drug including such variables as age, metabolic rate, overall health, body hydration, amount of drug consumed over what period of time, strength of the drug, etc. Therefore, no conclusions can be drawn as to when a particular drug was taken or how much was consumed. Only assumptions can be made.

In reality, urine concentrations above the cutoff sensitivity level of the test, or a positive result, are not possible by exposure to second hand smoke in normal conditions found in a car, home or concert. This is not a valid claim for any smokable form of drug.

  1. Hair Testing

Drugs are incorporated into hair by 3 main routes. First is environmental exposure. If an individual is exposed to drug smoke or particulate matter, the drug will physically transfer the parent drug to the hair and bind to it. Second is from the sweat and oil of the scalp. The sweat and oil from the scalp contain drug and drug metabolites. As these fluids bathe the hair shaft, they deposit the drug onto the hair where it binds and is available for analysis. Third is from the blood. As the blood travels through the follicle, it deposits drug and drug metabolites into the core of the hair.

It takes approximately 4 to 5 days from the time of drug use for the affected hair to grow above the scalp and for the drug to start to show up in a person’s hair. The thickness of the scissors used to cut the hair as close as possible to the scalp is a factor. Adding this to the hair growth rate, the test results will not indicate any drug use in approximately the first two weeks starting with the date the hair was collected. In other words, your window of detection starts two weeks before the hair was collected.

Body hair growth rates are slower and cannot be utilized in the same manner as head hair to determine a timeframe of drug use. Body hair grows for 7 to 12 months and then becomes dormant. It falls out and new hair begins to grow. Although the lab report may state approximately 12 month window of detection, it is by no means a 12 month test in all cases.

Once the drug and drug metabolites are incorporated into hair, they begin to slowly leach out due to normal daily hygiene and exposure to the elements. Head hair grows on average at 0.5 inches per month. After approximately 3 months, most drugs begin to leach out below the level of detection or to a level not representing an accurate indication of drug use. As such, a standard head hair test covers a period of approximately 90 days.

A standard test with GC/MS confirmation requires 60+ milligrams of hair or approximately 90 to 120 strands. The thickness of different types of head hair (thick coarse vs. thinning fine) is one reason for this variation.

The optimum length of head hair is 1.5 inches. The hair sample is cut as close to the scalp as possible and the most recent 1.5 inches are tested. Upon receipt at the laboratory, the root end is identified and the specimen is cut at 1.5 inches, which represents approximately 3 months of growth. The excess length of hair is sealed and remains with the original sample by most labs. 1.5 inches in length and 90 to 120 strands of hair allows for an initial immunoassay test, 2 to 3 confirmation tests and a small amount left over for a referee lab, if needed, for re-test.

Hair collected from a brush can be used but a timeframe of use cannot be determined. Normally the test results from a brush are not admissible in court.

A reputable lab will always perform a confirmation test of all positive hair results found in the initial screen. The confirmation utilizes GC/MS, GC/MS/MS or LC/MS/MS for all specimens that screen positive in the initial test.

The standard hair test is a 5-drug panel test which consists of:

$ Cocaine and its metabolites
$ Methamphetamine, amphetamine, MDMA (Ecstasy), MDA (Ecstasy metabolite)
$ Opiates, morphine, codeine
$ Phencyclidine (PCP)
$ Marijuana

 

The following additional drugs can be tested in the hair:

$ Benzodiazepines (diazepam metabolites) $ Barbiturates $ Opates, (additional prescribed not listed above) $ Methadone and EDDP (metabolite) $ Propoxyphene metabolite $ Oxycodone $ Meperidine $ Tramadol $ Fentanyl $ Sufenanil

The cut-off level for each drug varies depending on the type of drug and the lab conducting the test. An example of the cut off levels can be found in the chart under Appendix C. The most common unit of measurement of drugs in hair (and nails) is picogram per milligram (pg/mg). The chart also provides an approximate usage rate based on the level reported on the lab results. (source Omega Labs).

Enzyme-immunoassay antibodies (EIA), similar to those used to test urine, are used for the initial screening test for drugs of abuse in hair; therefore the potential for substances such as over-the-counter medications to cause a false positive screening result does exist. To eliminate the possibility of reporting a false-positive due to cross-reactivity, the lab should automatically confirm by GC/MS, GC/MS/MS or LC/MS/MS all positive initial tests.

All hair samples are usually washed extensively to remove external contamination before screening begins. The lab tests for the metabolite of the parent drug to rule out environmental contamination or exposure. For example, to rule out the possibility of external contamination for marijuana, the labs detect only the metabolite (THC-COOH) which is only produced by the body and cannot be an environmental contaminant. If the ratio of the wash solution is greater than 10% of the confirmation result, the lab will consider this sample still contaminated. If the ratio of the wash solution is less than 10% of the confirmation result, the lab will consider the sample as positive.

