Opinion
D072353
03-23-2018
In re J.M. et al., Persons Coming Under the Juvenile Court Law. IMPERIAL COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. J.M. et al., Defendants and Appellants.
Terence M. Chucas, under appointment by the Court of Appeal, for Defendants and Appellants J.M. and N.M. (Minors). Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant E.M. (Father). Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant S.S. (Mother). Henderson and Ranasinghe and Kelly Ranasinghe for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Imperial County Nos. JJP03369 and JJP03534) APPEALS from an order of the Superior Court of Imperial County, William D. Quan, Judge. Affirmed. Terence M. Chucas, under appointment by the Court of Appeal, for Defendants and Appellants J.M. and N.M. (Minors). Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant E.M. (Father). Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant S.S. (Mother). Henderson and Ranasinghe and Kelly Ranasinghe for Plaintiff and Respondent.
In this case of apparent first impression in California, we hold that the Imperial County Department of Social Services (Department) failed to meet its burden under People v. Kelly (1976) 17 Cal.3d 24 (Kelly) of showing that testing hair for marijuana and methamphetamine has gained general acceptance in the scientific community. We affirm, however, because on this record—which also contains unchallenged urine drug tests—the error was harmless.
Nothing in this opinion forecloses the possibility that in other proceedings it may be demonstrated that hair testing satisfies the Kelly standard. We hold only that the record supporting such a conclusion here—almost entirely testimony by a vice president and shareholder in the hair testing company, Psychemedics Corporation (Psychemedics), which derives more than 98 percent of its income from testing hair for drugs—fails the requisite standard that such a witness be disinterested and impartial. (Kelly, supra, 17 Cal.3d at p. 38; People v. Brown (1985) 40 Cal.3d 512, 530 (Brown), reversed on unrelated grounds in California v. Brown (1987) 479 U.S. 538.)
FACTUAL AND PROCEDURAL BACKGROUND
A. J.M.'s Dependency
J.M. tested positive for marijuana upon his birth. Stacy S. (Mother) and Emilio M. (Father, together parents) admitted smoking marijuana shortly before he was born. They agreed to submit to drug tests and to stop exposing J.M. to illicit drugs.
Parents tested positive for marijuana by both urinalysis and hair test. J.M., then 11 days old, tested positive for marijuana, methamphetamine, and amphetamine by hair test.
In March 2014 the family moved to Arizona. Upon their return to California in July 2015, police arrested parents on outstanding warrants and took J.M., then 17 months old, into protective custody.
In early August 2015 Mother (now pregnant) tested positive for marijuana by both urine and hair tests. In late July 2015 Father tested positive for marijuana by urine test and for marijuana, amphetamine, and methamphetamine by hair test. J.M. tested positive for marijuana, methamphetamine and amphetamine by hair test. Parents admitted regularly using marijuana.
In late July 2015 the Department filed a Welfare and Institutions Code section 300 petition, alleging parents were unable to care for J.M. because they regularly used marijuana, Mother admitted exposing J.M. to illicit drugs, and Father had an extensive drug history and needed mental health treatment.
Undesignated statutory references are to the Welfare and Institutions Code.
The juvenile court ordered parents to randomly drug test and granted them supervised visitation. Subsequently, the juvenile court declared J.M. a dependent, placed him in parents' custody, and ordered parents to participate in family maintenance services.
B. Positive Drug Tests
From October 2015 to April 2016 parents and J.M. had positive drug tests as follows:
| Date | Mother | Father | J.M. |
|---|---|---|---|
| October2015 | Urine: MarijuanaHair: Marijuana | Urine: MarijuanaHair: Marijuana | Hair: Marijuana |
| November2015 | Urine: Refused TestHair: Marijuana | Urine: MarijuanaHair: Marijuana | Hair: Marijuana;methamphetamine |
| February2016 | Urine: MarijuanaHair: Marijuana | Urine: MarijuanaHair: Marijuana | Hair: Marijuana |
| April 4,2016 | Urine: MarijuanaHair: Marijuana | Urine: MarijuanaHair: Marijuana | Hair: Amphetamine,marijuana;methamphetamine |
Parents stated J.M. was exposed to methamphetamine by a neighbor's drug use. They attributed his positive test for amphetamine and methamphetamine in April 2016 to a visit by his grandmother, who uses methamphetamine.
C. N.M. is Born, Tests Positive for Marijuana
The parents' second child, N.M., who was born in April 2016, tested positive for marijuana upon birth. Later that month, Mother's urine and hair tests were positive for marijuana. Father's urine test was positive for marijuana, and his hair test was positive for marijuana and methamphetamine. The methamphetamine, he explained, was by exposure to his mother-in-law's methamphetamine. Mother admitted she and Father were marijuana "addicts."
D. Section 300 Petition for N.M. and Section 387 Petition for J.M.
The Department filed a section 300 petition on behalf of N.M. and a section 387 petition on behalf of J.M. The section 300 petition focused on parents' drug use, N.M.'s positive marijuana test upon birth, parents' failure to comply with their family maintenance plan, and Father's inability to care for N.M. because of Father's mental illness, developmental disability, and substance abuse. The juvenile court ordered parents to randomly drug test, removed N.M. from their custody, and ordered supervised visits. The section 387 petition alleged continued placement of J.M. with parents was no longer effective because of parents' continued drug use and failure to provide a safe home. The court ordered J.M. removed from their custody.
Section 387 generally provides for modifying existing orders entered in section 300 proceedings.
E. Custody Returned to Parents
In June 2016 the juvenile court conducted contested hearings on the petitions. Believing parents had now responded to a "wake up call" when the children were removed, the court ordered J.M. returned to parents' custody because their drug tests showed a significant reduction in their marijuana ingestion and they promised to be sober.
