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Barbaro v. Smith

Court of Appeals of Mississippi

July 16, 2019


          DATE OF JUDGMENT: 01/25/2017





          J. WILSON, P.J.

         ¶1. Pursuant to an agreed judgment, Tamara Barbaro was granted physical custody of her son, Will, [1] and Will's father, Coty Smith, was granted visitation. About one year later, when Will was eighteen months old, Barbaro alleged that Smith had allowed Will to ingest two opioids. In support of her claim, Barbaro submitted the results of a drug test that purported to show that Will had tested positive for the drugs. Barbaro also informed the court that Smith had been arrested recently and charged with drug trafficking. Smith maintained his innocence, denied that he exposed Will to the drugs, and accused Barbaro of fabricating the positive drug test. After an emergency hearing, the court temporarily suspended Smith's visitation and appointed a guardian ad litem (GAL).

         ¶2. After investigating Barbaro's allegations, the GAL concluded that Barbaro not only fabricated the drug test but also participated in a scheme to plant drugs in Smith's truck. Law enforcement also concluded that Smith had been setup and remanded the charge against him to the file. The GAL recommended that the chancellor grant Smith custody of Will. After a trial, the chancellor agreed with the GAL's recommendation, granted Smith sole physical and legal custody of Will, and granted Barbaro visitation. Barbaro filed a motion to alter or amend the judgment, which the chancellor denied, and then appealed.

         ¶3. On appeal, Barbaro argues that the chancellor erred by denying her motion to alter or amend the judgment as untimely. She also argues that the chancellor erred by finding that she falsified the drug test and played a role in a scheme to plant drugs, by finding a material change in circumstances that adversely affected Will, and by finding that it would be in Will's best interest to modify custody. Finally, Barbaro contends that the chancellor "abused his discretion to the extent that he gave any weight to the [GAL's] report." We find no reversible error and affirm the judgment of the chancery court.


         ¶4. Will was born in November 2014. In April 2015, the chancery court entered an agreed judgment granting physical custody to Barbaro, joint legal custody to Barbaro and Smith, and visitation to Smith.

         ¶5. On Friday, May 13, 2016, Barbaro was scheduled to meet Smith for a visitation exchange. Barbaro testified that she suspected that Smith had been giving Will some type of medication or drug to make him sleepy and more compliant, so she decided to have Will drug tested before she left him with Smith and again after she picked him up. She took Will to Capital DNA on May 13 for a urine sample drug test. That test was negative.

         ¶6. When Smith returned Will to Barbaro on Sunday, May 15, Barbaro again took Will to Capital DNA for a urine sample drug test. Subsequent results of the test indicated that Will's urine contained 3, 100 nanograms per milliliter of hydrocodone and 1, 590 nanograms per milliliter of hydromorphone, also known as Dilaudid.

         ¶7. On May 25, a narcotics investigator with the Rankin County Sheriff's Department pulled over a pickup truck driven by Smith after he witnessed Smith commit traffic violations. The investigator had received a tip that Smith would be transporting drugs in his truck. Smith told the investigator that he did not have any drugs, and he gave the investigator permission to search the truck. A drug-sniffing dog alerted the officer to an unlocked toolbox in the bed of the truck. The investigator found pills, marijuana, and possible steroids in the toolbox. Smith was arrested and charged with trafficking controlled substances.

         Hearing on Barbaro's Emergency Motion

         ¶8. On May 30, 2016, Barbaro filed an emergency motion to suspend Smith's summer visitation. The chancery court held a hearing on the motion the next day.

         ¶9. Barbaro testified that when Smith returned Will to her on May 15, Will was groggy and lethargic. Barbaro called Brandy Jones of Capital DNA, and Jones met her at Capital DNA's office. Barbaro testified that the "instant-read" cup that she used to collect Will's urine sample immediately showed a positive result for "opiates." According to Barbaro, Jones sent her a text message with the results of the laboratory test-showing levels of hydrocodone and hydromorphone-on Friday, May 20.