A lab test is available to determine if a child has been exposed to the smoke from illegal drug use. Meaning if only the parent drug is found and no metabolites, the report will state positive for the parent drug only. This test can be used to determine if a child or infant has been exposed to illegal drug use by the parent or others. It is important not to wash the child’s hair after exposure and before collecting the sample to be tested. The test will indicate the presence of the parent drug and not the metabolite proving the child is in the environment where drugs are being used.

It takes multiple uses to test positive in hair under normal drug use. A one-time use of the average amount of drug will not be above the cutoff level. A person claiming he or she used one time is not a valid claim for a positive test results in most cases. The exception may be a person on a continuous binge for several days and that person claims that as a one time use.

Extensive bleaching, perming and dyeing may damage the protein matrix of hair allowing a portion of the drug within the hair to be extracted, thus lowering the final quantitative result with certain drugs. Normal hair care using common hair products (shampoos, conditioners, sprays, mousses or gels) helps to remove external contamination and has a minor effect on removing the drug from the core of the hair.

Some shampoos designed and sold with the intent to cleanse the hair of drugs and other toxins have varying degrees of effectiveness. One product on the market will cut the level of drug in half each time it is used. The chemical in the shampoo will burn the scalp or skin after several applications preventing extensive use. A chronic user can lower the level but probably cannot eliminate the drug below the cutoff level. But a recreational user, starting with a low level, will probably be below the cutoff level resulting in a negative hair test.

In side-by-side comparison studies with urinalysis, hair drug testing has uncovered significantly more drug use. In two independent studies hair drug testing uncovered 4 to 8 times as many drug users as urinalysis. The primary reason for this difference is due to the longer window of detection for hair compared to urine. Drug users are very educated on drug testing. He or she will refrain from drug use for several days when they know a urine test is imminent resulting in a negative urine test. They will substitute or adulterate the urine sample if the collection is not witnessed resulting in a negative test. Many people will buy shampoos to cleanse the hair but still fail the test as explained previously.

  1. Nail Testing

Drugs of abuse actually have been measured in nails since 1984. However, it is relatively new to the drug testing industry in the United States. Several reasons can be attributed to this. One is the need for longer detection periods that the nail test provides. But probably more significant was the increase in number of products on the market to negate urine testing and individuals shaving their head and body to avoid a hair test or using special shampoos to remove the drug from the hair. This has brought the nail testing to the forefront as a needed and useful alternative.

Like hair, fingernails and toenails are composed of a hard protein called keratin. Drugs are incorporated into nails from the blood stream and remain locked in the nail as it grows. Nails grow in both length and thickness. Drugs enter the nail from the base (cuticle end) as the keratin is formed and via the nail bed that extends under the full length of the nail.

The distal end or free end of the fingernails and toenails are clipped for testing. If length does not allow, the surface can be shaved but is not the preferred sample. If the surface is scrapped using a razor blade (a medical device) then this one procedure probably requires the collector to follow HIPAA requirements. Acrylic nails must be removed prior to collecting the nail sample.

The method of screening for drug use in nail tests is the same as hair, immunoassay. The nail is put in a chemical solution to remove external contaminants and then liquefied. All drugs found in the initial screen are confirmed by one of the methods previously explained.

Drugs can be identified in nail clippings 2 to 4 weeks following ingestion and can be detected from 3 to 8 months or possibly longer. The broad range is based on numerous factors. Fingernails grow (approximately .12 inches per month) faster than toenails (approximately .042 inches per month), longer fingers grow faster than short fingers, age and gender of the person, the time of year, the food the person eats, the dominant hand grows faster than the other hand, etc.

There is one product on the market that purports to ensure that the drug abusing individual passes the fingernail test. It has not proven to be effective at this time.

If a person handles cocaine on a regular basis, it is possible for the person to be positive for parent cocaine. Nails are porous allowing the cocaine to absorb into the nail. It is important to remember that the nail test results will only be positive for the parent drug cocaine at a very low level and NOT the metabolites of cocaine which are norcocaine and benzoylecgonine.

If the metabolite cocaethylene (alcohol) is positive on a nail or hair test, it proves that the person consumed alcohol at the same time as the cocaine.

  1. EtG and EtS Alcohol Test – Urine

Alcohol is rapidly eliminated from the body at a rate of approximately one drink per hour when testing breath, blood, saliva or urine, using the standard technology. The rapid elimination limits the detection of alcohol to a matter of hours.

For example an individual who was “under the influence” of alcohol using standard technologies (breath, blood or saliva > 0.8%) at 10 PM would likely test negative the next morning at 9 AM due to the rapid elimination of alcohol from the body.

