                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                Assigned On Briefs April 4, 2016

                                   IN RE: MASON E., ET AL.

                Direct Appeal from the Circuit Court for Sullivan County
                       No. C 15015(C)    E. G. Moody, Chancellor


                   No. E2015-01256-COA-R3-JV-FILED-MAY 16, 2016


The trial court found by clear and convincing evidence that Father had committed severe
child abuse by knowingly exposing his three minor children to methamphetamine. Father
appealed the trial court‟s decision to admit positive drug tests for the children into
evidence and the trial court‟s finding of severe child abuse. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
                                    Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.

Nicolas Allen Schaefer, Kingsport, Tennessee, for the appellant, Jody E.

Herbert H. Slatery III, Attorney General and Reporter, and Michael Cameron Himes,
Assistant Attorney General, for the appellee, Tennessee Department of Children‟s
Services.

Stephanie Epperson Stuart, Guardian ad Litem.

                                               OPINION

                                         Background & Procedure

       The State of Tennessee Department of Children‟s Services (“the Department”)
filed a petition for temporary legal custody of three minor children (“the children”)1 on
1
 In cases involving a minor child, it is this Court‟s policy to redact names in order to protect the child‟s
identity. In this case, in order to preserve both clarity and the anonymity of the child, we will redact the
names of individuals sharing the child‟s surname and will refer to those individuals by their given name
and the first letter of their surname.
October 21, 2014, alleging that the children were dependent and neglected within the
meaning of Tennessee Code Annotated section 37-1-102(b)(12). The facts underlying
the Department‟s petition stemmed from the October 17, 2014 arrest of the children‟s
parents, Jody E. (“Father”) and Misty E. (“Mother”), for various drug offenses, including
the promotion and initiation of methamphetamine (“meth”). Officers executing a search
warrant of the parents‟ home discovered five bags of an off white substance they believed
to contain meth and a multitude of items commonly used in the manufacture of meth.
Additionally, law enforcement discovered, in an “outbuilding” or a shed in the yard,
several more items commonly associated with the manufacture of meth, including digital
scales and a spoon with residue. Immediately following the execution of the search
warrant, the Department received a referral for drug exposed children and began its
investigation. The Department‟s petition alleged that “[t]he home was in deplorable
condition” and “infested with roaches and flies.” The petition also described other
unsanitary living conditions, such as piles of animal feces and soiled toilet paper having
been observed in the children‟s rooms. The juvenile court granted the Department‟s
petition on October 21, 2014, and after coming into the Department‟s custody and care,
the children were taken to submit hair follicle samples for drug testing on October 30,
2014.

        On November 6, 2014, the children were adjudicated dependent and neglected by
the juvenile court through the stipulation of the parents, and the Department passed
custody of the children to their maternal grandmother, who had filed an intervening
petition for custody. The next day, on November 7, the Department received the
children‟s drug screen results, which showed that two of the children tested positive for
meth and amphetamines. The Department then filed a motion for an emergency
restraining order, which the juvenile court granted, preventing the parents from having
visitation with the children and also filed a petition urging the court to find the children
severely abused pursuant to Tennessee Code Annotated section 37-1-102(21). On March
24, 2015, the juvenile court found that the children were victims of severe abuse “because
the parents knowingly exposed the children [to meth] and knowingly failed to protect the
children from abuse or neglect that is likely to cause serious bodily injury or death.”
Over the objection of Father‟s counsel, the court allowed into evidence the children‟s hair
follicle drug test results and a business records affidavit made by the laboratory
technician who performed the test. Father then appealed the juvenile court‟s ruling to the
circuit court.2

        The circuit court heard testimony and argument on June 2, 2015, and issued an
order on June 18, 2015, finding that the minor children were severely abused. The court
first heard testimony from Detective Ray Hayes, who executed the search warrant on the

2
    Mother did not appeal.
                                             2
parents‟ home. Detective Hayes testified to finding drug paraphernalia, pills, bags
containing a white substance, and pipe cutters within the home. Outside the home, near
an outbuilding, Detective Hayes found a “one pot, one cook bottle [and a] hose,” all items
used to manufacture meth. The outbuilding itself contained a hose, fuel, muriatic acid,
and a glass pipe, which Detective Hayes explained are also used to make meth. In
addition to the various items and tools used to manufacture the meth, Detective Hayes
observed children‟s toys, including “a little picnic table . . . like a little Fisher-Price or
something . . .” near the outbuilding. However, Detective Hayes admitted that because
the cook was not active at the time the search warrant was executed, he could not state
with certainty exactly where any meth was cooked on the property or whether the
children were present during a cook.

