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Click here for the full text of this decision FACTS:The Department of Protective and Regulatory Services filed a petition against Debbie Marien and Stefan Geller to terminate their rights to their two children. Evidence was admitted that the pair lived an itinerant lifestyle, moving from motel to motel, often begging for food and money, and sometimes leaving their children unsupervised. There was also some testimony from a co-tenant of one of the hotels � Alma Bradshaw � that she saw Geller act abusively toward Marien and the children, that he drank alcohol and had flung one of the children across the room when the child walked in front of the television set. Bradshaw also testified that Marien used hotel towels as diapers for the kids, that she fed them sugar water instead of milk and that Marien had dragged one child across the parking lot pavement by an arm and a leg. It was Bradshaw who contacted DPRS. The department’s own investigation revealed that both parents admitted to drug use as teens, but both said they did not currently use drugs. Both parents agreed to drug testing in March 2002 but a hair sample from Marien could not be secured. After the department removed the children from the parents, Bradshaw said she arranged for a place for the parents to stay. There, Geller allegedly threatened to shoot Marien, and Marien confirmed this to the police. The department filed a termination petition, after which Geller slashed Bradshaw’s throat and blamed her for losing his kids. Bradshaw admitted that she had been convicted 10 years earlier of sexual assault against her 2-year-old child, that she had been taking psychotropic medicine for 20 years and that she had been both suicidal and self-destructive. Her medical records were entered into evidence. Both parents submitted to five random urine tests, and all were negative for drugs. Nonetheless, hair samples taken from Marien in October 2002 and from Geller in February 2003, both tested positive for cocaine. The state’s expert, James Turnage, discussed his collection of both parents’ hair samples. He explained how he sent them to a laboratory in Nevada and how the lab returned a report noting the presence of cocaine. The reports were not admitted into evidence, so Turnage explained that they indicated the methodology used, and he explained what those methodologies were. The reports did not list the specific tests or machines used, however. The trial court granted the petition to terminate. HOLDING:Reversed and remanded. First reviewing the sufficiency of the evidence to support the termination as to Geller, the court notes that, although some facts were disputed, a reasonable fact finder could resolve those disputes in favor of the findings supporting termination. Based on this and other evidence in the record, viewed in the light most favorable to the findings, the jury could reasonably form a firm belief or conviction that Geller engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children. The court then reviews the propriety of admitting Turnage’s expert witness testimony. Though the state contends Turnage was only an expert in collecting samples, sending them to a lab and interpreting the results, the court points out that the actual results are the relevant evidence of drug use in this case. By Turnage’s own admission, he was not qualified to give an opinion as to the results of the scientific tests on the samples he collected. He did not have expertise on the actual subject about which he offered his expert opinion. Without a positive result, Turnage’s opinions about hair sampling were irrelevant. The court notes that the department did not offer evidence explaining the scientific theory and reliability of the various tests used for determining whether a person had used cocaine. Nor did the department request the trial court take judicial notice of the reliability of these scientific tests. The court finds that the trial court was therefore not presented with the information necessary for it to perform its gatekeeping function. “We do not suggest that the testing methods used by the remote laboratory are not reliable, only that this record does not establish the reliability of those methods either by evidence or through a proper request for judicial notice. . . . Further, even though the scientific theory of testing hair samples for illegal drugs using [the test mentioned in the report] may be reliable, there was no showing of the reliable application of that theory in this case. . . . Turnage’s expertise in collecting hair samples for testing could not bootstrap the reliability of the actual testing procedures done by the remote laboratory.” The court finds that the trial court’s error in admitting Turnage’s testimony on drug use was critical to the case. It was disputed whether either parent had used drugs, as they both denied using drugs. Much of the other evidence was disputed, too. Bradshaw’s credibility was at issue, for example. Consequently the error was not harmless, the court holds, and the case should be remanded. OPINION:Moseley, J.; Moseley, Bridges and O’Neill, JJ.

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