         ¶10. Smith denied giving Will any substance that would have resulted in a positive drug test. He testified that he had only given Will medicines prescribed by Will's pediatrician. Smith testified that he was sick and went to a doctor after his last visit with Will. The doctor prescribed a codeine cough syrup, and Smith had the prescription filled. However, that all occurred after his last visit with Will. Smith denied that he had any codeine in his possession during his last visit with Will. Smith testified that no one else had given Will any drugs the weekend of May 13-15. During that weekend, Smith's mother, Gail Hopkins, and Smith's girlfriend, Layla Mitchell, had also been with Will.

         ¶11. Mitchell also testified at the hearing. Mitchell provided childcare for Will until April 2016, which was around the time she started dating Smith. Mitchell suspected that Barbaro stopped using her for childcare because of her relationship with Smith. Mitchell had been with Smith and Will the weekend of May 15. Mitchell said that Will seemed to have a cold and that he was a little cranky and sleepy. Smith gave him some Bromfed, which Will had been prescribed. Bromfed does not have hydrocodone, hydromorphone, or codeine in it. Other than his cold, Will's behavior seemed normal.

         ¶12. At the conclusion of the hearing, the chancellor suspended Smith's visitation. He appointed a GAL to investigate the allegations of abuse and neglect. He ordered Smith and Barbaro to submit to both urine and hair follicle drug tests. He also ordered a hair follicle test to be performed on Will.

         Hearing on GAL's Emergency Motion

         ¶13. On June 20, 2016, the GAL filed an emergency motion seeking an injunction against Barbaro and a change of custody to Smith. The chancery court held a hearing on the motion two days later.

         ¶14. Gail Hopkins, Smith's mother, testified that she had been with Will and Smith the weekend of May 13-15, that Will had a cough, and that the only medicine she gave him was his usual allergy medicine. Hopkins testified that Will was not groggy or lethargic and behaved normally throughout the weekend.

         ¶15. Brandy Jones of Capital DNA testified that Barbaro requested urine sample drug tests for her and Will on Friday, May 13. Barbaro requested another urine sample drug test for Will on Sunday, May 15. Will was fitted with a urine collection bag to capture a sample. Jones testified that Will was agitated on May 15, which was normal for an eighteen-month-old child being fitted with a urine collection bag. Jones denied that Will seemed lethargic. The drug tests were all "private" tests, meaning they were neither court-ordered nor personally observed by testing personnel. Jones explained to Barbaro the differences between a private test and an observed test, and Barbaro opted for a private test.

         ¶16. Capital DNA sent Will's sample to a laboratory for testing. On May 20, the results came back showing that the urine contained 3, 100 nanograms per milliliter of hydrocodone and 1, 590 nanograms per milliliter of hydromorphone.

         ¶17. Jones also testified as an expert in drug testing. She testified that the cutoff level for Will's urine tests was 300 nanograms per milliliter, meaning that lower levels of a substance would not result in a "positive" test. Will's sample contained more than ten times the cutoff level for hydrocodone and more than five times the cutoff level for hydromorphone. Jones testified that the strength of a dosage would vary based on body type and other factors, but she stated that those were "significant" levels of hydrocodone and hydromorphone in an eighteen-month-old child.

         ¶18. Jones explained the differences between urine tests and hair follicle tests. She testified that hydrocodone or codeine typically will show up in a child's urine within "about an hour" or "one to three hours." Jones further testified that, depending on factors such as the size of the dose and the person's body weight and metabolism, a urine test can reveal drugs consumed during the previous twenty-four to forty-eight hours. In contrast, depending on the rate of hair growth and other factors, it "typically" takes fourteen to thirty days for a drug to show up in a hair follicle test, and a hair follicle test can reveal drugs taken up to one year prior to the test.

         ¶19. Jones also testified about the results of the court-ordered drug tests of Smith, Barbaro, and Will that were conducted on May 31. Smith's May 31 hair follicle test came back positive for hydrocodone. Jones testified that the positive test result indicated that Smith had used the drug between two weeks and one year prior to the test. Smith's urine test was negative. Both of Barbaro's tests were negative. Will's hair follicle test was negative, but Jones stated that it can take up to thirty days for a drug to show up in a hair follicle test.

