2026 – Tenn Do you know your evidence – DCS 

By Connie Reguli, J.D.

Challenging Drug Test Reports in Tennessee Child Welfare Cases

(Tenn. R. Evid. 801, 802, 803(6), 902(11), 702, 703; records “prepared with litigation in mind”)

In Tennessee dependency and termination cases, drug testing evidence often comes in through laboratory reports and agency forms that are treated as conclusive “science.” These documents are hearsay and must satisfy the Tennessee Rules of Evidence. This article summarizes the current Tennessee authority so practitioners (and informed parents) can check for changes as case law develops. Note: This op ed is written with references to Tennessee law, if you are in another state, you should check on how to address these same questions.  Rules of evidence are similar across state boundaries and mostly follow Federal Rules of Evidence.  Use caution. 

I. Preservation: contemporaneous objection and waiver

Key authorities: Tenn. R. Evid. 103(a)(1); In re Mason E., No. E2015‑01256‑COA‑R3‑JV (Tenn. Ct. App. May 16, 2016); In re Envy J., No. W2015‑01197‑COA‑R3‑PT (Tenn. Ct. App. Sept. 22, 2016)

  • Tenn. R. Evid. 103(a)(1) requires a timely objection “stating the specific ground of objection, if the specific ground was not apparent from the context.”
  • Tennessee appellate courts in juvenile and termination cases consistently hold that a party cannot obtain relief on appeal for an error it did not object to at trial. In dependency and termination contexts, parents who fail to object to the admission of hearsay evidence generally waive the issue for appellate review.

Illustrative language (In re Mason E.):

  • The court stressed that parties must make contemporaneous objections to hearsay at the time the evidence is offered; failure to do so prevents later challenge to admissibility.

Practice point: When DCS or the State offers a drug test report, counsel should immediately:

  1. Object on the ground of hearsay (Tenn. R. Evid. 801(c), 802).
  2. Demand that the proponent identify the specific exception relied upon (usually Tenn. R. Evid. 803(6) and 902(11)).
  3. State, on the record, each way the exhibit fails to satisfy the exception.

II. Hearsay definition and default rule of exclusion

Key authorities: Tenn. R. Evid. 801(c), 802; In re Mason E., No. E2015‑01256‑COA‑R3‑JV (Tenn. Ct. App. May 16, 2016)

Tenn. R. Evid. 802: “Hearsay is not admissible except as provided by these rules or otherwise by law.”

Tenn. R. Evid. 801(c): “Hearsay” means “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

A laboratory report that asserts “positive” or quantifies a drug level in a child’s specimen is a statement offered to prove the truth of the matter asserted (that the child’s specimen contained a particular substance at a particular level). In a juvenile case, the Court of Appeals recognized that children’s drug test results are hearsay and must fit an exception such as Tenn. R. Evid. 803(6) to be admissible.

Key phrase to research in the future: “children’s drug test results are hearsay” + “In re Mason E.” + “Tenn. R. Evid. 803(6).”

III. Tenn. R. Evid. 803(6): business records exception and the five elements

Key authorities: Tenn. R. Evid. 803(6); Advisory Commission Comment; In re Mason E.; Tennessee practice

Tenn. R. Evid. 803(6) (Records of Regularly Conducted Activity) requires that:

  1. The record was made at or near the time of the act, event, condition, opinion, or diagnosis.
  2. The record was made by, or from information transmitted by, a person with knowledge.
  3. The person providing the information had a business duty to record or transmit the information.
  4. The record was kept in the course of a regularly conducted business activity, and it was the regular practice of that business activity to make such a record.
  5. “The manner in which the information was provided or the document was prepared must not indicate that the document lacks trustworthiness.”

The Advisory Commission Comment notes that without a business duty, the record “would lack the trustworthiness necessary to carve out a hearsay exception.” Tennessee practitioners summarize these as the “five 803(6) elements” and apply them to agency and DCS records.

In juvenile and termination matters, courts treat these as mandatory; the proponent must establish all five, including the trustworthiness component, and the trial court may exclude a record if its source, method, or circumstances of preparation indicate unreliability.

Key phrases: “business duty,” “regularly conducted activity,” “regular practice,” “lacks trustworthiness,” “Tenn. R. Evid. 803(6).”