Parents had positive urine tests for marijuana on June 7, 2016. Nevertheless, Mother was remorseful and promised to "change and remain sober." Following the Department's recommendation, the juvenile court placed N.M. with parents.
F. Positive Drug Tests
In late July 2016 parents had positive urine and hair tests for marijuana. J.M. and N.M. (collectively, children) had positive hair tests for marijuana and methamphetamine.
G. Section 387 Petition
On August 8, 2016, the Department filed a section 387 petition on behalf of the children, alleging that placing them with parents had not been effective because: (1) parents continued using marijuana, (2) children continued to have positive tests for marijuana and methamphetamine, and (3) parents had not complied with court-ordered family maintenance services. The Department recommended the court remove the children from parental care.
The juvenile court found continued placement in parents' home was contrary to the children's welfare and ordered them removed from parents' custody.
In a report prepared for the subsequent August 29, 2016 hearing, the social worker stated that Mother admitted consuming marijuana "approximately once a week." The Department also summarized the drug test results from inception of the case to date, as follows:
Mother's 20 drug tests covered the period from March 14, 2014 to July 26, 2014. Nine of her tests were of hair and 11 were of urine. All were positive for marijuana.
Father's 21 drug tests covered the period from February 25, 2014 to July 26, 2016. Ten of his tests were of hair and 11 were urine. All of his urine and hair tests were positive for marijuana. Three of his hair tests were also positive for methamphetamine, and one for amphetamine.
J.M.'s nine hair tests covered the period February 25, 2014 to July 26, 2016. All were positive for marijuana, six were also positive for methamphetamine, and three also for amphetamine.
N.M.'s three hair tests covered the period April 22, 2016 to July 26, 2016. All were positive for marijuana.
Mother admitted that Father was "addicted to marijuana and the first thing he did each day was use marijuana as he could not function without it." The social worker noted that parents "have demonstrated a pattern of ceasing attendance of services and increasing their frequency of substance abuse when the children are returned to their care."
At the August 29 hearing, the court provisionally received the hair test results in evidence, subject to a later hearing on "the underlying scientific reliability of the tests . . . ." The court found the allegations in the section 387 petition were true and its previous disposition orders had not been effective in protecting the children. It ordered the children to remain in foster care.
H. Drug Tests During the Kelly Hearings
In September 2016 the court conducted the first of what would be seven separate days of hearings (ending March 2017) on whether the hair tests were admissible under Kelly, supra, 17 Cal.3d 24. As that issue was litigated over nine months, the Department continued to drug test the family.
Parents' urine and hair tests taken on September 2, 2016, were positive for marijuana. Their urine tests of September 12, 2016 were also positive for marijuana. Despite these results, Father claimed he was "doing well with his sobriety" and had not used any marijuana since early August 2016. Mother, however, admitted she was still smoking marijuana.
Now in foster care, the children's October 2016 hair test was negative. Parents tested positive throughout November and December 2016, as summarized below:
| Test Date | Mother | Father |
|---|---|---|
| November 1, 2016 | Urine: MarijuanaHair: Codeine | Urine: Diluted SampleHair: Marijuana |
| November 7, 2016 | Urine: Marijuana | Urine: Marijuana |
| December 8, 2016 | Urine: MarijuanaHair: Marijuana; Codeine | Urine: MarijuanaHair: Marijuana; Codeine |
| December 27, 2016 | Urine: MarijuanaHair: Marijuana | Urine: MarijuanaHair: Marijuana, Codeine |
Confronted with these results, parents admitted continuing marijuana use. Mother explained she tested positive for codeine because she was taking a prescription cough medicine.
On February 2, 2017, parents had their first negative urine tests. Their urine tests on February 27, 2017, were also negative. However, hair tests for both dates were positive for marijuana. The March through May 2017 test results are as follows:
The negative urine and positive hair tests are not necessarily inconsistent. A hair test looks back over 90 days of drug use, whereas a urine test looks back only 48 to 72 hours.
| Test Date | Mother | Father | Children |
|---|---|---|---|
| March 20, 2017 | Urine: NegativeHair: Marijuana | Urine: NegativeHair: Marijuana | Not tested |
| April 3, 2017 | Urine: NegativeHair: Marijuana | Urine: NegativeHair: Marijuana | Not tested |
| April 21, 2017 | Urine: Negative | Urine: Negative | Hair: Negative |
| May 15, 2017 | Urine: NegativeHair: Negative | Urine: NegativeHair: Negative | Not tested |
I. Children Returned to Parents
In May 2017 the Department reported that parents "made substantial progress and have addressed the behaviors that led to the removal of their children." Parents were employed and were attending drug recovery support groups. On May 22, 2017, the Department placed the children back with parents.
In June 2017 the court determined the hair tests were admissible under Kelly, supra, 17 Cal.3d 24. At the subsequent contested disposition hearing the juvenile court determined, "The welfare and best interest of the children no longer requires that custody be taken from the parents" and ordered "[a]n immediate return to the home" as the permanent plan. The court ordered that the children were to remain dependents of the juvenile court for an additional six months or until further order of the court.
Parents and children (collectively Appellants) timely filed notices of appeal, focusing exclusively on the admissibility of the hair tests under Kelly, supra, 17 Cal.3d 24.
