Hair drug tests: A mother's anguish over losing her girls
Hair drug tests: A mother's anguish over losing her girls
I have an answer .... she can take two daughters to raise as her own from the ones who stole her daughters from her ...The last time Christine Rupert saw her daughters was in a dingy church basement in Kitchener, surrounded by awkward and emotional reunions between other parents and their kids.
It was September 2008. Molly, a tentative 18-month-old with fine brown hair and wide eyes, sat as if glued to her mom's lap. Emily, 6 months, mainly snoozed in her car seat.
Both girls, whose names have been changed to protect their identities, were removed at birth because of their mom's suspected cocaine use, though both newborns tested negative for drugs. They remained in foster care based, primarily, on hair tests that showed Rupert was a heavy cocaine user - a finding she fiercely denied and was going to great lengths to disprove.
Rupert acknowledged she had previously done cocaine recreationally, at parties, a few times a year. However, she was adamant she had not taken the drug since fall 2006, and had always been a good mom to her kids, including two older sons and a brother she took in as her own.
The two-hour visits were supervised by the Children's Aid Society, and always unfolded the same way. Molly might loosen her grip enough to play with a toy or eat a snack, but when it was time to say goodbye again, she would start wailing.
Rupert waited until the girls were out of sight before she let her own tears flow. It always felt as if she was losing them for the first time.
By the time the case was decided, Rupert had produced nearly 70 clean urine tests, cut ties with an abusive ex, and had ample money and space to care for the girls. But in April 2009, a judge made both Molly and Emily wards of the province. They were adopted by separate families, without access to their mom.
The main reason the judge gave for his decision: Positive cocaine hair test results from the Motherisk laboratory at the Hospital for Sick Children.
Child protection cases are inherently messy. Using their best judgment, children's aid workers make life-changing decisions for families based on real and perceived risks to kids in circumstances that often fall short of typical, middle-class expectations.
Until recently, Motherisk's hair drug and alcohol tests have been accepted without challenge as evidence of parental substance abuse in Ontario courts, where they are seen as a rare, quantifiable measure in a sea of intangibles, which family lawyers say can easily tip the scales.
In November, amid an ongoing Star investigation into the reliability of Motherisk's analysis, the province appointed retired Court of Appeal Justice Susan Lang to probe five years' worth of hair drug tests performed by the lab. The independent review is a first step that could lead to a much larger inquiry into individual cases.
Lang is specifically investigating hair drug tests from 2005 to 2010, before Motherisk started analyzing samples using a technique widely regarded as the gold standard, to determine whether the results were used appropriately in child protection and criminal proceedings.
During this period, an unknown number of parents lost their kids based, in some part, on Motherisk's hair drug tests.
Christine Rupert is one of them.
Strict privacy rules, intended to protect the kids involved, prevent children's aid societies from discussing specific cases and anyone except the parties involved from accessing related court files.
But the copies of court documents Rupert provided for this story - including affidavits from children's aid workers, drug test results and the final judgment - state that the battle over her daughters began in September 2006, when she was in the early stages of her pregnancy with Molly, her first girl.
The hospital in Kitchener alerted Family and Children's Services of the Waterloo Region after Rupert was brought in for treatment upon "passing out in a car," according to the 2009 judgment. She tested positive for cocaine.
Rupert, who disputes many of the claims children's aid and the court outlined in the documents, says she fainted during a heated fight with Molly's father, John.
She says the last time she did cocaine was at a party, before she realized she was pregnant - a fact she says she shared with children's aid. But she says John, whose name has been changed, was a heavy user. She believes her exposure to him may have played a role in the positive test.
Their relationship, which was on-and-off by that point, was her first real exposure to hard drugs, she says. He had violent mood swings, and physically overpowered her on several occasions.
It was a rare rough patch for Rupert, 44, who had spent the bulk of her adult years as a hard-working single mom, juggling multiple jobs to provide for her two boys and younger brother.
But as soon as she found out she was pregnant with Molly "she was straight as a judge," says her brother, Mike Ouimet. She gave up drinking and smoking, Ouimet says, but remained concerned about the effects of the cocaine she used before she knew about the baby. "She was pretty torn up about that," he says.
According to a letter to Rupert's lawyer from a drug-testing consultant who testified at court, she started submitting to urine drug screening in December 2006, and tested negative for drugs throughout the pregnancy. (The negative urine screens during this period are also noted in the 2009 judgment.)
Motherisk's first documented involvement in the case was when Molly was born in the spring of 2007. The lab tested the baby's hair and first stool for drugs. Both tests came back clean.