       The court next heard testimony from Jeff Street, whom the court accepted as an
expert in pharmacology and toxicology without objection. Mr. Street testified that he
collected hair samples from all three children on October 30, 2014, placed each of those
samples in a specimen container, and sent them to a lab in Illinois for testing. Mr. Street
admitted that he had not been to the lab in Illinois to observe the testing process but noted
that he followed the standard collection procedure used in every case and also received
the lab copy of the chain of custody for these samples, which is standard even in cases
where no court case is pending. Mr. Street received the results of the drug tests on
November 6, 2014, which showed that two of the children tested positive for meth.

         Father‟s counsel then objected to the Department‟s use of the children‟s drug test
results, arguing that the test results were unreliable hearsay prepared in anticipation of
litigation. Further, Father‟s counsel argued that the results themselves constituted expert
testimony and were subject to the requirements set forth for scientific expert testimony in
McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997). The circuit court
determined that the children‟s drug tests were prepared not only for litigation but to
ensure the children‟s medical well-being and found them to be reliable business records
properly authenticated by affidavit of the laboratory technician who performed the tests.
Having found Father‟s objection to the business records invalid, the court similarly
overruled Father‟s objection to their admissibility based on his inability to cross-examine.

       Mr. Street described the science underpinning the children‟s drug tests and
interpreted the results for the court. In his expert opinion, because the two children tested
positive for meth, but not for its parent drug, amphetamine,3 the positive test was caused
by “repeated exposure . . . in the environment due to the smoke” from the manufacture or
use of meth. On cross-examination, Mr. Street admitted that it was possible to get a

3
 According to Mr. Street, when a user ingests or inhales meth, the user‟s body breaks it down into a
metabolite called amphetamine.
                                                  3
positive result in a hair follicle test if a meth user‟s sweat repeatedly came into contact
with the tested hair and that he could not, with a certainty, determine whether sweat or
smoke was the cause in this case.

       Lastly, the court heard testimony from Charles Amerson, an assistant case
manager with the Department, who was part of the investigation the day of Father‟s
arrest. Mr. Amerson generally described pictures taken at the home during the
investigation and noted that he observed a swing set and children‟s swimming pool
approximately thirty to forty-five feet from the outbuilding where the alleged meth-
making tools had been discovered. Mr. Amerson also spoke to Father the day of the
investigation, who admitted that he would test positive for suboxone, marijuana, and
meth and that the children had been with him in the outbuilding the day before while he
gutted a deer.

       On June 18, 2015, the circuit court made findings of fact and issued an order
finding that by clear and convincing evidence the children were dependent and neglected
and severely abused within the meaning of the law. Specifically, the court found that two
of the children tested positive for meth and, relying on expert testimony, found that the
children “were exposed through the environment in which the father allowed them to be
present where vapors or smoke was present” due to either the preparation or use of meth.
The court also found that Father had admitted he would test positive for several drugs,
including meth, and that the children were present in the outbuilding, where drug
paraphernalia was discovered, on the day before the investigation. Father appealed.

                                             Issues

       Father raises two issues on appeal:

       I.     Whether the trial court erred in allowing drug test results into
       evidence without having a representative from the laboratory present in
       court.

       II.    Whether the trial court erred in holding that there was clear and
       convincing evidence to support a finding that the Appellant had committed
       severe child abuse against his minor children.

                                  Standard of Review

       The supreme court has opined that it is our duty “to determine whether the trial
court's findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006).
                                               4
Clear and convincing evidence is that which eliminates any serious doubt concerning the
correctness of the conclusions to be drawn from the evidence. O’Daniel v. Messier, 905
S.W.2d 182, 188 (Tenn. Ct. App. 1995). The first issue in this appeal is evidentiary in
nature, thus the standard of review for that issue is whether the trial court abused its
discretion. See Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992).
With these principles in mind, we turn to the substance of the appeal.

                                         Analysis

                                             I.

       We first address Father‟s argument that the trial court erred in allowing the
children‟s drug test results into evidence without having a representative from the
laboratory present in court. The Tennessee Rules of Evidence define hearsay as “a
statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c).
“Hearsay [evidence] is not admissible except as provided by [the Tennessee Rules of
Evidence] or otherwise by law.” Tenn. R. Evid. 802. Given the definition of hearsay, the
children‟s drug test results are hearsay that is not admissible unless it satisfies an
exception provided in the Rules of Evidence or some other law.