J. The Kelly Hearing
1. Michael Schaffer and Psychemedics
At the Kelly hearing, the Department offered the testimony of Michael Schaffer, Ph.D., in support of the admissibility of the hair test results. Schaffer holds bachelor of science degrees, a master of science degree in pharmacognosy (the study of natural products derived from plants), and a doctorate of philosophy in toxicology. Formerly, he was chief toxicologist for the Cook County medical examiner's office, and he also served as the director of laboratory operations at SmithKline laboratories, which performed urine tests for employment purposes under federal guidelines.
Schaffer is a member of many professional organizations, including the Society of Hair Testing. He is the recipient of numerous professional awards, and he lectures on hair testing. He is a licensed forensic toxicologist in Nevada, New York, and Florida. Schaffer was recently appointed to the Drug Testing Advisory Board, a group of scientists which advises the United States Department of Health and Human Services on the appropriateness of drug testing done in the federal workplace.
Schaffer has authored or co-authored over 100 scientific journal articles, many of them about testing hair for illicit drugs. He has also written chapters in books, including a chapter entitled, "Hair Analysis in Drugs-of-Abuse Testing."
Schaffer has qualified as an expert witness on hair testing in "[s]everal thousand" cases; however, this is the first time his testimony has been offered in a Kelly type of proceeding.
Psychemedics is one of only three laboratories in the United States certified by the Food and Drug Administration (FDA) to test hair for all five major drugs of abuse (cocaine, opiates, PCP, amphetamines, and marijuana). The FDA has given Psychemedics permission to use its hair testing procedures to test hair in the workplace. Psychemedics, a publicly traded corporation, is licensed to conduct hair testing in 48 states and performs "many thousands" of hair tests daily. More than 98 percent of its revenue is from testing hair.
For the past 18 years, Psychemedics has employed Schaffer as vice president for laboratory operations. He is also a Psychemedics shareholder and owns six patents related to hair testing.
2. Psychemedics's hair testing procedures
Schaffer testified that drugs ingested are absorbed in the blood, and "[e]verything that's in the blood gets taken up into the hair." He explained that hair tests have several advantages over urine tests. Because hair tests provide a "lookback window of 90 days," a hair test indicates long-term drug use over several months. In contrast, if there is a predetermined date for a urine test, a person can stop ingesting drugs for "a day or so" or "drink a lot of water" and "the test is negative." Disadvantages of testing hair include its higher cost and the inability to detect drug use from one to seven days prior to the test.
In some circumstances, a person can have a positive hair test by being exposed to a drug in the environment (e.g., second-hand smoke, touching something or someone with drug residue) rather than from ingesting it. To eliminate false-positive results from environmental exposure, Psychemedics subjects each hair sample to "an extensive wash criteria." Schaffer testified that after several hours of washing under the Psychemedics protocol, any drugs from environmental exposure are removed. He testified that "many different papers have demonstrated that this works" and that after the Psychemedics wash, "all of any compounds that are on the outside [of the hair], they're gone." In 2015 the FBI resumed hair testing after adopting Psychemedics's wash procedure.
After Psychemedics washes the hair sample, the hair is tested for drugs. Schaffer testified that before 2010, Psychemedics used radioimmunoassay (RIA) for this purpose. Thereafter, Psychemedics developed its own test—enzyme linked immunosorbent assay (ELISA)—which uses a nonradioactive isotope instead of the radioactive isotope used in RIA. Schaffer testified that ELISA technology has been used in other laboratory contexts since the 1970's and is used "everywhere, all [] over the world." If the ELISA test is positive, results are confirmed by tandem mass spectrometry. Schaffer testified this is standard practice in the industry. Schaffer also testified that Psychemedics has numerous quality controls, including testing "blind samples" daily.
Schaffer opined that the "relevant scientific community" for hair testing "includes the laboratories that are doing hair testing, and the individual scientists all over the world that do research and hair testing . . . ." As a forensic toxicologist, Schaffer testified he knows the "standards of practice" in the toxicological community. He testified that Psychemedics's hair testing procedures are generally accepted within the scientific community as being reliable including (1) the length of hair used, (2) the extensive wash procedure, and (4) tandem mass spectrometry.
Schaffer supported his opinions by referring to eight journal articles he authored or co-authored, as follows:
(a) "Identifying Methamphetamine Exposure in Children," which states hair analysis is the most reliable way of testing children for methamphetamine;
(b) "Carboxy-THC in Washed Hair: Still the Reliable Indicator of Marijuana Ingestion," which states with a proper wash to remove external contamination, hair testing reliably shows marijuana ingestion as distinguished from environmental exposure;
(c) "Analysis of Cocaine and Metabolites in Hair: Validation and Application of Measurement of Hydroxycocaine Metabolites as Evidence of Cocaine Ingestion," which established that Psychemedics' wash procedure can differentiate between ingestion and environmental contamination "and unequivocally state . . . that this person actually ingested the drug cocaine without a question";
(d) "An Evaluation of Two Wash Procedures for the Differentiation of External Contamination versus Ingestion in the Analysis of Human Hair Samples for Cocaine," which replied to an earlier report of false-positive results and concludes the hair wash used in that other study was flawed;
(e) "Removing and Identifying Drug Contamination in the Analysis of Human Hair," which states Psychemedics's wash procedure removes external contaminants;
(f) "Amphetamine in Washed Hair of Demonstrated Users and Workplace Subjects," which asserts the Psychemedics wash removed external contaminate in testing hair for methamphetamine;
(g) A letter to the editor of the Journal of Analytical Toxicology, which refuted a published article that stated hair was a "poor matrix" and urine tests were a "more sensitive indicator of changes in the pattern of drug use";
(h) "Hair Analysis for Cocaine: The Requirement for Effective Wash Procedures and Effects of Drug Concentration and Hair Porosity in Contamination and Decontamination," which asserts the Psychemedics wash effectively removed contaminates regardless of hair color or whether the hair is nonporous or highly porous.