However, Molly was apprehended at birth, according to the judgment, "when the mother would not sign a temporary care agreement" so she could "attend for drug treatment and secure housing."
Rupert says she did not need drug treatment because she was not using drugs. She had the means to rent a place but had moved into Anselma House, a crisis centre for abused women, where she says children's aid told her she had to stay "or they would take the baby."
The discrepancy, she says, is an example of how the Children's Aid Society refused to consider evidence that did not support their suspicions.
"They nailed me to the flipping wall," she says. "I had nowhere to go."
She says she rented an apartment but stayed at Anselma House, in large part to convince children's aid that she was not using drugs and was protected from John, and kept fighting to get Molly back. (In an affidavit filed in court, a children's aid worker confirmed he visited her at a two-bedroom townhouse later that year.)
The first hair drug screen mentioned in the documents was performed in June 2007 at the request of children's aid, through Life Labs, then called MDS, and came back positive for cocaine. Subsequent hair drug tests conducted through Life Labs in October, January and February were positive for cocaine, but the concentrations varied widely.
As a result of the January 2008 hair test results, the society amended its protection application for Molly to seek to make her a Crown ward with no access to her mom "for the purpose of meeting her need for permanency through her being adopted," according to a worker's affidavit.
Rupert, who consistently maintained she was not doing drugs, was determined to prove the tests wrong. She soon enlisted the help of Motherisk, which she believed would prove her case.
The positive hair tests baffled Rupert, whose 70 urine tests had come back clean for drugs in all but one instance over the course of several years.
In early 2008, she did some research and learned that because hair grows at about one centimetre per month, the hair matrix can be tested in one-month segments, to reveal historical drug use.
Motherisk performed these segmented hair tests, and she hoped the results would disprove what was coming back from Life Labs.
The pressure, meanwhile, had ratcheted up: Rupert was due to give birth again in the spring.
"As soon as she found out she was pregnant, it was like a quest for her. She was going to be able to keep (the baby)," her brother recalls.
On Feb. 5 and April 18, 2008, by her choice and at her expense, she submitted hair samples to both Life Labs and Motherisk, so two independent facilities could test her hair.
All the tests came back positive for cocaine, with varying concentrations between the medium and high ranges.
It is not clear if the tests were conducted independently. Life Labs spokesman Mitchell Toker told the Star in an email that, from 2007 to 2009, his company collected samples and sent them either to Motherisk or another lab for "testing and analysis," depending on how the request was made.
He said he could not discuss the specifics of the case and none of the documents the Star obtained, including the 2009 judgment, mention a connection between Life Labs and Motherisk, which declined to comment for this story.
When Emily was born, Rupert says she refused pain medication, believing it could taint future drug tests.
But despite dozens of clean urine tests - she tested positive once, before she was pregnant with Emily - the newborn was taken from her, "due to the results of the hair screens," the 2009 judgment states.
Like her sister, Emily's hair and first stool tested negative for drugs, according to Motherisk's analysis. And like her sister, she remained in foster care anyway.
"Christine was literally incoherent for about a week," her brother says. "She was in her room, pretty much just sobbing uncontrollably."
Two crucial, largely unanswered questions in Rupert's case are how her hair was tested for cocaine, and the reliability of those tests.
The province decided to probe Motherisk after the Star reported on questions surrounding the accuracy of the type of hair drug test the lab performed in 2005 and presented in a 2009 criminal case. The Court of Appeal tossed the cocaine-related convictions in that case in October, after fresh expert evidence criticized Motherisk's hair tests as "preliminary."
Although forensic standards stipulate hair tests presented in court must be confirmed with a gold-standard test, Sick Kids has said Motherisk did not start using the confirmatory test until 2010, casting doubt over at least five years of analysis.
However, in a letter to the children's aid worker in Rupert's case during her final hearing, Motherisk manager Joey Gareri stated that a sample collected in January 2009 had been tested with one of the gold-standard tests "as pertinent to the case history involved with this client."
It appears that test was done at U.S. Drug Testing Laboratories in Des Plaines, Ill., which Gareri referred to as "Motherisk's reference laboratory." Gareri also stated that several samples identified during the court proceedings "had not previously been confirmed with secondary analysis."
One of those samples did not have enough hair remaining for further testing, he said. In the other case, he said the amount of hair was "borderline sufficient and successful analysis may not be possible." The outcome of that effort is not known.
Gareri said the analysis performed on the hair sample from January 2009 showed "significant cocaine exposure" during the previous six-month period.
"The result falls into the 'high' range of exposure, indicating it is about the 75th percentile for positive cocaine findings in our laboratory's client population," he said.