         ¶20. Brett McAlpin, a narcotics investigator with the Rankin County Sheriff's Department, testified as a fact witness and an expert in narcotics investigations. McAlpin was the officer who arrested Smith on May 25. McAlpin testified that another officer in his office had received a tip from Jesse Tatum, an officer with the Jackson Police Department. McAlpin learned that an informant had advised law enforcement that Smith would be transporting drugs in his truck when he returned home from his job in Jackson. The tip included Smith's place of work, what time he would leave work and arrive in Rankin County, and the make, model, color, and license plate number of the truck. The informant even stated that officers would find hydrocodone, steroids, marijuana, and possibly methamphetamine inside a toolbox in the bed of the truck. McAlpin followed Smith's truck from Jackson to Pearl and initiated a traffic stop after observing multiple traffic violations.

         ¶21. McAlpin testified that Smith denied that he had any illegal drugs in the truck, and he voluntarily gave officers permission to search his truck. The toolbox in the bed of the truck was unlocked. McAlpin opened it and found pills, marijuana, and steroids inside. McAlpin testified that Smith appeared upset and genuinely surprised by the officers' discovery of the drugs. Smith said something to the effect that Barbaro had to be involved somehow.

         ¶22. McAlpin subsequently learned that the original source of the tip was Chris Kyzar. McAlpin then learned that Kyzar had been in a romantic relationship with Layla Mitchell, Smith's current girlfriend. Kyzar told McAlpin that Barbaro had given him the information about drugs being in Smith's truck. Kyzar told McAlpin that he had no independent knowledge about the drugs and knew only what Barbaro had told him. McAlpin testified that the drug charge against Smith was being remanded to the file. McAlpin explained that the charge was not going to be pursued because Kyzar's tip was suspicious and, based on totality of the circumstances, Smith appeared to have been setup.

         ¶23. Kyzar also testified. He acknowledged that he had been engaged to Mitchell, who was dating Smith at the time of the hearing. Kyzar knew Barbaro through Mitchell, but he testified that he and Barbaro were not friends. In May 2016, Kyzar and Barbaro began talking on the phone and exchanging text messages. According to Kyzar, he wanted to know why Barbaro no longer wanted Mitchell to provide childcare for Will. Kyzar testified that Barbaro said she was concerned because Mitchell tried to buy Adderall from Barbaro.[2]Kyzar also testified that Barbaro contacted him to ask whether he had ever seen Mitchell neglect Will or any other children in her care.

         ¶24. Kyzar and Barbaro complained to one another about Smith and Mitchell. Kyzar testified that Barbaro told him that Smith had abused drugs in the past, and she suspected that he was using steroids again. Barbaro said that if Smith was using steroids, he was probably selling them too. Kyzar testified that Barbaro believed Smith's drug use was putting Will at risk. According to Kyzar, he decided to call Tatum[3] after Barbaro told him that Will had tested positive for drugs.

         ¶25. Kyzar testified that he told Tatum only that Barbaro suspected that Smith might be using and selling drugs and might be drugging Will. Kyzar denied telling Tatum that Smith definitely had drugs in his truck. Kyzar also denied stating that the drugs would be in Smith's toolbox or that Smith was in possession of specific drugs. Kyzar acknowledged that he provided the make and model of Smith's truck, Smith's address, Smith's employer, and the time that Smith left work. Kyzar stated that he provided that information only because an officer asked for it. Kyzar obtained that information from Barbaro, and he testified that Barbaro knew about his tip to law enforcement. An officer told Kyzar about Smith's arrest on the day it happened, and Kyzar immediately informed Barbaro.

         ¶26. Kyzar denied that he planted drugs in Smith's truck or helped Barbaro create a false drug test result for Will. Kyzar claimed that he had never been to Barbaro's house prior to Will's positive drug test. Kyzar testified that he was a home health nurse, and he admitted that he does have some access to patients' drugs. Much of Kyzar's testimony was rambling, contradictory, and difficult to follow.