IV. Tenn. R. Evid. 902(11): self‑authentication by affidavit

Key authorities: Tenn. R. Evid. 902(11); In re Gracie H.Y., No. M2019‑00639‑COA‑R3‑PT (Tenn. Ct. App. Mar. 16, 2020)

Tenn. R. Evid. 902(11) allows business records to be self‑authenticated by a custodian’s affidavit if the affidavit certifies that:

  • The record was made at or near the time by, or from information transmitted by, a person with knowledge and a business duty to record or transmit;
  • The record was kept in the course of a regularly conducted activity; and
  • The record was made by the regularly conducted activity as a regular practice.

In In re Gracie H.Y., the Court of Appeals discussed Rule 902(11) in the context of juvenile proceedings and indicated that the affidavit must track the substantive requirements of 803(6); self‑authentication does not eliminate the need to satisfy each business‑records element.

Key point: An affidavit that is silent on “regularly conducted activity” or “regular practice” is defective under 902(11), and even a facially compliant affidavit does not override the court’s duty under 803(6) to evaluate trustworthiness.

Key phrases: “self‑authenticating business records,” “Tenn. R. Evid. 902(11),” “regularly conducted activity,” “regular practice.”

V. Litigation‑driven records: “extraordinary report…prepared with litigation in mind”

Key authorities: Tenn. R. Evid. 803(6); LVNV Funding, LLC v. Mastaw, No. M2011‑00990‑COA‑R3‑CV, 2012 Tenn. App. LEXIS 282 (Tenn. Ct. App. Apr. 30, 2012) (quoted in Tennessee commentary)

Tennessee commentary applying LVNV Funding, LLC v. Mastaw to Rule 803(6) notes:

“An extraordinary report prepared for an irregular purpose, particularly when prepared with litigation in mind, may not be made in the regular course of business and may be inadmissible as a business record under Tenn. R. Evid. 803(6).”

“Documents prepared specifically for the subject litigation are properly excluded because of motivational concerns arising from the fact that they were generated for litigation purposes, as opposed to records generated for business purposes.”

This language directly addresses litigation‑driven records. It ties back to the fifth 803(6) element: “the manner in which the information was provided or the document was prepared” must not indicate a lack of trustworthiness.

Applied to child welfare drug tests.

When a lab conducts hair or urine testing at the request of DCS in the context of an investigation or termination strategy, with full awareness that the report will be used to support or refute allegations of parental misconduct, the report can be characterized as an “extraordinary report prepared for an irregular purpose…with litigation in mind,” rather than a routine business record.

Key phrases to flag for future research:
“extraordinary report,” “irregular purpose,” “with litigation in mind,” “motivational concerns,” “LVNV Funding v. Mastaw,” “Tenn. R. Evid. 803(6) trustworthiness.”

VI. Distinguishing business records from expert testimony

Key authorities: Tenn. R. Evid. 702, 703; In re Mason E., No. E2015‑01256‑COA‑R3‑JV (Tenn. Ct. App. May 16, 2016)

Tenn. R. Evid. 702 provides:

“If scientific, technical, or other specialized knowledge will substantially assist the trier of fact…, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.”

Tenn. R. Evid. 703 requires that the underlying facts or data relied upon by an expert be of a type reasonably relied upon by experts and allows the court to exclude opinions where “the underlying facts or data indicate lack of trustworthiness.”

In In re Mason E., the Court of Appeals discussed drug test business records and noted that while test results admitted under 803(6) provide evidence, “the interpretation of the test results requires expert testimony” under Rule 702 when scientific, technical, or specialized knowledge is necessary to assist the trier of fact.

Applied to lab reports:

  • The raw data (that a specimen was received and tested, producing a numerical concentration) may qualify as a business record if 803(6) is satisfied.
  • The conclusions (e.g., that the child was “exposed” to illegal drugs, that a parent is responsible, that there was “abuse” or “neglect”) are expert opinions that must comply with Tenn. R. Evid. 702 and 703, including expert qualification, reliability, and cross‑examination.

Key argument: The State cannot use 803(6) and 902(11) to introduce complex forensic opinions and thereby avoid the safeguards of 702/703; this is tantamount to “smuggling expert medical conclusions into evidence through the back door” of the business‑records exception.

Key phrases: “interpretation of test results requires expert testimony,” “Tenn. R. Evid. 702,” “Tenn. R. Evid. 703,” “smuggle expert conclusions,” “business record vs. expert opinion.”