After years of research, Ethyl Glucuronide (EtG) and Ethyl Sulfate (EtS) were found to be a direct metabolite of the alcohol (ethanol). EtG/EtS has emerged as the marker of choice for alcohol and due to the advances in technologies is now routinely available. Its presence in urine may be used to detect recent alcohol consumption, even after ethanol is no longer measurable using the older methods. The presence of EtG/EtS in urine is a definitive indicator that alcohol was ingested. Other types of alcohol, such a stearyl, acetyl and dodecanol, metabolizes differently and will not cause a positive result on an EtG/EtS test.

The EtG/EtS test has become known as the “80 hour test” for detecting any amount of consumed ethyl alcohol. This is a misnomer. It is true that EtG can be detected in chronic drinkers for 80 hours or even up to 5 days but not from a person that only consumed 2 or 3 drinks. During the period of chronic use, the EtG level can exceed 100,000 ng/mL. A level of 1.25 million was found in one sample. Two primary factors to determine the window of detection is based on volume of alcohol consumed and the time between each drink. A person that consumes 3 drinks can only have a detectable level of EtG for approximately 20 to 24 hours. The level peaks at approximately 9 hours with an EtG level around 15,000 ng/mL.

The presence of EtG and EtS in urine indicates that ethanol was ingested. EtG/EtS is stable in urine for more than 4 days at room temperature. Recent experiments indicate that heating urine to 100 degrees C actually increased the stability. Therefore, heat does not cause the breakdown of EtG/EtS. In addition, no artificial formation of EtG/EtS was found to occur following the prolonged storage of urine at room temperature fortified with 1% ethanol.

EtG/EtS is a direct metabolite of alcohol (ethanol), and its detection in urine is highly specific, similar to testing for other drugs. The typical lab utilizes the most sophisticated, sensitive, and specific equipment and technology available, LC/MS/MS, to screen, confirm, and quantify EtG/EtS. This methodology provides highly accurate results.

EtG/EtS is only detected in urine when alcohol is consumed. This is important since it is possible to have alcohol in urine without drinking. Alcohol in urine without drinking is due to the production of ethanol in vitro. Ethanol in vitro is spontaneously produced in the bladder or the specimen container itself, due to fermentation of urine samples containing sugars (diabetes) and yeast or bacteria. Since the ethanol produced is not metabolized by the liver, EtG/EtS will not be produced and will therefore not be detected in a urine containing alcohol as a result of fermentation.

Tests show that “incidental exposure” to the chronic use of food products (vanilla extract), hygiene products, mouthwash, or OTC medications (cough syrups) can produce EtG/EtS concentrations in excess of 100 ng/mL. However, if EtG is detected in excess of 250 ng/mL, then this is very strong evidence that beverage alcohol was consumed.

Most labs will allow you to select 100, 250 or 500 ng/mL as the cutoff level. It is strongly recommended that only the 500 ng/mL level be used. This avoids and eliminates any claim by the donor that the positive EtG test is a result of incidental or unintentional exposure. All testing performed on products or foods classified as incidental or unintentional exposure has never produced a positive EtG level greater than 500 ng/mL.

The benefits of an EtG and EtS urine test include:

$ Detects recent usage more accurately and for a longer period of time than standard testing

$ No false positives
$ No EtG and EtS found in non-drinkers
$ Ideal for zero tolerance and abstinence situations
$ Strong indicator of alcohol ingestion within the previous 3 to 5 days
$ EtG and EtS is only evident when alcohol is consumed and is not produced as a result of fermentation
$ Allows monitoring in alcohol treatment programs
$ Acts as an early warning system to detect trends towards relapse

 

VII. EtG and EtS Alcohol testing -Hair & Nails

EtG alcohol testing is now being performed also in hair and nails. The window of detection is approximately 3 months for hair and nails. But be aware that bias does exist when comparing male and female hair. Recently an Italian study reported that bleaching the hair completely destroys EtG. Another study with water from a commercial pool was performed to determine the effects of chlorine. Hair exposed to the pool water found that two, 20 minute exposures reduced EtG by approximately 20%. It was found that this did not have any affect to alter or reduce the drug levels in nails. Based on these facts alone, it is recommended that only nails be used to test for EtG and EtS, not hair.

This test will not pick up casual drinking. The individual must be a binge drinker to get above the cutoff level. Binge drinking is normally defined as 4 or more drinks within a two hour period for females and 5 or more drinks for males. It also requires a total consumption of at least 20 or more drinks per month for females and 40 or more for males.