       The circuit court allowed the Department to introduce the drug test results into
evidence pursuant to Tennessee Rule of Evidence 803(6). “The determination of whether
a hearsay statement is admissible through an exception to the hearsay rule is left to the
sound discretion of the trial court.” Arias v. Duro Standard Prods. Co., 303 S.W.3d 256,
262 (Tenn. 2010) (citing State v. Stout, 46 S.W.3d 689, 697 (Tenn. 2001); State v.
Stinnett, 958 S.W.2d 329, 331 (Tenn. 1997)). An appellate court “will not reverse the
ruling of the trial court absent a showing that this discretion has been abused.” Id. (citing
Stout, 46 S.W.3d at 697).

       Rule 803(6) defines the prerequisites for admission as follows:

       A memorandum, report, record, or data compilation, in any form, of acts,
       events, conditions, opinions, or diagnoses made at or near the time by or
       from information transmitted by a person with knowledge and a business
       duty to record or transmit if kept in the course of a regularly conducted
       business activity and if it was the regular practice of that business activity
       to make the memorandum, report, record or data compilation, all as shown
       by the testimony of the custodian or other qualified witness . . . , unless the
       source of information or the method or circumstances of preparation
       indicate lack of trustworthiness. The term “business” as used in this
                                             5
      paragraph includes business, institution, profession, occupation, and calling
      of every kind, whether or not conducted for profit.

Tenn. R. Evid. 803(6). This exception “rests on the premise that records regularly kept in
the normal course of business are inherently trustworthy and reliable.” Alexander v.
Inman, 903 S.W.2d 686, 700 (Tenn. Ct. App. 1995), perm. app. denied, (Tenn. July 3,
1995).

       We have explained that Tennessee Rule of Evidence 803(6) includes the following
five criteria that must be satisfied for a document to be admissible under the business
records exception:

      1.    The document must be made at or near the time of the event
      recorded;

      2.     The person providing the information in the document must have
      firsthand knowledge of the recorded events or facts;

      3.     The person providing the information in the document must be under
      a business duty to record or transmit the information;

      4.   The business involved must have a regular practice of making such
      documents; and

      5.    The manner in which the information was provided or the document
      was prepared must not indicate that the document lacks trustworthiness.

Alexander, 903 S.W.2d at 700.

       Father first contends that the children‟s drug test results fall squarely within the
Arias court‟s holding that records created with litigation in mind are not admissible under
the business record exception to hearsay. In Arias, our supreme court concluded that a
doctor‟s report was generated for the purpose of litigation and, therefore, inadmissible
hearsay because the doctor “was not a treating physician, and his opinion was sought
solely for the purpose of establishing causation [in a worker‟s compensation litigation].”
Arias, 303 S.W.3d at 263. The Arias court expressed concern that broadly interpreting
the exception would allow “litigants . . . to present expert opinion on any subject by
merely introducing an expert‟s written report through a records custodian without ever
subjecting the expert to cross examination.” Id. Finally, the court opined that the
rationale supporting recognition of the various exceptions to the hearsay rule was “to
admit only hearsay evidence that exhibits inherent trustworthiness and indicia of
                                            6
reliability.” Id. (citing Neil P. Cohen, et al., Tennessee Law of Evidence § 8.01[3][c] at
8-12).

        Having considered the children‟s drug test results, we conclude that the facts of
this case are distinguishable from Arias. Whereas the business record at issue in Arias
was generated “solely for the purpose of establishing causation,” the hair follicle tests in
this case were taken not only for the possibility of litigation, but to determine whether the
children were exposed to any dangerous substances and, if so, that they might receive
proper medical treatment. Father argues that the fact that litigation was actively pending
in this case when the hair follicle tests were taken underscores their unreliability. We
disagree. The Department exists to protect children who are discovered to be living in
dangerous conditions. Unfortunately, that mission involves litigation. In order to protect
potentially drug-exposed children, the Department is often required to administer drug
tests to determine whether those children need medical treatment. However, without
litigation, the Department has no legal authority to administer the tests. Therefore, it is
illogical to say that the results of drug tests administered to children for the purpose of
their own medical well-being are unreliable because the Department had to initiate
litigation to have the children tested. The testing laboratory properly submitted a
business records affidavit, demonstrating that the requirements of Rule 803(6) had been
met. Based on the foregoing, we cannot say the circuit court abused its discretion in
finding that the children‟s drug test results were admissible hearsay under the business
records exception.