3. Opposing expert
Okorie Okorocha is a forensic toxicologist in private practice who has no personal experience in hair testing. He testified that hair testing is not generally accepted in the scientific community and that most scientists with no financial interest in hair testing believe hair testing for illicit drugs is not reliable. Okorocha testified that scientific articles supporting hair testing are all written by Schaffer or other Psychemedics scientists.
In reaching his opinions, Okorocha relied upon several scientific journal articles, including:
(a) External Contamination of Hair by Cocaine;
(b) Finding Cannabinoids in Hair Does Not Prove Cannabis Consumption;
(c) Hair Analysis: A Worthless Tool for Therapeutic Compliance Monitoring;
(d) Hair Analysis for Forensic Applications: Is the Future Bright?;
(e) Proficiency Tests for Analysis of Hair for Drug Abuse Organized by the Society of Hair Testing;
(f) Testing Human Hair for Drugs of Abuse, Four Environmental Cocaine Contamination and Washing Effects;
(g) Trends in Drug Testing in Oral Fluid and Hair as Alternative Matrices;
(h) The Incorporation of Dyes Into Hair as a Model for Drug Binding.
Okorocha did not challenge ELISA and mass spectrometry. He conceded that Psychemedics uses "correct instruments" and "the testing is accurate." However, Okorocha testified there are many ways to get drugs on hair other than by ingestion, including sweat from someone touching hair, handling common items that may have drugs on them, and being exposed to second-hand smoke.
Okorocha challenged Psychemedics's hair washing procedure because, in his opinion, it cannot be determined if the hair test results were from external contamination or from ingestion. Okorocha opined "the science behind the washing" was "suspect." He testified there was no scientific consensus "on how many times you wash it, what you wash it with. And they've not established a way of getting all of the contaminants out of the hair." Okorocha testified that each of the three laboratories that tests hair has its own wash criteria, indicating a lack of consensus within the scientific community on how to reliably wash contaminates out of hair before testing. Okorocha stated, "[T]hat's the big problem. If everybody's doing a different procedure, different amount of washes, different solvents. There is no consensus on anything." He stated there was no way to determine what drug came from environmental contamination as distinguished from ingestion.
He opined, "There is no consensus, and there are a lot of entities, universities, that have studied this and found that [hair testing] . . . has serious accuracy problems because you don't know where the drug came from." He cited a journal article, stating that "despite many wash procedures found in literature including but not limited to methanol, acetone, water, dichloromethane, tween with water and formic acid, sodium dodecyl, sulfate, acetone, water, isopropanol, and phosphate buffer shampoo, 'a suitable procedure that is able to remove all the drug due to an external contamination has yet to be found.'"
Another journal article upon which Okorocha relied states there is "no way to remove all contamination" from the hair sample. Okorocha noted another study demonstrated that the metabolite of marijuana could be transferred by a person's hands, their sweat, or second-hand smoke. Based on this study, Okorocha concluded that in the case of a child, marijuana findings in hair could be caused by "close contact with cannabis consumers."
Asked whether the FBI's decision to test hair for cocaine demonstrates such tests are generally accepted as being reliable in the scientific community, Okorocha disagreed, stating the FBI uses other procedures, such as polygraph, which are not generally accepted as reliable.
4. The Kelly ruling
The juvenile court found the Psychemedics hair test results were admissible under Kelly, supra, 17 Cal.3d 24. In so holding, the court first determined that ELISA and mass spectrometry were generally accepted in the scientific community. The court cited 16 scientific journal articles to support that finding.
These 16 articles are not in the record. No witness testified about them. None of the parties asked the court to judicially notice them. The record is silent about how, where, or when the juvenile court found these articles. Appellants surmise the court conducted its own science research. The Department's brief offers no explanation.
Next, the court recognized Schaffer's "possible bias as he is the vice president of Psychemedics." Nevertheless, the court found Schaffer's testimony persuasive because his testimony was corroborated "by many scientific articles on the subject, as such lending credibility to his testimony."
Third, the court acknowledged that "criticism of hair drug testing was borne out in the testimony of Mr. Okorocha." However, the court noted that Okorocha's criticism centered on "external contaminants and the ability to remove all of such contaminants." The court concluded, "Whether or not a child in a dependency proceeding intentionally ingested an illicit substance or was environmentally exposed to an extent that a positive drug test was achieved, has the same result, the child was subjected to the negative effects of substance abuse." Thus, with respect to the children's hair tests results, even if the positive results were attributed to environmental exposure rather than ingestion, parents had exposed the children to marijuana and methamphetamine.
Last, the court noted, "No case specific challenges were made to the method of hair sampling or to the soundness or accuracy of the laboratory's work in the instant case." Accordingly, the court concluded the hair test results were admissible under Kelly, supra, 17 Cal.3d 24.
DISCUSSION
I. GENERAL KELLY PRINCIPLES AND THE STANDARD OF REVIEW
In Kelly, supra, 17 Cal.3d 24, the California Supreme Court affirmed California's adherence to the rule first announced in Frye v. United States (D.C. Cir. 1923) 293 F. 1013 (Frye) for the admissibility of a new scientific technique: "[T]he technique must be 'sufficiently established to have gained general acceptance in the particular field to which it belongs.'" (Brown, supra, 40 Cal.3d at p. 529, italics omitted.) Under Kelly, the proponent of such evidence must establish "(1) that the reliability of the scientific technique is generally accepted by recognized authorities in the scientific field(s) in which the technique belongs; (2) that the witnesses giving expert testimony on the acceptance in the relevant scientific communities are qualified experts on the subject; and (3) that correct scientific procedures were used in administrating the scientific technique." (In re Jordan R. (2012) 205 Cal.App.4th 111, 122 (Jordan R.).)