VIII. Admissibility of Drug & Alcohol Test Results

  1. Termination Cases and Criminal Cases. The standard on which admissibility of laboratory reports are admitted differs based on the nature of the case. The standard is higher in termination cases than in other civil cases, such as suits affecting the parent child relationship where termination is not sought. One case observed that, “The rights involved in a termination of parental rights case are more important than any property right.” In JFC, 96 S.W.3d 256 (Tex. 2002). Due process requires that the issue be established by clear and convincing evidence, instead of the normal civil standard. Tex. Fam. Code § 101.007. When judging the sufficiency of evidence, courts must apply a more stringent standard than in other civil cases. In re CH, 89 S.W.3d 17 (Tex. 2002). “In light of these distinguishing features of termination of parental rights cases to other civil cases, we deem it inappropriate to apply the more relaxed standard in determining the admissibility of these records.” In the Interest of KCP and JDP, 142 S.W.3d 574 (Tex. App-Texarkana 2004). The Texarkana court further stated that in termination cases, the test for admissibility of laboratory test results should comply with the rule stated in criminal cases. Id. at 580.

Trustworthiness is the primary difference in the admission of drug test results in criminal and termination cases versus non-termination SAPCR cases. An examination of case law in several criminal cases regarding admission of drug test results is therefore instructive as to the requirements to admit such results into evidence in a termination trial.

In Strickland v. State, 784 S.W.2d 549 (Tex. App.-Texarkana 1990), the Court articulated that the proper predicate for admission was established when the record showed:

1) the tests used were standard tests for a particular substance;
2) the record was made by a person who had personal knowledge of the test and the test results; and
3) the results of the tests were recorded in records kept in the usual course of business of the laboratory.
In Philpot v. State, 897 S.W.2d 848 (Tex. App.-Dallas 1995), the Dallas Court of Appeals also applied the Strickland standard and excluded laboratory test results where there was no evidence of any of these three elements. The Texarkana Court of Appeals ruled In the Interest of KCP and JDP, 142 S.W.3d 574 (Tex. App.-Texarkana 2004) that drug test results in a termination case were inadmissible where there was no evidence of the qualifications of the person who tested the specimens, the types of tests administered, or whether such tests were standard for the particular substance. Id. at 580. Essentially, the first two elements articulated in the Strickland case were absent, and as such, the tests were shown to lack trustworthiness.

In summary, for criminal and termination cases, the first two elements for admission of drug test results articulated in the Strickland case establish the trustworthiness of the records, and the third element is intended to satisfy the criteria for other business records. Therefore, if using a business records affidavit to prove up the test results in a termination case, the business records affidavit must include statements sufficient to satisfy the first two elements of the Strickland case.

In an interesting aside, the Fourteenth Court of Appeals upheld the trial court’s decision to not admit the test results in a juvenile case where the urine sample was not tested for adulterants. In the Matter of JAC, 205 Tex. App. Lexis 4519 (Tex. App.-Houston 14th Dist., June 14, 2005). The drug test results in their entirety were rendered unreliable and inadmissible. Id. The Court explained that the test was not a complete analysis without the testing for adulterants, and therefore the test in that case was not properly applied. Id.

Even with the more stringent standard in criminal and termination cases, the following are not required to admit drug test results into evidence: 1) the custodian or qualified witness does not need to have created the records or be an employee of the same company; and 2) a qualified witness need not have personal knowledge of the contents of the records. Montoya v. State. 832 S.W.2d 138 (Tex. App.-Fort Worth 1992).

  1. Non-Termination SAPCR. The standard for admission of laboratory results as business records in a non-termination SAPCR is “more relaxed” in the words of the KCP court. The Fort Worth Court of Appeals, in a SAPCR proceeding, specifically found that in order for drug test results to be admitted as business records there does not have to be a showing of the following in the business records affidavit: 1) a person with personal knowledge of the tests made the entries on the records; 2) the qualifications of the person conducting the test; 3) the tests were standard tests; and 4) the type of equipment that was used in the test. In the Interest of AT, 2006 Tex. App. Lexis 1882 (Tex. App.-Fort Worth, March 9, 2006). The Fort Worth case also cited the March case (another civil case) for the proposition that the rules of evidence do not require a sponsoring witness or affiant to explain trustworthiness of results but only set forth facts upon which an assessment of trustworthiness can be made by the court. Id., citing March v. Victoria Lloyds, Inc. Co., 773 S.W.2d 785 (Tex. App.-Fort Worth 1989). The March case also holds that business records containing laboratory results are admissible and sufficiently trustworthy by showing who drew the sample, when the sample was drawn, that it was received by a laboratory, and that a toxicologist analyzed the sample and reported the result. Id. at 788. In the AT case the urine test was requested and conducted at a hospital, and the business records of the hospital reflected the results of the test. The drug test records of the hospital were held to be sufficiently trustworthy in that the records stated that the doctor had ordered the tests, the times that the sample was collected and results received by the hospital, and the result for the test. Id.

