SALT LAKE CITY — Follicle testing to detect illegal drugs in the hair of parents during child welfare monitoring would be banned under a legislative proposal because it has been found to be racially discriminatory.
“It discriminates against people with dark hair,” Rep. Christine Watkins, R-Price, sponsor of House Bill 73, said in a House Judiciary Committee hearing Tuesday.
“This is very, very disturbing,” Watkins said. “Melanin in dark hair binds with the drugs for a longer time.”
As a result, Black and Hispanic parents disproportionately test positive more often in hair follicle tests performed by the Utah Division of Child and Family Services, Watkins said.
She gave the example of two friends, one blond and one with dark hair, walking through a room where drugs may have been used.
The dark-haired parent could lose custody of her children.
“You are not using drugs, but your blond friend, who also did not do drugs, would be tested and come out negative.”
Rep. Kera Birkeland, R-Morgan, said she had two foster children whose parents were unjustly separated from their kids.
“They failed the hair test, but both parents aren’t doing drugs,” Birkeland said. “I have seen how this has hurt families.”
Certain medications, and even mouthwash and tonic water, can produce false positive tests, Watkins said.
DCFS Executive Director Diane Moore said her agency is moving away from using hair follicle tests and she supports HB 73.
“The chance of misrepresentation or misinterpretation is just too high,” Moore testified.
Hair tests, she said, “may inherently promote systemic racial bias against people with dark hair. And keep in mind, our data already shows there is an over-representation of ethnic minorities in the child welfare system.”
In a larger sense, Moore said she’s concerned there’s an over-reliance on tests anyway, but they are used because in-depth staff contact with parents and families is not as widespread as desired.
“We believe testing gives us a false sense of security,” Moore said. “We are just as concerned about false negatives as we are about false positives.”
And with follicle tests, “the racial indicators should make this a non-starter for us,” Moore said.
The bill would limit DCFS-related testing to blood, saliva and urine samples.
Moore said hair follicle testing is more expensive as well; passage of the bill would save the state an estimated $57,800.
Dr. Kristine Campbell, a pediatrician and professor at the University of Utah, said she quit using hair tests a decade ago.
In one instance, “There were concerns the mother might have relapsed,” she said. The child’s hair tested positive for methamphetamine “and she never saw the child again.”
Campbell said it is difficult to determine when drug exposure may have occurred, meaning a positive hair test could represent old activity.
But the Utah Judicial Council opposes the bill. Jim Bauer, 3rd District Juvenile Court trial court executive, said the judiciary is concerned the bill would infringe on a court’s authority to assess evidence in child welfare proceedings.
He said the bill is “a rule of evidence in the form of a statute.” It can be construed to exclude Breathalyzer and dermal patch testing as well.
“At times, hair follicle tests are used to reunify families sooner than without,” Bauer said. “And the scientific literature we’ve seen appears to be not conclusive on the issue of bias.”
Rep. Brady Brammer, R-Pleasant Grove, disagreed, saying the bill is a prohibition on a judge’s ordering of hair follicle tests, not the consideration of evidence offered.
Kane County Attorney Robert Van Dyke also opposed the bill, saying a hair test “is another tool in the toolbox to eliminate child abuse.”
Kirstin Norman, executive director of the Parental Defense Alliance of Utah, said some ethnic hair care products also increase drug absorption.
She said she has seen a false positive test “implode a family.”
One constant in juvenile justice cases, added Brett Peterson, director of the Utah Division of Juvenile Justice Services, is “the staggering level of racial and ethnic disparities.”
He said the state should use “other tools that do not raise that specter.”