Although the Frye test was superseded by the adoption of the Federal Rules of Evidence, the Kelly standard continues to be the law in California. (People v. Leahy (1994) 8 Cal.4th 587, 604 (Leahy) [holding that Kelly applies in California despite the United States Supreme Court's rejection, in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, of a similar test in federal courts].) Though Kelly/Frye remains a popular designation for the doctrine, Kelly is more apt. (Jordan R., supra, 205 Cal.App.4th at p. 115, fn. 3.)
The Kelly requirement of "general acceptance" of a scientific technique means proof of scientific consensus drawn from a typical cross-section of the relevant, qualified scientific community. (Kelly, supra, 17 Cal.3d at p. 30.) "The test is met if use of the technique is supported by a clear majority of the members of the relevant scientific community." (Jordan R., supra, 205 Cal.App.4th at p. 122, italics omitted.)
Kelly was abrogated by statute on another point as explained in People v. Wilkinson (2004) 33 Cal.4th 821, 845-848.
Considerations of judicial economy make it impractical to require that the views of a cross-section of the relevant scientific community be presented personally by each scientist testifying in open court. Accordingly, an expert witness in a Kelly hearing may cite and rely upon written studies by scientists not actually before the court. (Brown, supra, 40 Cal.3d at p. 530.) Moreover, courts may look to like cases from other jurisdictions, and the scientific literature itself, to determine whether a particular technique is generally accepted. (Ibid.) "'[I]f a fair overview of the literature discloses that scientists significant either in number or expertise publicly oppose [the technique] as unreliable, the court may safely conclude there is no such consensus at the present time.'" (Leahy, supra, 8 Cal.4th at p. 611.)
The most current and relevant out-of-state case on Psychemedics's hair testing is Thompson v. Civil Service Commission (2016) 90 Mass.App.Ct. 462 . There, the court held Psychemedics's hair tests were not sufficiently reliable to be the sole basis for terminating a police officer because of the possibility of false-positive results caused by environmental exposure to illicit drugs. (Id. at p. 1190.)
A federal district court in New York, and state courts in Florida and Nevada have found hair tests using RIA were generally accepted as being reliable. (See United States v. Medina (E.D.N.Y. 1990) 749 F.Supp. 59 [applying Federal Rules of Evidence]; Bass v. Florida Dep't of Law Enforcement (Fla.App. 1993) 627 So.2d 1321-1322 (conc. opn. of Ferguson, J.) [RIA analysis to detect cocaine is generally accepted in the scientific community]; Nevada Empl. Sec. Dep't v. Holmes (1996) 112 Nev. 275, 282 [914 P.2d 611, 615] [RIA analysis of hair is generally accepted in the scientific community].)
In addition to considering published writings in scholarly treatises and journals, the court may receive the testimony of disinterested and qualified experts on the issue of the technique's general acceptance in the relevant scientific community. (Jordan R., supra, 205 Cal.App.4th at p. 123.) To qualify as an expert, the witness must have the academic and professional credentials that equip him or her to understand both the scientific principles involved and any differences of view on their reliability. (Kelly, supra, 17 Cal.3d at p. 39.)
Additionally, to provide expert testimony in a Kelly hearing, the qualified expert witness must also be "impartial" and "disinterested" (Brown, supra, 40 Cal.3d at. p. 531)—that is, "not so personally invested in establishing the technique's acceptance that he [or she] might not be objective about disagreements within the relevant scientific community." (Id. at p. 530; Jordan R., supra, 205 Cal.App.4th at p. 123.) The testifying expert cannot have a significant personal stake in the theory or be prone to institutional bias. (Kelly, supra, 17 Cal.3d at p. 38 ["'[before] a technique or process is generally accepted in the scientific community, self-serving opinions should not be received'"].) Independent and impartial proof of general scientific acceptability is what provides the necessary Kelly foundation. (People v. Reilly (1987) 196 Cal.App.3d 1127, 1139 (Reilly) [witness who "'built his career on the reliability of the technique'" could "not be expected to give a fair and impartial assessment"].)
In determining whether an expert is qualified, impartial, and disinterested, "[t]he trial court is given considerable latitude . . . and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is shown." (Kelly, supra, 17 Cal.3d at p. 39; People v. Ashmus (1991) 54 Cal.3d 932, 971, overruled on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117.) A court abuses its discretion when its decision rests on improper criteria or erroneous legal assumptions. (See In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497.)
II. THE DISINTERESTED WITNESS REQUIREMENT
By any reasonable standard, Schaffer is exceptionally well qualified to testify about hair testing. Appellants do not contend otherwise. However, in determining the admissibility of expert testimony under Kelly, qualifications are necessary, but not sufficient. In addition to being qualified, the expert must also be impartial and disinterested. (Brown, supra, 40 Cal.3d at pp. 530-531; Jordan R., supra, 205 Cal.App.4th at p. 123.)