However, there are some limitations on admission of test results in a civil case. In AT the court held that drug tests were not admissible based on the business records affidavit of the hospital that collected the sample where the hospital did not conduct the test but sent the samples to a referral lab. The actual results of the tests were not in the hospital’s file but were noted as positive in the hospital’s medical records. The summary page in the hospital’s record did not state what was tested, who took the sample, when the sample was taken, or what laboratory conducted the testing. In the Interest of AT, 2006 Tex. App. Lexis 1882 (Tex. App.-Fort Worth, March 9, 2006).

Frequently drug test samples are collected at one location and are sent to another location that will actually perform the test. However, this does not necessarily mean that the lab conducting the test must provide the custodian or qualified witness to prove up the records. Business records originally authored by one entity, but which became another entity’s primary record of information about an underlying transaction are admissible as business records of that entity. Garcia v. Dutcher-Phipps Crane and Rigging Company, 2002 Tex. App. Lexis. 9375 (Tex. App.-El Paso, March 28, 2002), citing GT & MC, Inc. v. Texas City Ref., Inc., 822 S.W.2d 252 (Tex. App-Houston 1st Dist. 1991). Also, a business can retain the record of a separate business as its business records if the business has verified the accuracy of the separate business’ records. Duncan Development Co. V. Haney, 634 S.W.2d 811 (Tex. 1982). Using a business records affidavit from the collection facility is therefore likely to be sufficient in non-termination SAPCR cases, yet inadequate in termination cases which require compliance with the Strickland criteria previously discussed.

  1. Your Client Tested Positive, Now What? When a drug test ordered by the court is positive, avoid objecting to the testing results merely to prevent its entry unless there is a good faith reason to believe that the test is wrong, inaccurate, or untrustworthy. As a practical matter, the test results will likely come into evidence at some point during the preceding. The presence of an objection by the tested person obviously indicates a positive result. Objections as to the result on a point of evidence that does not call into question the results of the test could raise questions in the court’s mind about the readiness of the tested person to acknowledge the problem and work toward rehabilitation.

Courts generally attempt to craft orders that ensure the subject child will have two healthy, capable, and active parents. Most courts will be responsive to parties with substance abuse problems that admit the problem and work diligently to be clean and sober. After a positive test, the court may order remedial measures such as random testing, limited possession, substance abuse treatment, family therapy, and counseling. A party with a positive test result will normally be better served by willingly following the court’s remedial orders rather than attacking the results or testing methodology. In fact, after a positive test result, a party will probably obtain the best possible outcome in court by having a detailed plan ready to submit to the court that demonstrates a commitment to work toward continued sobriety.

If there is a basis to assert that the test results are inaccurate or unreliable, then a person with expertise in conducting and interpreting the test at issue should be retained as a testifying expert to challenge the results or as a consulting expert to assist counsel in understanding the flaws in the test results and to craft a strategy for attacking the results, including the preparation of cross examination for any expert that will testify in support of the test results. If exclusion or discrediting drug test results is an important part of the case, then it is best for an expert in this field of science to direct that part of the case.

  1. The Court Excluded the Test Results, Now What? If objections are raised and sustained to admission of drug test results, all is not lost. Counsel attempting to admit drug test results in such a circumstance should consider requesting a recess of the hearing. The court likely wants to see the results of the test, especially if the test was court ordered. The court recessing the hearing would allow a subpoena to be issued to the custodian of records for the entity holding the drug test results. If a recess is denied, ask the tested person leading questions about his or her illegal drug use, based on the drug test result that was not admitted. If the witness claims not to remember, ask permission of the court to show the drug test results to the witness to refresh the witness’ recollection. If the witness invokes the Fifth Amendment in response to questioning on illegal drug usage, remind the court that it can draw a negative inference in a civil case by the invocation of that right. In re C.F.J., 134 S.W.3d 343(Tex. App. – Amarillo 2003); Tex. R. Evid. 513(c). Also keep in mind that other evidence may be offered to support the allegations of drug abuse in the form of testimony from the other party and third party witnesses as to drug use, behavior of the tested party, and things that the tested party might have said regarding illegal drug use.
  2. Party’s Refusal to Test. If a party refuses to take a drug test during the pendency of the case, such refusal does not necessarily mean there is no evidence of that party’s illegal drug use. The court can infer illegal drug use by a party’s refusal to take a drug test. In the Interest of CR, 263 S.W.3d 368 (Tex. App. -Dallas 2008); In the Interest of KCB, 280 S.W.3d 888 (Tex. App.-Amarillo 2009); In the Interest of ZDG, 2010 Tex. App. Lexis 4388 (Tex App.-Fort Worth, June 10, 2010). The court may also infer illegal drug use by shaving of head hair or body hair in order to avoid being tested. In the Interest of ZDG, 2010 Tex. App. Lexis 4388 (Tex App.-Fort Worth, June 10, 2010).
  3. SCRAM & SOBERLINK
  4. SCRAM