         ¶27. After Kyzar testified, Barbaro testified again. In contrast to her testimony at the hearing a few weeks earlier, Barbaro testified that Will was "agitated," "restless," and "very fussy" when Smith returned him to her on May 15. Barbaro testified that Will became "very lethargic" and even "passed out" after they left Capital DNA. She testified that Will looked different than he did in the photographs taken of him only fifteen to twenty minutes prior to the custody exchange.

         ¶28. Barbaro testified that Will could not provide a urine sample while they were at Capital DNA on May 15. She testified that they left Capital DNA with Will still wearing the urine collection bag and that there was a sample in the bag when they returned home. Barbaro testified that she poured the sample into a cup. She left the cup on her counter overnight and returned it to Brandy Jones the following morning.[4]

         ¶29. Barbaro testified that she first contacted Kyzar to ask whether he had ever seen Mitchell neglect Will. She and Kyzar then "vented" about Smith and Mitchell. Barbaro told Kyzar about Smith's prior drug use, and Kyzar asked why she had not reported Smith or pursued drug testing. Barbaro told Kyzar that Smith had refused drug tests in the past, and she did not think that reporting him would do any good. She told Kyzar that Brandy Jones had said that she could have Will tested, which might indicate that Smith was doing drugs in Will's presence.

         ¶30. According to Barbaro, Kyzar said that he would ask a police officer he knew for advice, and Kyzar later said that the officer wanted to talk to her about Smith. Barbaro testified that she told Kyzar that she did not want to be involved and declined to talk to the officer. Kyzar later told her that he could talk to the officer for her. Barbaro then provided Kyzar with Smith's address and vehicle information. According to Barbaro, Kyzar said that the officer only wanted to keep an eye out for Smith in case he was driving under the influence. Barbaro acknowledged that she and Kyzar discussed Smith's arrest on the day it occurred. However, Barbaro said that she learned of the arrest from Smith's stepmother, Renee Smith. Barbaro claimed that she did not intend to cause Smith to be arrested; she only wanted the police to keep an eye out for him in case he was driving under the influence.

         ¶31. The GAL testified about his investigation. The GAL testified that Barbaro had told him that she returned to Capital DNA with Will's urine sample the evening of Sunday, May 15. That statement conflicted with her testimony in court, which was that she kept the sample in her house overnight and returned it on May 16.[5]

         ¶32. The GAL obtained photographs of Will that Smith's mother (Gail Hopkins) took shortly before Smith returned Will to Barbaro on May 15. The photos show Will smiling, happy, and seemingly normal. Hopkins and Brandy Jones told the GAL that Will did not appear lethargic on May 15.

         ¶33. The GAL investigated the two substances that were allegedly found in Will's urine. The GAL doubted that a child of Will's age and size could receive a significant dose of the drugs and still be playing normally and happily, as shown in photos and described by others who saw him on May 15. The GAL did not believe Barbaro's claim that Will was lethargic, which was contradicted by all other witnesses who saw Will that day.

         ¶34. The GAL interviewed McAlpin and Tatum, and he concluded that McAlpin testified truthfully that he received a very specific tip that certain drugs would be found in the toolbox of Smith's truck. The GAL concluded that Kyzar had a motive to lie-Smith's relationship with Mitchell-and was being untruthful when he testified that he did not provide specific information to law enforcement. The GAL also concluded that Barbaro was being untruthful when she claimed that she did not know about the nature of Kyzar's tips to law enforcement. The GAL interviewed Barbaro for approximately two and a half hours and asked repeatedly whether she knew anything about the circumstances of Smith's arrest, but Barbaro never mentioned that Kyzar had provided any information to law enforcement.

         ¶35. The GAL concluded that Barbaro was involved in tampering with Will's drug test and planting drugs in Smith's truck. The GAL also concluded that it was in Will's best interest to grant Smith custody and restrict Barbaro's visitation.

         ¶36. The hearing on the GAL's motion did not conclude on the first day. Nonetheless, at the end of the first day, the chancellor reinstated Smith's summer visitation, which he had previously suspended in response to Barbaro's emergency motion. The ...

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