Toker said he "cannot speak to how hair samples were analyzed" through Life Labs.
Although Emily's hair tested negative for cocaine at birth, it tested positive for the drug six weeks later and again in October 2008. (Molly's hair never tested positive.)
Rupert, whose urine screens continued to be clean throughout this period when she never had custody of her daughter, wondered if perhaps the baby had somehow been exposed to the drug at the group access centre, where supervised visits were held with other parents.
At the hearing, Gareri testified that if the mother didn't do cocaine until the final days of her pregnancy, it was possible for the baby's first stool and hair samples to test negative, but there could be "a positive result on more hair that grew out from the scalp following the birth."
About six months before her final hearing, Rupert's visits with the girls at an access centre stopped, following an emotional breakdown in fall 2008.
A letter to her lawyer from children's aid stated that visits were being temporarily suspended until she recovered. In an affidavit, a children's aid worker said he was advised in November 2008 that Rupert "wished to have no contact" with him. She says she later tried to resume visits, but children's aid told her lawyer to hold off until court proceedings were through.
Rupert says the breakdown was due to the anxiety of trying for years to prove her innocence.
"They kept saying, 'Stop doing drugs.' I kept saying, 'I'm not on fricking drugs. Somebody please help me,'" she recalls. "I kept going back for these stupid tests. But these stupid tests kept coming back worse. I was digging a hole."
Karen Spencer, the acting director of Family and Children's Services of the Waterloo Region, said she could not respond to specific questions about the case, but in general, said hair drug tests are "one factor out of many factors" that are considered in child protection cases.
"We would never made a decision to apprehend children or take parents' rights away - to make kids Crown wards - based on a positive hair test alone," she said. "It really is based on the parents' ability to safely care for their children."
Spencer also said it is relatively rare for the agency to use drug screens in child protection matters. She said she has no plans to discontinue the relationship with Motherisk in light of the review, or any concerns about past cases that may have relied on the lab's analysis.
The judge that made Molly and Emily Crown wards cited several factors in his decision, including the "emotional breakdown" and the recent lack of contact with the girls, which he claimed Rupert initiated "to meet her own emotional needs."
"To abandon them completely indicates that she could not really have been concerned about the care they were receiving in their foster homes," he wrote.
However, he said he believed she had overcome other challenges, including ending all involvement with their father, and taking "appropriate steps to ensure her safety from him." The judge said he had "no doubt" she had "appropriate accommodation" for the girls and the "appropriate furnishings to meet their needs."
From the time Rupert had Molly, reasons children's aid cited for seeking protective custody did not include observations of visible impairment or drug use, according to the documents obtained by the Star.
International experts, a British high court and a U.S. government department have raised questions about the reliability of hair drug and alcohol tests in general, as the Star has previously reported, but it does not appear doubts about the effects of hair products, colour or other concerns were considered in this case.
Despite Rupert's insistence she had not done cocaine since fall 2006, the positive drug hair tests remained the major sticking point.
Gareri and another expert (who Rupert called) testified that the levels of cocaine in her hair could not have been caused by passive exposure unless she were living in a crack house or processing cocaine daily, which there was "no evidence" she was doing, the judgment states. Hair tests, unlike urine tests, could not be falsified, they said.
"The difficulty with her plan is whether the children can be protected from harm in her care. I find they cannot," the judge wrote. "Ms Rupert is either using cocaine, is accidentally ingesting cocaine regularly or is in an environment regularly that is producing high amounts of cocaine."
The girls, the judge noted, were "both thriving and are adoptable."
"Any access order to Ms Rupert . . . would impair the girls' opportunity for adoption," he wrote. "They are very young and should not spend a moment more in temporary care, but should become part of a permanent family home."
On a recent afternoon, Rupert sat at her dining room table in Bracebridge, sipping coffee and flipping through old photos of her daughters.
For the purposes of the visit, she had hauled out all of her files from storage, which fill about a dozen bankers' boxes.
After she lost the girls for good, she had to leave Kitchener, because she couldn't stop looking for them, in the faces of the babies in strollers at the grocery store, in cars, on the streets.
"I wasn't having a normal day-to-day life," she says. "I couldn't function."
When she heard about the province's review, she started to cry.
"This wrecked my life," she says. "The girls - I don't even know where they are. I don't even know if they're OK."
It is difficult to think about where to place her hope if the review leads to a larger inquiry - if a court decides she was right all along.
"I can't say that I would go back in and remove them from where they are now. Does the selfish person in me want to? Oh yeah. But the loving mother in me also says that I can't disrupt their lives even more than what's already happened," she says. "I don't even know what the answer is."