Having spent a great deal of one's professional life developing, learning, teaching, and advocating for the scientific technique at issue, the expert may find it very difficult to simply concede that the technique has not gained general acceptance. Thus, in Jordan R., supra, 205 Cal.App.4th 111, we explained that "being a leading proponent of the scientific technique, having a long association with its development and/or promotion, or having a vested career interest in its acceptance in the scientific community . . . show a lack of impartiality by the expert." (Id. at p. 123.) Experts whose livelihood, reputation, or career has been built or revolves around the technique or method at issue are not disinterested or impartial. (See People v. Tobey (1977) 401 Mich. 141, 146 [257 N.W.2d 537, 539] [applying Frye, holding that experts "whose reputations and careers have been built" on the particular scientific technique at issue are not "impartial or disinterested"], superseded on other grounds as stated in People v. Williams (2009) 483 Mich. 226, 228 [769 N.W.2d 605, 607]; People v. Young (1986) 425 Mich. 470, 483 [391 N.W.2d 270, 276 [applying Frye, holding the standard for whether an expert is impartial and disinterested "is whether the expert's 'livelihood was not intimately connected with the new technique'"].)
There are at least two sound reasons for requiring impartial and disinterested experts in Kelly litigation. First, the stakes are extraordinarily high—not only for the parties, but uniquely in this litigation context for the court—because a published appellate opinion ends the need for case-by-case adjudication of the particular scientific issue. (Brown, supra, 40 Cal.3d at p. 530.) Precedent so established "may control subsequent trials, at least until new evidence is presented reflecting a change in the attitude of the scientific community." (Kelly, supra, 17 Cal.3d at p. 32.) In such complex scientific areas, where the litigation result has to be correct the first time, the quality of decision-making is necessarily enhanced by requiring the proponent's expert to not be partisan. (See id. at p. 38 [rejecting "self-serving" expert opinion because a court could consider it only "'on faith'"].)
Second, the very nature of the issue to be decided in a Kelly hearing requires a disinterested and impartial expert opinion. In this case, for example, the court's task was not to decide whether hair tests are reliable as a matter of scientific fact, but simply whether such tests are generally accepted as reliable by the relevant scientific community. (See People v. Shirley (1982) 31 Cal.3d 18, 55.) Thus, the expert's task under Kelly is to demonstrate general scientific acceptability. However, where someone who has developed, or whose professional reputation depends on the use of the new technique testifies about general acceptability, in effect he or she self-certifies reliability.
Here, Appellants contend Schaffer was not an impartial or disinterested expert. We agree. The undisputed evidence is that Schaffer is a leading proponent of the Psychemedics hair test procedure. He has been employed by Psychemedics for 18 years, is vice president of laboratory operations, and owns company stock. He also owns six patents relating to testing hair for drugs.
Schaffer has also lectured extensively on the reliability of hair testing, including talks for the American Academy of Forensic Sciences, the Society of Forensic Toxicologists, and the American Association of Medical Review Officers. These lectures include topics directly relevant to hair testing issues in this case: "Identifying and Resolving Environmental Contamination in Hair Testing," "Identifying and Resolving the Issues Related to the Testing of Hair Samples for Forensic Purposes," and "The Requirement for Effective Wash Procedures for Hair Testing."
In addition to being the author or co-author of several journal articles cited ante on the reliability of the Psychemedics hair test protocol, Schaffer has also authored articles on (1) morphine in hair of heroin users, (2) multiple aspects of hair analysis for opiates, and (3) absence of hair color effects in hair analysis results.
In Jordan R., supra, 205 Cal.App.4th 111, this court stated, "Factors such [as] being a leading proponent of the scientific technique, having a long association with its development and/or promotion, or having a vested career interest in its acceptance in the scientific community are among those that show a lack of impartiality by the expert." (Id. at p. 123.) Schaffer—a Psychemedics corporate officer, shareholder, lecturer, writer, and hair test patent holder—amply meets the Jordan R. criteria for lack of impartiality.
Three other cases also guide this analysis. In Kelly, supra, 17 Cal.3d 24, an expert with impressive personal experience in voiceprint analysis testified on the acceptance of voiceprint identification. (Id. at p. 36.) The court noted the expert was a leading proponent of voiceprint analysis, was the founder or member of organizations that promote the use of voiceprint analysis, and had "built his career on the reliability of the technique." (Id. at p. 38.) The California Supreme Court concluded the witness could not be expected to give a fair and impartial assessment. (Ibid.)
Similarly in Brown, supra, 40 Cal.3d 512, where the issue was the typing of semen stains by electrophoresis, the People offered only the testimony of persons who had a career interest in acceptance of the tests. (Id. at p. 533.) The Brown court held such experts could not state the view of the relevant community of impartial scientists. (Id. at p. 532.)
Likewise here, Schaffer's employment as vice president of Psychemedics laboratory operations, his membership in numerous professional organizations promoting hair testing, ownership of Psychemedics publicly traded stock, and patents relating to hair testing establish that although he may be extremely knowledgeable about hair testing and well qualified to offer such expert testimony in other litigation contexts, he is not the disinterested expert Kelly demands.
We acknowledge, as did the court in Reilly, supra, 196 Cal.App.3d 1127, that "'a certain degree of "interest" must be tolerated if scientists familiar with the theory and practice of a new technique are to testify at all.'" (Id. at p. 1140.) However, unlike the instant case, in Reilly the proponent of scientific evidence presented several witnesses—not only an expert working in a commercial laboratory, but also two disinterested experts, a college professor and a microbiology expert (id. at pp. 1144-1145) "who played no part in the analysis in this case." (Id. at p. 1145.) The Reilly court determined this "combined testimony" (id. at p. 1140, italics omitted) satisfied Kelly regardless of "any shortcomings" (ibid.) that any one of the witnesses would have suffered as the sole spokesperson for the general scientific community. (Ibid.) However, unlike Reilly, here Schaffer was the sole and crucial expert testifying that hair testing had gained acceptance in the scientific community.
Although the court received 11 specific journal articles into evidence, Schaffer authored or co-authored nine of them (and one other, by the FBI, acknowledged Shaffer and Psychemedics for "their assistance with this research"). Accordingly, the journal articles do not supply the requisite impartiality that Schaffer himself lacks.
