In re K.H.

867 S.E.2d 757

In the MATTER OF: K.H.

No. COA21-379

Court of Appeals of North Carolina.

Filed January 4, 2022

Susan Curtis Campbell, for Petitioner-Appellee Surry County Department of Social Services.

James N. Freeman, Jr., Elkin, for Appellee Guardian ad Litem.

Stam Law Firm, PLLC, by R. Daniel Gibson, for Respondent-Appellant Mother.

Anné C. Wright, Boone, for Respondent-Appellant Father.

COLLINS, Judge.

¶ 1 Respondent-Father and Respondent-Mother appeal from orders adjudicating their son, Ken, a neglected juvenile and maintaining his custody with the department of social services.¹ Because the trial court's findings of fact support its conclusion that Ken was a neglected juvenile and the trial court did not abuse its discretion with respect to disposition, we affirm.

I. Background

¶ 2 On 15 September 2020, Petitioner Surry County Department of Social Services ("SCDSS") received a report "alleging substance use by the Respondents which was impacting their care of" Ken, as well as "an injurious environment impacting [Ken's] safety." On 24 September 2020, SCDSS filed a juvenile petition alleging that Ken was neglected. The trial court held adjudication and disposition hearings on 25 and 26 March 2021.

¶ 3 At the adjudication hearing, Petitioner presented testimony from Audrey Huston, a SCDSS social worker; Jonathan Young, a paramedic with Surry County Emergency Services; officer Jody Beketov of the Mount Airy Police Department; and Michael Barnes, president and owner of Unique Background Solutions ("UBS"). Beketov testified that when she first came to Respondents’ residence on 26 February 2020 to investigate possible stolen property, she observed Mother taking Ken to a neighbor's house. Beketov searched the Respondents’ residence with Mother's consent and found "a burnt spoon and a used syringe" in the bathroom trash can and "a clear plastic baggy that had a crystal-like substance inside" under the toilet seat. Over objection, Beketov testified that she identified pills in the plastic bag as alprazolam based on visual inspection and identified other substances in the bag as methamphetamine and fentanyl based on field tests. Beketov also found "several paraphernalia items located throughout the residence," but could not specifically recall what they were. Beketov twice went to Respondents’ residence when Ken's paternal grandmother overdosed and required EMS attention on 30 July and 16 September 2020.

¶ 4 Barnes testified that UBS was the collection agency contracted with SCDSS to provide drug screens. Barnes had "[j]ust over 15 years" of experience with UBS collecting both hair and urine specimens, was a "qualified train the trainer under Department of Transportation qualifications"; received training from Omega Laboratories, the lab where UBS submitted its hair follicle specimens; and was "DOT qualified" for 12 years.

¶ 5 Barnes explained UBS’ process for collecting, securing, and submitting hair and urine specimens for drug testing as follows: The individual undergoing testing gives a specimen at a UBS facility. For urine specimens, UBS conducts an instant test. If the instant test gives a non-negative result, UBS sends the specimen to a laboratory for confirmatory testing. For hair specimens, Omega Laboratories measures the specimen, "run[s] it through a wash ... to remove any environmental contaminants," performs an immunoassay screening, and "if there are non-negatives presented in the screen, it is then passed onto the confirmation" with gas chromatography mass spectrometry. Once the tests are complete, a laboratory report is generated and passed onto "a medical review officer who is separate from the lab." The medical review officer's responsibility is to communicate with the specimen donor and determine whether any valid prescriptions explain a positive test result.

¶ 6 According to Barnes, a specimen of Ken's hair was collected at a UBS facility on 16 September 2020 and sent for analysis at Omega Laboratories. Counsel for each Respondent objected to the admission of the results of Ken's tests. Following argument, the trial court concluded that Barnes "qualifies as an expert at least in the area of understanding how tests are performed, not actually doing the performing of them and examining, but certainly analyzing. He's able in his capacity to analyze the data he receives from a lab[.]"

¶ 7 The trial court admitted the reports containing the results of Mother, Father, and Kens’ drug screens. The trial court permitted Barnes to testify that Ken's test was positive for marijuana, methamphetamines, 6-AM heroin, and morphine. The trial court likewise permitted Barnes to testify, again over objection, that a urine sample from Mother was positive for fentanyl, norfentanyl, morphine, and tramadol ; and a urine sample from Father was positive for marijuana, fentanyl, norfentanyl, morphine, and tramadol.

