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D. L. E. B. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

August 8, 2019

D. L. E. B., Appellant
Texas Department of Family and Protective Services, Appellee


          Before Chief Justice Rose, Justices Kelly and Smith


          Chari L. Kelly, Justice

         In this appeal from the trial court's order terminating D.L.E.B.'s parental rights to her child, L.J.B., the only issue is a challenge to the trial court's denial of D.L.E.B.'s request to conduct a Rule 705(b) examination of an expert witness. See Tex. R. Evid. 705(b) (before expert states opinion, trial court may permit party to examine expert outside jury's hearing about facts or data underlying expert's opinion). We will affirm.


         In June 2018, the Department was informed that D.L.E.B. and an unrelated household member had tested positive for cocaine.[1] The Department's investigator, Christine Timmons, checked the drug testing website and verified that the reported test results had been posted. Timmons went to D.L.E.B.'s home to check on L.J.B.'s welfare. L.J.B. was approximately one year old and living with D.L.E.B. and her husband and L.J.B.'s presumed father, M.B. When Timmons arrived, D.L.E.B. was not at home, but Timmons spoke with M.B., who reported that he was not sure whether D.L.E.B. was using illegal substances. When Timmons informed M.B. of the drug test results, M.B. stated that he was concerned because D.L.E.B. was L.J.B.'s primary caretaker. M.B., who was 83 years old, told Timmons that he could not care for L.J.B. by himself and that he believed it would be best if Timmons took L.J.B. into custody. Timmons then contacted D.L.E.B. by telephone. D.L.E.B. stated that she would be home shortly. When D.L.E.B. arrived at the home, Timmons told D.L.E.B. about the positive drug test. D.L.E.B. stated that M.B. had given her money about ten days earlier and that she had used that money to buy cocaine. M.B. denied that he knew D.L.E.B. was going to buy drugs with the money, but D.L.E.B. stated that M.B. knew what she intended to do with it. After D.L.E.B. acknowledged that she had used cocaine five times that month while she was caring for L.J.B., Timmons asked if D.L.E.B. would take an "instant drug test." D.L.E.B. agreed and stated that the drug test would be positive for cocaine, which it was. Timmons asked D.L.E.B. if there was anyone else who could supervise her and L.J.B. D.L.E.B. could not provide the name of anyone who could help care for L.J.B., and M.B. reaffirmed that he could not care for her himself.

         Timmons then stepped outside the house to call Department supervisor Kelli Johnson. While Timmons was outside, neighbors approached Timmons and told her they were concerned for the child. The neighbors stated that D.L.E.B. had been seen with a known drug dealer in the neighborhood and that they were concerned she was using drugs. Johnson told Timmons that the on call program director had given an approval for an exigent removal of L.J.B. from the home without D.L.E.B.'s signature based on D.L.E.B.'s drug use and M.B.'s statements that he would not be able to recognize whether D.L.E.B. was using drugs and that he was unable to care for L.J.B. Timmons went back inside the house and informed D.L.E.B. of the Department's intent to take L.J.B. into custody. D.L.E.B. told Timmons that "she knew this was going to happen" and that she had only "slipped" and was not really a drug user. Timmons explained the Department's concern for L.J.B. because D.L.E.B. was the child's primary caregiver and was under the influence of cocaine. D.L.E.B. told Timmons that she understood and would work any services necessary to regain custody of her daughter.

         On June 28, 2018, the district court signed an order appointing the Department L.J.B.'s temporary managing conservator and D.L.E.B. and M.B. as L.J.B.'s temporary possessory conservators with court-ordered periods of access and possession.[2] L.J.B. was placed with foster parents. In July 2018, the Department moved for a finding of aggravated circumstances. See Tex. Fam. Code § 262.2015 (providing for waiver of requirements of service plan and reasonable efforts to return child to parent and for accelerated trial schedule if court finds that parent has subjected child to aggravated circumstances). The Department stated that, since taking L.J.B. into custody, two separate hair follicle tests performed on L.J.B.'s hair tested positive for cocaine at extremely high levels. At the hearing, L.J.B.'s attorney ad litem elicited testimony from an expert witness, Bruce Jefferies, regarding the drug testing of L.J.B.'s hair follicles.

