MECKLENBURG COUNTY, N.C. (QUEEN CITY NEWS) — The custody battle over a Charlotte toddler continues as his mother and father walked into another hearing in the case Thursday in Charlotte. The mother, Jacque Kent, was hoping a judge would once again grant her temporary custody of her 3-year-old son.

Kent lost custody of her son, Roman, on April 22 after Mecklenburg County District Court Judge Sean Smith jailed her on criminal contempt of court charges. For the past year, Kent refused to allow her ex-boyfriend, Joshua Graham, court-ordered visits with his son.

Kent said she did so over her concerns that Graham was continuing to abuse drugs and alcohol.

Judge Sean Smith jailed Jacque Kent in April 2022 after finding her in criminal contempt of court. Kent would not allow her ex-boyfriend court-ordered visitation after Kent claimed her ex-boyfriend continued to abuse drugs and alcohol and had become violent. (Source: Mecklenburg County Detention Center)

Judge Smith sentenced Kent to 60 days in the county jail in April and then awarded temporary sole custody of the couple’s child to Graham. Smith banned all in-person visitation for Kent. Kent spent two days in jail before bonding out on the $50,000 bond Smith ordered her to pay.

Once freed, Kent hired a private investigator to track Graham. In mid-June, the investigator followed Graham from his job site near Cornelius to a grocery store parking lot. The PI video recorded Graham smoking something in a pipe. Graham later admitted under oath he was smoking “either marijuana or CBD.”

A hair follicle drug test Graham took six days later showed elevated levels of marijuana.

Judge Smith held a hearing on July 1 where Graham admitted to using marijuana, but he testified he never used around his son. Smith, citing concerns over Kent’s past violations of the court’s visitation order, allowed Graham to retain temporary custody of his son while the case continues. Smith signed an order on July 1 allowing Kent nine hours of visitation over the next couple of weeks.

The order did not require Graham to submit to any additional drug testing despite Kent’s attorney requesting the testing and Smith agreeing to order it during the July 1 hearing.

But, Smith removed himself from the case on July 13 after Queen City News Chief Investigator Jody Barr submitted a list of allegations we planned to report that Kent made against Smith, including an allegation Kent made that Smith – and Judge Gary Henderson, the initial judge in the case – were retaliating against Kent and not protecting her son from potential harm.

On July 13, Kent received the results of a hair follicle drug test she had a Huntersville lab perform on her son during one of the visits Judge Smith approved for Kent following the July 1 hearing. The test is indicated as an “exposure” test on the invoice the lab sent Kent.

The test is trademarked as ‘ChildGuard,’ a new test specifically designed to detect drug chemicals showing whether a child has been exposed to drugs or to a drug user. The results showed her son had elevated levels of marijuana in his hair sample collected by a Huntersville laboratory on July 7. The ‘ChildGuard’ test is different from a typical hair follicle test, according to the United States Drug Testing Laboratory website.

“ChildGuard is the only drug test designed to detect passive exposure to drugs, distinguishing between both native drugs and drug metabolites in hair specimens. Drug metabolites are produced in the body only if drugs have been ingested. Children in drug-exposed environments are most often not drug users themselves, so drug metabolites are typically absent when a child is being tested for drug exposure,” the USDTL site shows.

Mecklenburg County District Court Judge Paige B. McThenia would not allow any of the drug test evidence presented in the case into evidence during a July 27, 2022 hearing. McThenia did not detail her reasons, despite testimony from the clinical director of the lab that tested Roman Kent’s hair sample that came back positive for marijuana exposure.

“Typical hair tests with other labs will only report a positive exposure result if drug metabolites are detected, even when the native drug is in the child’s hair specimen. ChildGuard reports a positive result if either native drugs or drug metabolites are detected, giving much better insight about the child’s environment. ChildGuard can provide evidence of substance use in a child’s environment for the past 3 months and can be performed on donors of any age,” according to the ChildGuard site.

On July 15, Kent’s attorney, Anastasia Cowan, filed an emergency motion asking the court to remove the toddler from his father’s home. Judge Paige McThenia, who took the case over after Judge Smith’s recusal, signed an order returning the child to Jacque Kent under a temporary custody order.

Just before Graham was set to turn his son over to Kent, he took his son for a drug test. On July 20, the lab sent Graham the results showing no detectable levels of marijuana in his hair sample. Graham’s attorney, Steve DeCillis, filed an emergency custody motion claiming Kent’s positive test was a “false hair follicle” test, but DeCillis did not detail exactly what he meant by that and he did not offer any explanation in the order.

Mecklenburg County Sheriff’s Office booking records show Joshua Graham was arrested three times on charges he violated a domestic violence protective order in 2020. (Source: Mecklenburg County Detention Center)

DeCillis also would not explain his allegation concerning the positive drug test when we found him outside the courthouse after the hearing. “Everything I have to say I’ll say it in court,” DeCillis told Barr. “Can you tell us what you were arguing, specifically, that was false about the hair follicle test on Roman Kent?” Barr asked.

“Everything I have to say I say in the courtroom, thank you,” DeCillis said before walking toward the courthouse parking garage. Joshua Graham also did not respond when asked if he ever exposed his son to marijuana. DeCillis’ July 22 motions state that Graham “vehemently” denies doing so.

One week after awarding Kent sole temporary custody on July 15, Judge Paige McThenia signed another emergency order on July 22, removing Roman Kent from his mother’s home and ordering him back into his father’s custody.

McThenia scheduled a hearing for July 27.