A Secure Continuous Remote Alcohol Monitor (“SCRAM”) can be used to monitor an individual’s alcohol consumption over an extended period of time. The individual wears the SCRAM monitor on his or her ankle, and the device samples the individual’s perspiration to test for alcohol every 30 minutes. At the end of the day, the individual plugs the monitor into a phone line to download data from the device. Aside from the initial appointment, there are no trips to the lab required for testing.

SCRAM also offers SCRAM Remote Breath. The SCRAM Remote Breath is a handheld, wireless breath alcohol device with facial recognition software to confirm the identity of the user.

  1. SOBERLINK SOBERLINK offers fairly new technology to monitor alcohol use that is less intrusive than a SCRAM bracelet or interlock device. It uses a handheld portable breathalyzer that connects wirelessly to a SOBERLINK monitoring portal. The individual breathes into the breathalyzer and the device conducts the breath test and takes a picture of the user to

confirm the user’s identity with adaptive facial recognition software. The results are then transferred wirelessly to the private SOBERLINK monitoring portal for real-time results.

The monitoring portal saves all the results. The user can log on to the portal to both review and forward the results. The portal also allows the user to set up text message reminders as well as to select an option for an alert to be sent immediately if there is a negative reading or if the software cannot confirm the identity of the user.

SOBERLINK offers two types of devices. SL2 uses a built in cellular module to send breath tests directly from the device, whereas the SLBlue uses bluetooth to send the breath test results through an iPhone or iPad.

  1. Recovery Healthcare

In Texas, SCRAM and SOBERLINK are available through Recovery Healthcare. Recovery Healthcare has locations all across Texas, including Dallas, Houston, San Antonio, Austin, Fort Worth, Waco, and El Paso. For a complete list of locations, visit:

https://www.getemsober.com/index/about/locations/.

  1. Admissibility of SCRAM & SOBERLINK Results There is not one case designated for reporting which addresses the admissibility of SCRAM results, and only one reported Texas case discussing the admissibility of SOBERLINK results. The one reported case is a criminal case, Cox v. State, 446 S.W. 3d, 605 (Tex. App. – Texarkana 2014). In Cox, the appellate court held the trial judge improperly admitted the SOBERLINK results into evidence where the State presented no evidence as to how the SOBERLINK machine operated, how it measured breath-alcohol content, how it generated or recorded the test results, nor how the reliability of these test results could be measured. Id. The appellate court further explained that it found nothing to

establish that the science behind the SOBERLINK method of acquiring data “has been widely accepted in a sufficient number of trial courts through adversarial gatekeeping hearings.” Id.

More specifically the Cox Court stated as follows:

“The threshold determination in an inquiry into the admissibility of scientific evidence is whether the evidence is helpful to the trier of fact, and for such evidence to be helpful, it must be reliable. A trial court must act as a gatekeeper to ensure that unreliable evidence does not reach the trier of fact. Somers v. State, 368 S.W.3d 528, 535–36 (Tex.Crim.App.2012) (citations omitted); see Tex.R. Evid. 702. For scientific testing results to be considered reliable, three criteria must be satisfied: (a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question.” Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992). Suggested factors in the trial court’s determination of reliability include:

(1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained;

  • (2) the qualifications of the experts testifying;
  • (3) the existence of literature supporting or rejecting the underlying scientific theory and technique;
  • (4) the potential rate of error of the technique;
  • (5) the availability of other experts to test and evaluate the technique;
  • (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and
  • (7) the experience and skill of the person(s) who applied the technique on the occasion in question.” Cox v. State, 446

 

S.W. 3d, 605 (Tex. App. – Texarkana 2014).

It is important to reiterate that Cox v. State is a criminal case; as such, it is more likely to have precedential value in a termination case as opposed to a non-termination SAPCR case.

  1. CONCLUSION

Random testing may be used to deter alcohol use and illegal drug use and should be used to determine if a parent is not staying sober. Random drug testing should be by urinalysis on multiple occasions per month. If random testing is employed in a case, it is good practice to follow up with a hair test once every 90 days or a nail test every six months after random testing begins. Unless the parent is tested consistently, it is possible that random testing may miss substance use at some point.