VII. Scientific reliability and admissibility

Key authorities: Tenn. R. Evid. 702, 703; McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997); Tennessee CLE materials on expert.

Tennessee courts apply the McDaniel factors to scientific evidence under Rule 702, considering:

  • Whether the evidence has been tested;
  • Whether the technique has been subject to peer review and publication;
  • The known or potential rate of error;
  • The existence and maintenance of standards controlling the technique’s operation; and
  • General acceptance in the relevant scientific community.

Drug test reports are susceptible to challenge where:

  • There is no confirmatory testing (e.g., no GC/MS);
  • The length of hair and corresponding exposure period are not specified;
  • Collection procedures and chain of custody are unclear;
  • No analyst appears to explain potential environmental contamination, alternative exposure sources, or error rates.

Key phrases: “McDaniel factors,” “known or potential rate of error,” “no confirmatory testing,” “chain of custody,” “Tenn. R. Evid. 702/703 reliability.”

VIII. Relevance and probative value

Key authorities: Tenn. R. Evid. 401, 402; State v. Ferrell, 277 S.W.3d 372 (Tenn. 2009)

  • Tenn. R. Evid. 401: “Relevant evidence” has “any tendency to make the existence of any fact that is of consequence…more probable or less probable.”
  • Tenn. R. Evid. 402: Irrelevant evidence is not admissible.
  • In State v. Ferrell, the Tennessee Supreme Court reiterated that relevance is a threshold requirement: evidence must relate to a material fact in dispute to be admissible.

In child welfare cases, positive tests from children who have been in the custody of third parties, under protective orders, or outside the parent’s care for extended periods may have minimal relevance to the parent’s alleged abuse, neglect, or failure to supervise.

Key phrases: “Tenn. R. Evid. 401,” “Tenn. R. Evid. 402,” “probative value,” “remoteness,” “no nexus to parental conduct.”

IX. Putting it together in practice

For Tennessee practitioners evaluating whether to challenge drug test reports, the key doctrinal tags to track (and re‑check as law evolves) are:

  • Hearsay framework: Tenn. R. Evid. 801(c), 802; In re Mason E.; In re Envy J.
  • Business records exception: Tenn. R. Evid. 803(6); Advisory Commission Comment; five elements including “trustworthiness.”
  • Self‑authentication: Tenn. R. Evid. 902(11); In re Gracie H.Y.
  • Litigation‑driven records: LVNV Funding, LLC v. Mastaw; “extraordinary report prepared for an irregular purpose…with litigation in mind,” “motivational concerns.”
  • Expert interpretation: Tenn. R. Evid. 702, 703; In re Mason E. (“interpretation of the test results requires expert testimony”).
  • Reliability: McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997); confirmatory testing; error rates.
  • Relevance: Tenn. R. Evid. 401, 402; State v. Ferrell, 277 S.W.3d 372 (Tenn. 2009).

Each of those rules and cases is a research hook. If Tennessee law shifts, new decisions will likely cite or distinguish these authorities. Keeping the key phrases—“with litigation in mind,” “extraordinary report,” “trustworthiness,” “interpretation requires expert testimony”—in your notes will make it easier to update this analysis over time.

Tennessee Child Welfare Drug Test Evidence

Parent Checklist to Discuss with Your Attorney

Use this sheet to talk with your lawyer before any hearing where drug test reports might be used against you.

1. Did we object on the record?

Ask your attorney:

  • Have you made a timely, specific objection when DCS tried to introduce any drug test report?
    • Cite: Tenn. R. Evid. 103(a)(1) (timely objection, specific ground).
  • Do you plan to say clearly that the report is hearsay under:
    • Tenn. R. Evid. 801(c) (definition of hearsay)
    • Tenn. R. Evid. 802 (hearsay not admissible unless an exception applies)

Why it matters:

  • Tennessee cases (for example In re Mason E., No. E2015‑01256‑COA‑R3‑JV; In re Envy J., No. W2015‑01197‑COA‑R3‑PT) say that if you don’t object at the hearing, you usually lose the right to complain about the evidence on appeal.

2. What hearsay exception is the State using?

Questions for your attorney:

  • When DCS offers the lab report, will you insist they identify the exact rule they rely on?
    • Most often: Tenn. R. Evid. 803(6) (business records) and 902(11) (self‑authenticating business records).

