Appellate Court in Child Custody Case Upholds Right to Refuse DHR Drug Tests
Updated: Nov 15
In a ruling just released on 10-18-2019, the Alabama Court of Civil Appeals overturned a trial court’s Termination of Parental Rights of a father who “routinely refused to [drug] test,” according to DHR. The Court stated that “the failure to test does not constitute affirmative proof that [someone] is using drugs.” Id est, and make no mistake, the law in Alabama is that refusal to drug test for DHR, by itself, is in no way, shape, form or fashion evidence that someone “has something to hide” and is more likely to be a drug user.
(Child Custody cases in the Juvenile Courts, especially those involving DHR, are confidential. However, the rulings of the Alabama Court of Civil Appeals, which handles appeals of DHR as well as private Child Custody cases, are publicly available here. The specific order addressed in this article can be found here. No confidential information was utilized to research or prepare this article. Neither the author nor Foxtrot Family Law provided any representation or services in either the underlying case or its appeal – but I must admit I’m jealous of whichever parent’s attorney did).
The appellate court discussed some relevant, but not dispositive, facts of the case. The father admitted to having smoked marijuana and taken a Lortab for which he did not have a prescription, having done so 4 years before the trial of this matter. There was also evidence that father behaved erratically and was banned by not one but two hospitals who were providing care to one of his other children. The Father even allegedly threatened hospital staff. Point is, this guy had his issues or at least a history of them. Certainly, DHR had good grounds to investigate him. Further, it was reasonable that DHR would ask him to drug test. However, it is unclear from the record whether DHR ever utilized the judicial process and procedure to show the Juvenile Court what may have constituted probable cause to order the father to drug test.
In any case, the Father testified that he did not have an issue with drugs and it is undisputed that he “routinely refused to test.” Furthermore, the Father had completed a parenting program, an anger management program, and the 3 drug tests that the Father did take between August, 2017, and March, 2019, showed no illicit substances. (This is an important point for the reader. Although there is no affirmative duty to drug test without a court order, the Court will consider the totality of the circumstances.)
As we’ve said before, refusing an informal request by DHR to drug test can have immediate and scary consequences, just like refusing a breath test, even when you could have passed, can result in a night in jail. But, in each case, your exercising of your constitutional rights, in and of itself, cannot be held against you. If you are going to stand up to DHR and protect you and your family’s rights to privacy, it will be crucial to utilize the services, advice, counsel and advocacy of a competent Child Custody lawyer or law firm.
Either way and in conclusion, you do not have to drug test for DHR and the Alabama Court of Civil Appeals just reminded us once again. Believe me, DHR has plenty of lawyers who are more than capable of pursuing whatever court order they think they’re entitled to without you just agreeing to hand them evidence to prove their case against you. If you are taking drug tests for DHR without a court order you are making the choice to do so. DHR is not making you; they’re just threatening you. You don’t have to tolerate it.
This article contains general information and should not be construed as legal advice for you and or your unique situation. If you would like to speak more about how you, as a Committed Parent or Caring Relative, can be more effective in your Child Custody case, please visit www.ThinkFoxtrot.com/public_calendars/ to schedule your initial consultation at one of our offices. ~SW, Foxtrot