TAMARA A. BARBARO APPELLANT
COTY A. SMITH APPELLEE
OF JUDGMENT: 01/25/2017
ROBERTS COURT FROM WHICH APPEALED: RANKIN COUNTY CHANCERY
COURT HON. HAYDN JUDD TRIAL JUDGE
ATTORNEYS FOR APPELLANT: JEFFREY BIRL RIMES SARAH LINDSEY OTT
ATTORNEY FOR APPELLEE: JOSHUA CECIL McCRORY
CARLTON AND J. WILSON, P.JJ., AND TINDELL, J.
Pursuant to an agreed judgment, Tamara Barbaro was granted
physical custody of her son, Will,  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
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.
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.
AND PROCEDURAL HISTORY
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.
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
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.
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.
on Barbaro's Emergency Motion
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.
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.
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
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
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.
on GAL's Emergency Motion
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
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.
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
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
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.
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.
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.
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
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.
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.
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.Kyzar also testified that Barbaro contacted
him to ask whether he had ever seen Mitchell neglect Will or
any other children in her care.
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 after Barbaro told him that Will had
tested positive for drugs.
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.
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
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
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
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.
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.
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.
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.
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.
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.
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
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 ...