The judge told Graham and Kent that her only “job” in the hearing was to determine whether a risk to the child’s health and safety exists while in Graham’s care. Kent’s side called Lennon Maye, the Clinical Lab Director of the Any Drug Test Lab Now in Huntersville, to the stand to testify. The judge swore Maye in as an expert witness.

Maye said he had more than 20 years of experience in the drug testing industry as a clinical director.

The clinical director of this Huntersville drug testing laboratory told the judge in a July 27 hearing that he was the one who cut the hair sample from the toddler’s head and shipped it off to be analyzed by a national drug testing lab. The director testified the positive drug test result Jacque Kent presented to the court was the true result returned from the diagnostic center. (WJZY Photo/Jody Barr)

Maye told the judge he was the one who clipped the hair sample from the child’s head, packaged it, then sent it off to a Quest Diagnostics laboratory for analysis. Maye said he completed the custody and control form and entered the information the diagnostic lab needed to track the sample and return the results to Huntersville.

Maye testified that the results showing the toddler was positive for marijuana exposure were the results sent to him by the diagnostic lab that performed the analysis of the child’s hair sample. Graham’s attorney objected to testimony Maye offered to show the test Kent ordered was the ChildGuard test. DeCillis objected, arguing that since Maye did not perform the test he had no expertise to testify about the diagnostic end of the process.

Maye did explain that the exposure test would detect lower levels of drug particles that a typical hair follicle test could not detect.

DeCillis did not offer any witnesses to testify about the drug test Graham ordered for his son on July 15. DeCillis spent his 30 minutes of court time showing the judge photographs and videos of Graham playing with his son. DeCillis and Cowan stood behind Graham as he sat on the witness stand and Judge McThenia looked at the laptop DeCillis held in his hands.

At 11:14 a.m., Judge Sean Smith walked through the public entrance of McThenia’s courtroom and took a seat in the audience at a row of benches reserved for attorneys. Smith, who filed a formal recusal order just three days earlier, sat in the courtroom scrolling on his cell phone and watched the hearing. At 11:30 a.m., Smith got up and walked out of the courtroom through Judge McThenia’s secured chambers door.

Kent never saw Judge Smith in the courtroom and didn’t know he’d made an appearance until we asked her about it following the July 27 hearing.

“I was not aware of that, no. And that should tell the public everything. For him to be in there, there’s no reason for him to be in there,” Kent said. “Do you think his presence in that courtroom could have some bearing on a colleague sitting on the bench in this case?” Queen City News Chief Investigator Jody Barr asked Kent.

“100 percent and there is no doubt in my mind, and I think that’s exactly why he did it,” Kent responded.

Smith would not answer when we questioned him through email about his purpose for attending the hearing and whether his presence in the courtroom might have had an influence on a judge who was in the midst of making a judicial decision on an order Smith handed down weeks earlier.

Judge Sean Smith would not answer any questions concerning his attendance in the July 27, 2022 hearing – three days after he filed a formal recusal order in the case voluntarily removing himself from the Graham v. Kent matter.

“I have recused myself and I have no further involvement in this case.  Thank you,” Smith wrote to Barr in a July 28 email response.

Smith, citing judicial ethics barring a judge from discussing pending litigation, also did not answer questions as to whether he’s ever discussed the Graham v. Kent case, or his opinions of the case, with Judge McThenia or anyone who might have passed messages from Smith to McThenia.

After testimony ended, McThenia announced she would not allow any of the drug testing evidence into the record. The judge did not state why she’d made that decision. The judge also said she was reverting back to Judge Sean Smith’s April 22, 2022, temporary custody order he signed after ordering Jacque Kent to jail.

That order prevents any in-person visitation between Kent and her son and grants Joshua Graham full, sole temporary custody. The judge did not announce a date for the next hearing, which means Kent can only see her son once a week for 10-minute FaceTime calls until Judge McThenia orders a change.

We contacted the North Carolina Judicial Standards Commission to ask whether the commission has rules or guidelines that would address a judge’s appearance in a courtroom where a fellow judge was deciding the recused judge’s orders following a recusal. The commission would not offer an analysis of whether this scenario was proper.

The 13-member commission, of which 70 percent of its members are judges and attorneys, is charged with investigating complaints and recommending discipline of North Carolina’s district, superior, and appellate court judges and justices. “The Commission also serves as the judicial ethics advisory committee with respect to the Code of Judicial Conduct and is authorized to provide formal and informal advisory opinions regarding application of the Code to specific situations,” according to the commission’s website.

“Given the complexity of our judicial system, we are not able to provide responses to hypothetical situations or scenarios. The Judicial Branch does comment on cases that could come before the courts; pending cases, litigation, and / or investigations; final rules and opinions; matters pending or concluded before the Judicial Standards Commission.”

North Carolina Judicial Branch spokesman Charles Keller, Jr. wrote to Queen City News in a July 29th email response.

State law bans anyone – even the public – from disclosing a complaint filed with the commission or any documentation received from the commission following a formal complaint alleging misconduct against a judge.

Commission records are only made public under the rare instance of a finding of misconduct and disciplinary action of an NC judge, “Upon the public reprimand, censure, suspension, or removal of a judge by the Supreme Court in a disciplinary or disability proceeding, the pleadings, the Commission’s recommendation, and the record filed in support of the recommendation are no longer confidential. All other documents and information relating to the complaint, investigation, and disciplinary or disability proceeding shall remain confidential,” Judicial Standards Commission Rule 6 states.