The inescapable conclusion is that Schaffer has a significant personal stake in the Psychemedics hair testing procedure. His professional reputation and 18-year career with Psychemedics depend on its acceptance in the scientific community. Accordingly, the court erred in relying upon his testimony to establish the Kelly foundation in this case.
Disagreeing with this conclusion, the Department contends Jordan R., supra, 205 Cal.App.4th 111 is factually off-point and, therefore, inapplicable. We disagree. In Jordan R., which involved admissibility of polygraph evidence, two of the experts owned polygraph businesses and another was a polygraph examiner with 12 years of experience who taught polygraphy. The juvenile court determined these experts were not impartial and disinterested, but rather "had direct interests in the polygraph community" (id. at pp. 127, 126, fn. 15)—a ruling the appellant did not even challenge. (Id. at pp. 126, fn. 15.) Contrary to the Department's assertion, the facts here and in Jordan R. are close. Schaffer has at least 18 years' experience as Psychemedics vice president of laboratory operations. He has direct interests in the hair testing community where he is an author and lecturer promoting Psychemedics's hair testing protocol.
The Department additionally contends "there is absolutely no evidence that Dr. Schaffer's 'entire livelihood relied upon acceptance of hair testing.'" In a related argument, the Department asserts that although 98 percent of Psychemedics's revenue comes from hair testing, Schaffer testified he has no financial "connection" in the outcome of this Kelly hearing.
These arguments fail because they are premised on the wrong standard. The applicable standard under Jordan R., supra, 205 Cal.App.4th 111 is not whether Schaffer's "entire livelihood" relies on general scientific acceptance of the Psychemedics hair testing protocol. Nor is the test whether he has a financial stake in the outcome of this particular case. Rather, the standard is whether Schaffer is a "leading proponent of the scientific technique, having a long association with its development and/or promotion, or having a vested career interest in its acceptance." (Id. at p. 123, italics added.) The undisputed evidence is that Schaffer's principal occupation is performing or advancing Psychemedics hair testing.
The Department also asserts the juvenile court considered Schaffer's possible bias and reasonably concluded Schaffer was impartial and disinterested. In this argument, the Department cites a portion of the court's order, stating Schaffer's possible bias was refuted "by many scientific articles on the subject" corroborating his opinions. Invoking the deferential standard of review, the Department argues this court should defer to the juvenile court's credibility determination.
Before addressing this argument, we note the parties disagree about what "scientific articles" the court's order refers to here. Father contends the court was referring to the 16 articles on ELISA the court cited earlier in its order. In contrast, the Department contends the court was referring to the articles Schaffer cited in his testimony, which support his opinions and were received in evidence.
The court's order is ambiguous because it is unclear which "scientific articles on the subject" the court is referring to. The interpretation advanced by the Appellants is a reasonable one, but the Department's interpretation is sensible too. It is unnecessary to resolve this dispute because in either case, the court abused its discretion.
If Appellants are correct; i.e., that the juvenile court was referring to the 16 ELISA articles, the court abused its discretion by taking judicial notice of those articles without first complying with Evidence Code section 455. In a Kelly hearing, the court may take judicial notice of scientific journal articles, even those not presented by the parties. (Brown, supra, 40 Cal.3d at p. 530.) However, in so doing, the court must of course comply with rules of evidence, including Evidence Code section 455. Subdivision (b) of that statute provides that with respect to any matter for which judicial notice may be taken that is of substantial consequence to the determination of the action, "If the trial court resorts to any source of information not received in open court, . . . such information and its source shall be made part of the record in the action and the court shall afford each party reasonable opportunity to meet such information before judicial notice of the matter may be taken."
However, the Supreme Court has cautioned courts to be careful in taking such judicial notice because scientific subjects may be "too technical and the relevant literature too vast to be assimilated by lay judges lacking the assistance of qualified expert witnesses." (Brown, supra, 40 Cal.3d at p. 533.)
Thus, Evidence Code section 455, subdivision (b) mandates the parties be afforded a meaningful opportunity to be heard before the court takes judicial notice of evidence that results from its independent research. Here, the court failed to comply with this statute. Nothing in the record shows the court provided the parties notice or an opportunity to be heard before taking judicial notice of the 16 ELISA articles.
We reject the Department's assertion that Appellants "waived their right to contest improper judicial notice" by not objecting on this ground in the juvenile court. The juvenile court committed this error nearly three months after the last Kelly hearing. Appellants had no opportunity to invoke Evidence Code section 455 until after the juvenile court's ruling on the merits violated that statute.
Alternatively, if the Department is correct; i.e., the court was referring to Schaffer's own articles to corroborate his testimony, that would also be an abuse of discretion. Those articles cannot show Schaffer is impartial and disinterested because he either authored or co-authored nine out of 11 of them. Using a witness's own publications to bolster that witness's credibility may be the epitome of bootstrapping.
III. HARMLESS ERROR
Section 300.2 states in part, "The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child." "Thus, section 300, subdivision (b), creates juvenile court jurisdiction where it is shown that a 'child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child, or the willful or negligent failure of the child's parent . . . to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, . . . or by the inability of the parent . . . to provide regular care for the child due to the parent's . . . substance abuse.'" (In re Natalie A. (2015) 243 Cal.App.4th 178, 184.)
There is some confusion in the briefing regarding the applicable standard of prejudice. In their opening briefs, parents asserted the Chapman standard—harmless beyond a reasonable doubt—applies, and the children's brief was silent on the point. However, in supplemental letter briefs, parents and children assert that the Watson standard—whether it is reasonably probable the results would have been more favorable to the appealing party absent the error—applies. The Department's supplemental brief maintains Watson is the appropriate standard..