If there is an alcohol abuse problem, the alcohol EtG test can be used to deter alcohol usage while the parent is with the child or indicate when a party is violating an injunction prohibiting the consumption of alcoholic beverages. If a test is required of a party every Monday after a weekend period of possession, the entire period of possession will be covered by the alcohol EtG test. Another option available to the court to better evaluate the existence of any alcohol abuse problem is to order the use of either the SCRAM ankle bracelet or Soberlink alcohol monitoring device before allowing any period of unsupervised possession.

If you intend to ask the court to order any type of drug or alcohol testing or monitoring, be certain to do your research in advance of the hearing so that you are able to tell the court where the testing or monitoring is available and the associated cost. It is also prudent to ask the court to order the party to be tested to sign an authorization for the test results to be released to you so that you can monitor the party’s compliance with the court’s order.

PARENT DRUG METABOLIZES TO
Amphetamine Amphetamine
Methamphetamine Amphetamine
Cocaine Benzoylecgonine, Norcocaine
Marijuana Carboxy -THC
Hydrocodone Hydromorphone
Oxycodone Oxymorphone
Heroin 6-acetylmorphine, morphine
Morphine Morphine, morphine-3-glucuronide
Codeine Codeine, morphine

 

URINE DRUG DETECTION/CLEARANCE TIMES
Target Drug Minimum Maximum
Alcohol (not EtG test) 1 hour/drink Less than or equal to 6-12 hours
EtG Alcohol Depends on volume consumed Up to 3 days, possibly 5 days
Amphetamines 2-7 hours 2-4 days
Anabolic Steroids 4-6 hours Oral: 2-3 weeksInjected1-3 months (Naldrolene 8 months+)
Barbiturates 2-4 hours Short acting type (Alphenal, Amobarbital, Allobarbital, Butethal, Secobarbital) 1-4 days. Long acting type (Phenobarbital, Barbital) 2-3 weeks or longer.
Benzodiazepines 2-7 hours Infrequent user: 3 days Chronic user: 4-6 weeks
Cannabinoids (THC-Marijuana) 6-18 hours Infrequent user: up to 10 days Chronic user: 30 days or longer
Cocaine Metabolite 1-4 hours 2-4 days
LSD 2 hours A few hours
Mescaline 1-2 hours 2-4 days
Methadone 2 hours 2-6 days

 

Methamphetamines 1-3 hours 2-4 days
Methaqualone 3-8 hours Up to 10 days
MDMA (Ecstasy) 1 hour 2-3 days
Opiates (Heroin, Morphine, Codeine) 2 hours 2-3 days
Oxycodone 1 hour 1-2 days
Phencyclidine (PCP) 5-7 hours Infrequent user: 6-8 days Chronic user: 21-28 days+
Propoxyphene 4-6 hours 1-2 days
Psilocybin (Mushrooms) 2 hours 1-3 days
Rohypnol 1 hour Less than or equal to 8 hours
GHB 1 hour Less than or equal to 8 hours
Tricyclic Antidepressants (TCA) 8-12 hours 2-7 days

 

Approximate Usage Rate In Hair (source Omega Labs)

Drug Confirm cut off Low use (Recreational) Medium use (weekends/daily) High Use (constant or daily)
Amphetamines 500 pg/mg hair 500 – 2500 pg/mg hair 2500-7500pg 7500+pg
Cocaine 500 pg/mg hair 500 -2000 pg/mg hair 2000 – 10000 pg 1 0000+pg
Opiates 500 pg/mg hair 500 -1000 pg/mg hair 2000-8000pg 9000+pg
Phencyclidine PCP 300 pg/mg hair 300 – 500 pg/mg hair 500-1000pg 2000+pg
Marijuana 1 pg/mg hair 0.3 pg/mg hair Qualitative – amount does not correlate to usage

 

APPENDIX D
Newell v. Newell, 349 S.W. 3d 717 (Tex. App.—Fort Worth 2011, no pet.) –This is an appeal from a divorce decree that ordered the father to submit to random drug and alcohol testing in order to be entitled to unrestricted access to his child. The father did not challenge the court ordered drug tests. The father complained on appeal that the court abused its discretion by ordering him to pass random alcohol tests for an extended period of time. The Court of Appeals determined that the trial court abused its discretion in ordering alcohol testing, but affirmed the trial court ruling for the random drug testing. The best interest of the child is always the primary consideration of a court regarding issues of conservatorship and possession and access to a child. There is a rebuttable presumption that the standard possession order provides reasonable minimum possession for a parent named as a joint managing conservator and is in the best interest of the child.

