AMERICAN FORK – A Utah judge ruled that a certain type of drug test was "not sufficiently reliable" in a couple's legal effort to be reunified with their children, but Utah's child welfare agency isn't signaling any plans to stop using the tests it's relied on increasingly over the last two years.

Just before the start of the current school year, positive drug test results halted plans for Kalie Jones and Nick Hulse's children to return home from foster care.

But Jones, who during this time claims she has remained drug-free, noticed a pattern. It was her mouth swabs – or oral fluid tests – coming back positive for methamphetamine, while her urine tests were negative.

She took concerns to her caseworker, supervisors within Utah's Division of Child and Family Services, and the department's constituent services and started taking backup urine tests with another lab on the same days she was ordered to test with the state. Eventually, she called the KSL Investigators and took her fight to the courtroom to challenge the positive saliva test results.

"People permanently lost their children over these type of results," Jones told the KSL Investigators.

Fourth District Juvenile Judge Douglas Nielsen threw out the test results in question last month, after listening to hours of testimony from drug testing experts.

"The court has serious concerns about the reliability of oral fluid testing as it pertains to amphetamine, ecstasy, and methamphetamine testing," he said.

Nielsen's ruling referenced concerns about environmental contamination through the mouth and potential interactions with other medications Jones was taking – both possible reasons for the positive results that could not be ruled out.

In a written ruling released later, Nielsen wrote the results "are not sufficiently reliable in this particular instance."

Related:

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

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

DCFS indicated it has no plans to make any changes to its current drug testing process based on the judge's decision.

"The written order filed on September 21 represents the final decision from the court after it has considered all evidence, and is what governs any actions going forward," spokeswoman Sarah Welliver wrote in an emailed statement. "The court's written order was clear in it being specific to the facts of this case."

She listed several options families have to address concerns if they feel they've received inaccurate drug test results.

"Every case is unique, and DCFS encourages any parent involved in our services who has concerns about their case to lift those concerns to their caseworker, their Child and Family Team, their legal representative, DCFS regional office, DCFS constituent services, the courts, and/or the Office of Child Protection Ombudsman," Welliver wrote.

DCFS stressed that drug testing is just one tool used to make decisions about child custody for Utah families.

But Jones noted the drug test results had a significant impact on the progress of their case, and despite pleading with DCFS to listen to her, it took a judge's order to get the positive results dropped.

"We now have a judge saying that those mouth swabs are unreliable and that he's not going to consider them as positives," she said.

Since that decision, Jones said she and her husband are no longer testing with Averhealth. They're participating in a different drug testing program and now have their children home on a trial basis.

When announcing his decision last month, Judge Nielsen addressed another issue the KSL Investigators uncovered. Jones wasn't even supposed to be taking saliva tests, but she was forced to on days the collection site didn't have a female on staff to watch her provide a urine sample.

A copy of the state's contract with its drug testing provider, Averhealth, prohibits the use of oral fluid tests "as a substitute of a urinalysis when a same-sex collector is unavailable."

When asked if Averhealth will be allowed to continue violating its contract by conducting mouth swab tests due to staffing issues, Welliver wrote in an email, "Staffing levels by Averhealth and their third-party collection sites are experiencing the same challenges as health industries nationwide."

The judge said staffing is crucial.

"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 pursuit of the goal of reunification," Nielsen said.

Averhealth tests hundreds of Utahns every month through its contract with DCFS. Data provided to the KSL Investigators shows when Averhealth took over the contract two years ago, it provided 116 saliva tests in its first month, September 2020. During the month of August this year, that number grew to 459 saliva tests, marking a nearly 300% increase.

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