        Father also argues, with respect to the drug test results, that the court erred in
allowing the results to be entered into evidence without a representative of the laboratory
present in court because he was deprived of the opportunity to cross-examine the contents
of the report. According to Father, that was precisely the reason the Arias court held that
the doctor‟s report in that case was inadmissible. We disagree for several reasons.
        Firstly, this case is readily distinguishable from the analysis in Arias because the
business records exception does properly apply here. In Arias, the Tennessee Supreme
Court, as noted above, was rightly concerned with the possibility that potential expert
witnesses, who had generated reports solely for litigation, could avoid cross-examination
by submitting a “business record” rather than testifying. Arias, 303 S.W.3d at 263. The
Arias court implicitly determined that the circumstances surrounding the lab reports at
issue in that case indicated that the reports lacked trustworthiness. Id. Because we have
already determined that the test results “exhibit[] inherent trustworthiness and indicia of
reliability,” that concern is inapplicable here. Id.

        Secondly, while Father correctly notes that Tennessee Rule of Evidence 702
governs situations in which expert testimony may be required, Father misapplies the rule
in his argument. The rule states,
                                             7
           If scientific, technical, or other specialized knowledge will substantially
           assist the trier of fact to understand the evidence or to determine a fact in
           issue, a witness qualified as an expert by knowledge, skill, experience,
           training, or education may testify in the form of an opinion or otherwise.

Tenn. R. Evid. 702. Father contends that the rule requires that the drug test results
themselves require expert testimony prior to their admission into evidence. However,
that is simply not how the rule operates. In the context of the rule, the properly admitted
business records in this case, i.e., the test results, are evidence that “scientific, technical,
or other specialized knowledge will substantially assist the trier of fact” in understanding.
The interpretation of the test results requires expert testimony, which was provided at
trial by a qualified expert witness. Further, the expert witness, Mr. Street, testified to the
science underlying the drug test itself without objection; he also testified without
objection to the reliability of his conclusions under the McDaniel v. CSX Transportation,
Inc., factors. See McDaniel, 955 S.W.2d at 265.

        Thirdly, the fact that Father did not have the opportunity to cross-examine the
technician who actually performed the tests themselves did not impair Father‟s rights in
this case. Our supreme court recently addressed a similar issue in the criminal context in
State v. Hutchison, 482 S.W.3d 893 (Tenn. 2016). In that case, the trial court admitted an
autopsy report absent the presence of its author and allowed another doctor who did not
perform the autopsy to testify about the report. Id. Wary of a result that violated the
United States Constitution‟s Confrontation Clause,4 the Hutchison court looked to the
United States Supreme Court‟s decision in Williams v. Illinois, ––– U.S. –––, 132 S. Ct.
2221 (2012), for guidance. The four-Justice plurality opinion in Williams, authored by
Justice Alito and joined by Chief Justice Roberts and Justices Kennedy and Breyer,
“utilized a primary purpose test described as „an objective test‟ in which the court looks
at the „primary purpose that a reasonable person would have ascribed to [an out-of-court
statement], taking into account all of the surrounding circumstances.‟” Hutchison, 482
S.W.3d 893 (Tenn. 2016) (quoting Williams, 132 S. Ct. at 2243). The plurality‟s primary
purpose test focused on whether the out-of-court statement had “the primary purpose of
accusing a targeted individual.”

      Applying the reasoning supplied in Williams, the Hutchison court determined that
an autopsy report prepared in the normal course of business did not have the primary
purpose of accusing a targeted individual but determining how a victim died. Hutchison,
482 S.W.3d 893 (Tenn. 2016). The court then concluded that the autopsy report‟s
admission into evidence at trial did not violate the defendant‟s rights under the

4
    Because this is not a criminal case, the Confrontation Clause does not apply here.
                                                         8
Confrontation Clause. Id.

        While this is not a criminal case and the Confrontation Clause does not apply here,
we recognize that a finding of severe abuse has the potential to affect Father‟s
constitutional right to parent his children. However, based on our review of the record
and our understanding of the Tennessee Supreme Court‟s decision in Hutchison, we
conclude that the trial court did not err in allowing the drug test results into evidence,
even if subjected to constitutional scrutiny. The drug test results at issue cannot be said
to have the primary purpose of accusing a targeted individual. Taken by themselves, the
test results only show that two of the children tested positive for meth. The test results do
not, nor could they, point to the guilt of a particular individual at trial. Like the autopsy
report in Hutchison, the children‟s test results provide information regarding only the
medical state of the individual tested.5 Simply, we cannot say that the circuit court
abused its discretion in allowing the drug test results to be admitted into evidence.