Chapman v. California (1967) 386 U.S. 18, 24.
People v. Watson (1956) 46 Cal.2d 818, 836.
We need not and do not resolve this issue because under any standard, the error was not prejudicial because Appellants do not challenge the admissibility of urine tests—and with insignificant exceptions, each of parents' positive hair tests for marijuana is corroborated by a positive urine test conducted the same day.
We requested and have reviewed the parties' supplemental briefs on this issue. To the extent the supplemental briefs exceed the scope of the issue we asked the parties to brief, we disregard those portions. (Cal. Rules of Court, rules 8.200(a)(4), 8.412(a)(1).)
Specifically, Mother's urine tested positive for marijuana on February 25, 2014, March 14, 2014, August 6, 2015, October 20, 2015, November 25, 2015,[] February 16, 2016, April 4, 2016, April 21, 2016, April 27, 2016, May 17, 2016,[] June 7, 2016,[] July 26, 2016, September 2, 2016, September 12, 2016,[] November 1, 2016, December 8, 2016, and December 27, 2016. Thus, even disregarding hair test results, the unchallenged evidence fully supports the court's determination that Mother was exposing the children to marijuana.
This was a refusal to test; mother refused to urinate.
There was no hair test this date, only urine.
There was no hair test this date, only urine. Mother provided insufficient quantity of hair.
There was no hair test this date, only urine.
Father's urine tested positive for marijuana on February 25, 2014, March 14, 2014, July 31, 2015, October 20, 2015, November 25, 2015, February 16, 2016, April 4, 2016, April 27, 2016, May 17, 2016, June 7, 2016, July 26, 2016, September 2, 2016, September 12, 2016,[] November 1, 2016,[] November 7, 2016,[] December 8, 2016, and December 27, 2016. Disregarding Father's hair test results, the unchallenged urine tests provide the same evidence.
There was no hair test this date, only urine.
Father's urine was too diluted to test; his hair test this date was positive for marijuana.
There was no hair test this date, only urine.
As these unchallenged urine tests well demonstrate, marijuana abuse was a constant part of these dependency proceedings. The social worker noted at the section 387 adjudication that marijuana is the parents' drug of choice and "it is evident substance abuse continues to impair their ability to protect the children . . . ." Mother admitted that Father was "addicted" to marijuana and could not function without it. There is ample evidence that parents' use of marijuana harmed children—when the children were in their care, parents increased their frequency of substance abuse and stopped attending family support services. "[E]ven legal use of marijuana can be abuse if it presents a risk of harm to minors." (In re Alexis E. (2009) 171 Cal.App.4th 438, 452 (Alexis E.).)
Contrary to Father's assertion, substance abuse within the meaning of section 300, subdivision (b) does not require a medical diagnosis. (In re Rebecca C. (2014) 228 Cal.App.4th 720, 726.)
Additionally, in the Kelly hearing, the children's attorney conceded he was only challenging the reliability of the Psychemedics wash to distinguish between drug ingestion and environmental exposure. Counsel had no quarrel with the positive hair test results themselves. He only questioned whether a positive result showed ingestion as opposed to environmental exposure, stating:
"What is not at issue is radioimmunoassay. That is . . . not disputed. . . . [¶] Gas chromatrograph[y]/mass spectrometer, they're not being disputed in this case. . . . That's not at issue. It's the wash procedure."
This concession was compelled by Okorocha's testimony that Psychemedics uses "correct instruments" and "the testing is accurate." Okorocha criticized Psychemedics's wash procedure because, in his opinion, it could not be determined if a positive result was caused by a person having ingested the drug or from external contamination or exposure.
A debate about whether a positive hair test is the result of ingestion or environmental exposure may be very important when testing an adult for drug use, such as in the employment context. However, within the context of child protection and a drug test on a child's hair, the distinction is not relevant because the child's welfare is called into question regardless of whether the child's hair tests positive because of ingestion or through exposure to drugs in the home or other areas under the parents control.
The point of testing hair is to protect children who are exposed to drugs, whether by internal ingestion or external exposure. Thus, we agree with the juvenile court's observation that whether a child in a dependency proceeding ingested an illicit substance or was environmentally exposed to it is irrelevant because in either case, "the child was subjected to the negative effects of substance abuse." "[U]se of marijuana near others can have a negative effect on them." (Alexis E., supra, 171 Cal.App.4th at p. 452.) The reasonable—if not inescapable—inference from the children's positive hair tests for marijuana is that parents were smoking marijuana in their presence. As such, the juvenile court could reasonably find that parents' use of marijuana constituted a risk of harm to the children because of their failure to protect them from marijuana smoke. "While it is true that the mere use of marijuana by a parent will not support a finding of risk to minors [citations], the risk to the [children] here is not speculative. There is a risk to the children of the negative effects of secondhand marijuana smoke." (Ibid.)
Moreover, the children's positive hair test for methamphetamine shows they were exposed to methamphetamine while placed with the parents.
Accordingly, given the unchallenged urine test results, as well as unchallenged aspects of the children's hair test results, there is undisputed evidence supporting the juvenile court's determination that parents continued drug use exposed the children to marijuana over a significant time period, supporting the exercise of jurisdiction under section 300, subdivision (b) and the court's order in the section 387 proceeding. Accordingly, the error in admitting the hair test results in this case is not prejudicial.
DISPOSITION
The order is affirmed.
NARES, Acting P. J. WE CONCUR: HALLER, J. DATO, J.