¶ 8 On 26 April 2021, the trial court entered an order adjudicating Ken a neglected juvenile ("Adjudication Order"). The Adjudication Order included the following pertinent findings of fact:

7. During [SCDSS's] assessment of the report, the Department found the juvenile to be 10 months of age, crawling, and pulling up.

8. The Respondents admitted to previous substance use, including intravenous heroin use, but claimed they had been clean for several weeks. The Respondents admitted that they were both getting subutex or suboxone off the streets.

9. The Respondents entered into a Safety Plan with the Department that the child would have a safe, sober caretaker at all times, and the child would have no access to drug paraphernalia.

10. During the ensuing investigation of the report, the Social Worker learned that the Respondent Mother had been found in possession of Schedule I, II, and IV controlled substances, drug paraphernalia, including a burnt spoon and used needle, and stolen property, on or about February 26, 2020, after a search of the home was conducted.

11. Additionally, it was determined by the Department that an overdose had occurred in the home during July 2020.

13. [sic] On 9/16/2020, the Respondent Parents submitted to urine drug screens and the instant test results showed the father positive for marijuana, tramadol, benzodiazepine, and fentanyl ; the mother's instant screen was positive for fentanyl and tramadol.

14. On 9/16/2020, a hair drug screen was completed on the juvenile, and on 9/24/2020, the test results indicated the child was positive for marijuana, methamphetamine, opiates, morphine, and 6-am (heroin).

15. On 9/24/2020, the Respondent Parents’ confirmed drug screen results indicated that the father was positive for tramadol, opiates, morphine, marijuana, fentanyl, and norfentanyl, and the mother was positive for fentanyl, norfentanyl, opiates, morphine, and tramadol ; additionally, on 9/16/2020, the Social Worker located a used needle in the front yard, close to the front door of the home.

16. Officer Beketov with the Mount Airy Police Department conducted the search of the home on or about 2/26/2020, and did find and confiscate controlled substances, paraphernalia, and stolen property in the home for which Juvenile Petitions were filed against the Respondent Mother in Juvenile Court due to the mother's minority at the time.

17. Officer Beketov also testified that just prior to her search of the home, the officer observed the Respondent Mother taking the juvenile to the next-door neighbor's home, and as Officer Beketov was leaving the residence, following the search and confiscation of the substances, paraphernalia, and stolen property, the mother retrieved the child from the neighbor.

18. Jonathan Young, Surry County EMS Paramedic, testified that he was dispatched to the home of the Respondent Parents and juvenile on July 30, 2020, due to an unconscious female in the home, and when he arrived, two individuals were performing CPR on the woman.

19. Mr. Young testified that four cans of Narcan were used to revive the unconscious and unresponsive woman, and after she became conscious, the woman identified herself as Jana Torres and she admitted to taking heroin.

20. During her testimony, Officer Beketov corroborated the testimony of Jon[a]than Young as she had also responded to the home ... on July 30, 2020 and had observed the events there as well.

21. Officer Beketov spoke with the Respondent Father about what had occurred in the home on 7/30/2020, and both he and the paternal uncle, Bryson, provided information to police and EMS, indicating that the woman that was receiving emergency services was their mother, Jana Torres, and that their mother uses methamphetamine and heroin, but neither knew what substance she had consumed that day.

22. Officer Beketov also testified that Jana Torres overdosed, again, in the home of the Respondents and juvenile, on 9/16/2020, and that Ms. Torres again admitted overdosing on heroin.

23. The Respondent Parents, when asked by the Department about any persons providing care for the juvenile other than themselves, did not provide any information about the child being out of the parents’ care for any length of time.

24. On 9/30/2020, the Respondent Mother admitted to the Department that both she and the Respondent Father needed to go to the Crisis Recovery Center in Statesville, for detox treatment.

25. Michael Barnes testified regarding the process and procedures used for collecting and testing specimens for urine and hair drug screens.

26. Mr. Barnes provided a detailed description of the care and safeguards used in collecting drug screen specimens, and the steps employed each time a specimen is provided to avoid contamination, misidentification, and to protect the chain of custody of the specimen to the outside laboratory.

27. Mr. Barnes has been in the field of drug testing for more than 15 years, and through experience and continuing training and education, has become a trainer in the field.

28. While Mr. Barnes was unable to provide an exact description of the science of the

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