                                                   II.

       We next address Father‟s contention that the trial court erred in finding that the
children were the victims of severe child abuse within the meaning of the law by clear
and convincing evidence. Tennessee Code Annotated section 37-1-102(b)(21)(A)(i)
defines severe child abuse as “[t]he knowing exposure of a child to or the knowing failure
to protect a child from abuse or neglect that is likely to cause serious bodily injury or
death and the knowing use of force on a child that is likely to cause serious bodily injury
or death.” Serious bodily injury is defined by the statute6 as including, but not limited to,

        second- or third-degree burns, a fracture of any bone, a concussion,
        subdural or subarachnoid bleeding, retinal hemorrhage, cerebral edema,
        brain contusion, injuries to the skin that involve severe bruising or the
        likelihood of permanent or protracted disfigurement, including those
        sustained by whipping children with objects.

Tenn. Code Ann. § 39-15-402(d). This Court has previously upheld findings of severe
child abuse where children were present in a place where their parents manufactured
meth. See In re Sandra M., No. 2011-01719-COA-R3-PT, 2012 WL 3201942 (Tenn. Ct.
App. Aug. 7, 2012); In re Meagan E., No. E2005-02440-COA-R3-PT, 2006 WL

5
  The Hutchison court also noted its agreement with a sister court that “an autopsy report prepared in the
normal course of business of a medical examiner‟s office is not rendered testimonial merely because the .
. . medical examiner performing the autopsy is aware that police suspect homicide and that a specific
individual might be responsible.” Id. (quoting People v. Leach, Ill. Dec. 477, 980 N.E.2d 593).
6
  Tenn. Code Ann. § 37-1-102(b)(21)(A)(ii) states that “serious bodily injury” shall have the meaning
given in § 39-15-204(d).
                                                    9
1473917 (Tenn. Ct. App. May 30, 2006). While the facts of Meagan E. were analyzed
under section 37-1-102(b)(21)(D),7 rather than subsection (21)(A), the reasoning
provided therein is instructive to this case. In Meagan E., we noted that “the chemicals
used to manufacture meth are highly flammable and can lead to explosions and severe
burns. Many chemicals, such as iodine and red phosphorous, are also highly poisonous.”
2006 WL 1473917, at *5. In Sandra M., we upheld a finding of severe child abuse under
both subsections (21)(A) and (21)(D) based on the fact that the children were knowingly
permitted to be present within a structure where meth was created. 2012 WL 3201942, at
*3.

        Here, the circuit court found that two of the children tested positive8 in their hair
follicle drug screen for meth and that the “children were present in the home and at least
two of them were present in the shed where items were found that are related to the
manufacture of [meth].” The discovery of “several „one pot‟ cooking bottles, gasser
bottles, pipe cutters used to extract lithium stripes from batteries, Drano used in the cook
bottles and other items” in conjunction with two of the children testing positive for meth
through environmental exposure “eliminates any serious or substantial doubt concerning
the correctness of the conclusions to be drawn from the evidence” by the circuit court in
this case. See O’Daniel , 905 S.W.2d at 188. By Father‟s own admission, the children
were present in the outbuilding, where items used to manufacture meth were discovered,
the day before Father‟s arrest and the Department‟s investigation. Thus, the trial court
heard clear and convincing evidence that Father knowingly exposed his children or
knowingly failed to protect his children from an environment that is likely to cause
serious bodily injury or death. The evidence does not preponderate against the facts
found by the court to underpin its determination that Father committed severe child
abuse. Accordingly, we affirm the circuit court‟s finding that Father committed severe
child abuse.

                                               Conclusion

        For the foregoing reasons, the judgment of the circuit court is affirmed. Costs of




7
  (D) Knowingly allowing a child to be present within a structure where the act of creating
methamphetamine, as that substance is identified in § 39-17-408(d)(2), is occurring.
8
  While Father did argue in his Reply Brief that “the record is silent to clear and convincing evidence . . .
to what degree the minor children were exposed to methamphetamine, as only two of the children tested
positive when all the children had been playing in the area,” he did not raise as an issue that the third
child‟s lack of a positive meth screen might prevent a finding of severe abuse.
                                                    10
this appeal are taxed to the Appellant, Jody E. Because Jody E. is proceeding in forma
pauperis, execution may issue for costs if necessary.



                                              _________________________________
                                              BRANDON O. GIBSON, JUDGE




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