Key point:

  • Your lawyer should not let the report in just because “it’s from a lab.” The agency must show it fits a specific exception.

3. Does the drug test really qualify as a “business record”? (Rule 803(6))

Ask your attorney to go through the five elements of Tenn. R. Evid. 803(6):

  1. Was the record made at or near the time of the test?
  2. Was the information recorded by someone with personal knowledge?
  3. Did that person have a business duty to record or transmit the information?
  4. Is it the lab’s regular practice to make this kind of record as part of its normal business?
  5. Do the method and circumstances of the report show that it is trustworthy, as required by Rule 803(6)?

Cites to give your attorney:

  • Tenn. R. Evid. 803(6) and Advisory Commission Comment (trustworthiness requirement).
  • Tennessee practice materials and cases discussing the five 803(6) elements (e.g., In re Mason E.).

4. Is this an “extraordinary report…prepared with litigation in mind”?

This is a powerful Tennessee phrase.

Ask your attorney:

  • Can we argue that this lab report is an “extraordinary report prepared for an irregular purpose, particularly when prepared with litigation in mind” and therefore not a true business record under Tenn. R. Evid. 803(6)?
  • Was the test ordered by DCS after removal or during an investigation mainly to build a case (not to treat the child medically)?

Cite and key language:

  • Tennessee authority applying LVNV Funding, LLC v. Mastaw, No. M2011‑00990‑COA‑R3‑CV, 2012 Tenn. App. LEXIS 282 (Tenn. Ct. App. Apr. 30, 2012):
    • “An extraordinary report prepared for an irregular purpose, particularly when prepared with litigation in mind, may not be made in the regular course of business and may be inadmissible as a business record under Tenn. R. Evid. 803(6).”
    • “Documents prepared specifically for the subject litigation are properly excluded because of motivational concerns….”

Talking point:

  • “This looks like a litigation‑driven forensic report, not a neutral record the lab keeps for its own internal business purposes.”

5. Does the custodian affidavit (Rule 902(11)) really meet the rule?

If there’s a custodian of records affidavit attached:

Ask:

  • Does the affidavit actually state that the records were:
    • Made by or from information transmitted by a person with knowledge and a business duty?
    • Kept in the course of a regularly conducted activity?
    • Made as a regular practice of that activity?

Cites:

  • Tenn. R. Evid. 902(11) (self‑authenticating business records).
  • In re Gracie H.Y., No. M2019‑00639‑COA‑R3‑PT (juvenile/termination context; affidavit must track 803(6)).

Key point:

  • A “cookie‑cutter” affidavit that doesn’t say “kept in the course of regularly conducted activity” and “made as a regular practice” is not enough.

6. Are they trying to sneak in expert opinions through the business‑records rule?

Big distinction to press:

  • Raw data vs. expert opinion.

Ask your attorney:

  • Can we concede that the report shows only: “A sample was collected and produced X number on Y date,” but object to any claim that:
    • The child was “exposed” to illegal drugs,
    • The parent “abused” or “neglected” the child, or
    • The parent is responsible for the positive test?

Cites:

  • Tenn. R. Evid. 702 – expert testimony required when scientific or technical knowledge is needed.
  • Tenn. R. Evid. 703 – expert opinion must be based on trustworthy data, and the court can exclude if the data is unreliable.
  • In re Mason E., No. E2015‑01256‑COA‑R3‑JV – recognizes that interpretation of test results requires expert testimony under Rule 702, not just admission as a business record.

Talking point:

  • “They are trying to smuggle expert medical conclusions into evidence through Rule 803(6), instead of calling a real expert who can be cross‑examined.”

7. Is the science solid? (Reliability)

Ask your attorney to look for these red flags:

  • No confirmatory testing (e.g., no GC/MS).
  • No statement of hair length or time window for exposure.
  • Vague or missing chain‑of‑custody details.
  • No explanation of error rate, contamination, or alternative exposure sources.

Cites and concepts:

  • Tenn. R. Evid. 702, 703 (reliability).
  • McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997) – Tennessee’s leading case on scientific‑evidence reliability (testing, peer review, error rate, standards, general acceptance).

Key phrase:

  • “Under McDaniel and Rules 702–703, the court must ensure the scientific method is reliable; this report doesn’t meet that standard.”