         Jefferies testified that he has, over the past 20 years, interviewed people who have undergone drug testing at Quest Diagnostics. In these interviews, Jefferies questions the individuals about their drug use. Jefferies testified that by correlating the drug tests with the information gleaned from the interviews he has, over the years, developed the ability to determine from the level of drugs detected in the test whether the person has engaged in "low use or high use or recreational use, exposure, non-exposure." Jefferies testified that he has developed a unique expertise in determining, from the number of picograms of drugs detected in the particular sample, the degree to which the person has used the particular drug detected. Jefferies reviewed the results of the lab testing done on L.J.B.'s hair and requested that a second test be run at Quest Diagnostics because that lab was FDA approved for drug tests on hair follicles and he believed its testing would provide more accurate information regarding the number of picograms of cocaine present in L.J.B.'s hair. Jefferies testified in detail about the process Quest Diagnostics uses for testing hair follicles. The test of L.J.B.'s hair was positive for cocaine and two cocaine metabolites, norcocaine and benzoylecgonine. Jefferies stated that the presence of the metabolites indicated that L.J.B. had ingested cocaine. Jefferies testified that the amount of cocaine detected, more than 20, 000 picograms, indicated that, in his opinion, L.J.B. had ingested cocaine "on a daily basis" over the 90 days before the hair follicle was tested. Jefferies opined that L.J.B. might have ingested cocaine either through breastfeeding or by eating cocaine left by someone in an accessible place. Jefferies stated that 20, 000 picograms is a "very extreme high level of cocaine" in a child's system and indicates chronic ingestion of cocaine. D.L.E.B.'s attorney cross-examined the witness but did not object to any aspect of Jefferies's testimony. After the hearing, the court granted the motion for a finding of aggravated circumstances and ordered that visits between D.L.E.B. and L.J.B. cease until further court order.

         The case was set for a jury trial in March 2019. At the pretrial conference, the parties agreed to pre-admit several exhibits, including Jefferies's curriculum vitae and the reporter's record of his testimony from the hearing on the motion for a finding of aggravated circumstances. After the jury was empaneled, D.L.E.B.'s counsel stated that he had something he "wanted to put on the record." He then stated:

I distributed to all counsel and I'll give it to the Court a case. It's the leading case. It's sort of the newest version of the Daubert case in Texas from the Texas Supreme Court. It's from 1996. It's still widely cited. And this case concerns the qualifications of an expert.[3] We've got a drug expert coming in from Houston.[4] And I'm not challenging him at this point.
What I want to do is I want to have a Rule 705B hearing outside the presence of the jury to discuss his qualifications to reach an ultimate issue. And I think I'm entitled to do that. I don't see anything in the pretrial order saying I can't do that. And it makes sense to do that, because otherwise I'd end up asking him a bunch of questions on the witness stand and anyway in front of the jury. And I just as soon follow the rule and do it outside the presence of the jury and run a cleaner trial.

         After hearing arguments from counsel, the trial court stated that it would consider the request and that if it did agree to permit a Rule 705(b) examination of Jefferies, it would take place at the lunch break on the first day of trial. On the morning of the first day of trial, the court informed the parties that it was not granting the request to conduct a Rule 705(b) examination. The trial court observed that Jefferies had already testified without objection at a previous hearing and that both his curriculum vitae and a transcript of his testimony had been admitted into evidence without objection.

         Jefferies was called as a witness at trial and provided substantially the same testimony as he had previously given at the hearing on the motion for a finding of aggravated circumstances. Counsel for D.L.E.B. did not object to the testimony regarding the levels of cocaine found in L.J.B.'s hair follicles or to the testimony that the levels constituted a very high concentration of cocaine. D.L.E.B.'s counsel cross-examined the witness, focusing primarily on how the rate of growth of a person's hair might affect the levels of cocaine that would be detected in a hair follicle drug test. He also questioned Jefferies regarding ...

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