In re A.L.E., 279 S.W.3d 424 (Tex. App.—Houston [14th Dist.] 2009, no pet.) –This is an appeal from a suit to modify conservatorship. The trial court found it was in the child’s best interest that the mother submit to alcohol and drug testing for a period of three years. The court informed the mother that her visits would be supervised should she test positive for drugs or alcohol. The mother contends on appeal that the trial court abused its discretion because there was no change in circumstance to support the trial court’s findings. The mother argued that she was using drugs and alcohol when the initial order was entered. The Court of Appeals affirmed the trial court ruling stating the trial court did not abuse its discretion by entering a specific, enforceable possession order that placed conditions on the mother’s unsupervised possession of her daughter.

Hopkins v. Hopkins, 853 S.W.2d 134 (Tex. App.—Corpus Christi 1993, no writ) –This is an appeal from a divorce decree in which mother was appointed managing conservator. The trial court refused to appoint father as possessory conservator and refused to allow him to have possession of the children. The court allowed father supervised access to the children. The father contends on appeal that the trial court abused its discretion by failing to appoint him possessory conservatorship and imposing greater restrictions and limitations on his possession and access to the children than was necessary to protect the children’s best interest. The Court of Appeals ruled the trial court did abuse its discretion in failing to appoint the father possessory conservator. The appellate court affirmed the limitations on the possession.

In re L.M.M. and S.D.M., 2005 WL 2094758 (Tex. App.—Austin 2005, no pet.) –This is an appeal of the trial court’s order denying the mother’s motion to modify managing conservatorship of the two children. The trial court determined that a joint managing conservatorship was in the best interests of the children. Father had the right to establish the children’s primary residence. The court placed restrictions on mother’s possession of and access to the children. Mother was ordered to conduct a course of treatment with a therapist. Mother sought to modify the trial court’s order. The mother contends on appeal that the trial court abused its discretion by denying her motion. The Court of Appeals determined that the trial court did not abuse its discretion by restricting her possession of and access to the children in relation to the therapy treatment requirement.

Ohendalski v. Ohendalski, 203 S.W.3d 910 (Tex. App.—Beaumont 2006, no writ) –This is an appeal of the terms of visitation set out in the divorce decree. The trial court found it to be in the children’s best interest that the father’s visitation limits vary from the standard possession order. The father contends on appeal that the evidence was insufficient to support the trial court’s findings. The trial court’s order prohibited father from driving a motor vehicle with his children as passengers. The court referenced that there is rebuttable presumption in favor of the terms contained in the standard possession order. The court of appeals outlined the evidence that supported the trial court’s order. Father had a history of chronic alcohol abuse. Father also operated his motor vehicle under the influence of alcohol with the children in the car. The Court of Appeals ruled that the trial court did not abuse its discretion in deviating from the standard possession order.

Johnson v. Johnson, 804 S.W.2d 296 (Tex. App.—Houston [1st Dist.] 1991, no writ) –This is an appeal from a divorce decree in which the mother was appointed sole managing conservator of the two children. The trial court found it was in the best interest of the children to deviate from the standard possession order and grant the father only supervised visitation. The trial court made this ruling based on previous alcohol abuse and father having various firearms around the children because he was a firearms dealer. The father contends on appeal that the trial court abused its discretion because there was no evidence or insufficient evidence to support the trial court ruling. The father also contends on appeal that the court of appeals ruled that the trial court did not abuse its discretion deviating from the standard possession order granting the father supervised visitation.

In re Walters, 39 S.W.3d 280 (Tex. App.—Texarkana 2001, no pet.) –This is an appeal from a divorce. The trial court found it was in the best interest of the child to appoint the father sole managing conservator and the mother possessory conservator of their five year old son. The mother contends on appeal that the trial court abused its discretion because the order effectively denies her possession or access without good cause, it fails to specify times and conditions for possession or access without showing good cause and it deviates from the standard possession order without a sufficient showing that deviation was in the best interest of the child. The court of appeals reversed and remanded the trial court ruling with regard to the possession and access of the child. The order was not sufficiently specific as to the times and conditions.

In re C.B.M, 14 S.W.3d 855 (Tex. App.—Beaumont 2000, no pet.) –This is an appeal from a voluntary paternity suit. The trial court found that Morgan was father of the child. The trial court also found that it would be in the child’s best interest for the mother to be the sole managing conservator and appointed the father as possessory conservator. The trial court deviated from the standard possession order. As such, the court was to be guided by the age, developmental status, circumstances, needs, and best interest of the child. The court also had to consider the circumstances of the parent named possessory conservator. Father was never consistently employed. He had used drugs and had been arrested for public intoxication. He claimed he worked from 5:30 am to 7:30 pm, but could not detail how he would care for the child during the week. The father contends that the trial court abused its discretion in seven points of error on appeal. The court of appeals found that the trial court did not abuse its discretion. in the seven points of error on the appeal.

Awards & Recognition

Super Lawyers is a Thomson Reuters business. Christina Molitor was selected to Super Lawyers 2010-2016