8. Does the test really tell us anything about the parent? (Relevance)

Ask:

  • Where were the children living at the time of the alleged exposure?
  • Were there no‑contact orders in place?
  • Could other caregivers (relatives, foster parents, others) be the source of the exposure?

Cites:

  • Tenn. R. Evid. 401 – relevant evidence must relate to a fact “of consequence.”
  • Tenn. R. Evid. 402 – irrelevant evidence is not admissible.
  • State v. Ferrell, 277 S.W.3d 372 (Tenn. 2009) – confirms basic relevance principles.

Talking point:

  • “Even if the test is accurate, it doesn’t connect to my actual care of the children; it may be irrelevant or only minimally probative.”

9. Summary: Points to raise with your lawyer

Hand this list to your attorney and ask:

  1. Will you object when drug test reports are offered (Rule 103, 801, 802)?
  2. Can we challenge the reports under Rule 803(6) using:
    • lack of business duty, no regular practice, and especially lack of trustworthiness?
  3. Can we argue the report is an “extraordinary report prepared…with litigation in mind” under Tennessee authority?
  4. Does the 902(11) affidavit actually meet the rule?
  5. Will you insist that any interpretation of the results come from a qualified expert under Rules 702–703, not just from the paper record?
  6. Can we challenge scientific reliability (McDaniel factors) and relevance (Rules 401–402)?

You can tell your attorney:
“I know the law may change, but I want us to check these specific rules and cases—Tenn. R. Evid. 803(6), 902(11), 702, 703, 401, 402, In re Mason E., LVNV Funding v. Mastaw, McDaniel, State v. Ferrell—to make sure these lab reports are not just accepted without a fight.”

BE READY WITH OBJECTIONS

1. OBJECTION – ADMISSIBILITY OF DRUG LAB REPORTS 

“Your Honor, we object to the admission of this drug test report as hearsay under Tennessee Rules of Evidence 801(c) and 802 and specifically challenge the State’s reliance on the business‑records exception in Rule 803(6) and self‑authentication under Rule 902(11). The report is an extraordinary, litigation‑driven document prepared at the behest of the Department for purposes of this case, rather than a routine record made in the regular course of the lab’s business, and Tennessee authority recognizes that such ‘extraordinary report[s] prepared for an irregular purpose, particularly when prepared with litigation in mind,’ may be inadmissible as business records because the manner of preparation indicates a lack of trustworthiness under Rule 803(6). See, e.g., LVNV Funding, LLC v. Mastaw, No. M2011‑00990‑COA‑R3‑CV, 2012 Tenn. App. LEXIS 282 (Tenn. Ct. App. Apr. 30, 2012). Furthermore, even if the raw fact that a test was run could be considered a business record, the State is attempting to smuggle in expert medical and causation conclusions—that the child was exposed to illegal drugs and that the parent is responsible—without presenting a qualified expert as required by Rules 702 and 703 and as contemplated by cases such as In re Mason E., No. E2015‑01256‑COA‑R3‑JV (Tenn. Ct. App. May 16, 2016), which recognize that the interpretation of test results requires expert testimony. For these reasons, we object to admission of the report in its entirety; at a minimum, we request that it be limited to non‑interpretive entries documenting only that a specimen was received and processed, and that any purported conclusions about exposure, abuse, neglect, or parental fault be excluded.”

2. OBJECTION – RELEVANCE – SPACE AND TIME 

“Your Honor, in addition to our hearsay and business‑records objections, we object on the grounds of relevance under Tennessee Rules of Evidence 401 and 402 and on the basis that the report fails to link any alleged exposure to a time when this parent had custody or control of the child. Relevant evidence must have a tendency to make a fact of consequence more or less probable, Tenn. R. Evid. 401, and irrelevant evidence is inadmissible, Tenn. R. Evid. 402. This lab report does not identify the length of the hair sample, the time window of possible exposure, or any scientifically reliable period to which the result can be tied, nor does it account for other caregivers or environments during the relevant time. Without a reliable indication of when any exposure allegedly occurred, the report does not tend to prove or disprove that this parent abused, neglected, or failed to supervise the child, and any inference to that effect would be pure speculation. Accordingly, because the report cannot show a period of exposure that is temporally connected to the parent’s actual care, custody, or control, it lacks the requisite relevance and should be excluded, or at minimum given no weight as substantive evidence of parental misconduct.”

Connie Reguli, J.D. 

Family Forward Project

Tennessee

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