L.W. v. Children’s Aid Society of Northumberland, 2008 CFSRB 103

CHILD AND FAMILY SERVICES REVIEW BOARD

L.W.

v.

Children’s Aid Society of Northumberland

REASONS FOR DECISION ON MERITS

Date: December 22, 2008

Citation: 2008 CFSRB 103

Indexed as: L.W. v. CAS of Northumberland (CFSA s.68)

Related Decisions: Reasons for Decision on Jurisdiction - L.W. v. CAS of Northumberland (CFSA s.68), 2008 CFSRB 81

1L.W. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) against the Children’s Aid Society of Northumberland (the “Society”) on April 8, 2008. She alleges that the Society did not listen to her child protection concerns and her complaints about the behaviour of child protection workers. She alleges that the Society is biased in favour of her former partner and did not give reasons for her limited access to her daughter.

2The Society’s position is that many of the issues have been before the Court and that reasons have been given to the Applicant in affidavits submitted to the Court. In addition, the Society has participated in other proceedings with the Applicant during which reasons were given to her. The Society submits that the Applicant does not agree with the reasons given to her.

3The Board conducted a jurisdictional hearing on July 30, 2008 and determined that it had the jurisdiction to hear the Applicant’s complaints under subsections 68.1 (4) (4) and (5) of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”) which state that:

Matters for Board review

68.1 (4) The following matters may be reviewed by the Board under this section:

4. Allegations that the society has failed to comply with clause 2 (2) (a).

5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

4This is the Board’s decision on the merits of the application.

BACKGROUND

5The Applicant is the biological mother of S.L.W., d.o.b. April […], 2007. The child was born with a dependence on oxycontin at the [ ] Hospital where she was placed in the neo-natal unit. The Applicant was seriously injured in a car accident on May […], 2001, resulting in severe chronic pain for which she was prescribed oxycontin by Dr. P.S.. She was advised by her doctor that to terminate her use of oxycontin during her pregnancy could be harmful to the child.

6On October […], 2007, a supervision order was issued with the consent of both parents placing S.L.W. in the care of her father, S.W.. The Applicant had supervised access on the condition that she refrain from the use of any unprescribed medication and that she only take medication prescribed by her family physician, Dr. P.S.. On January […], 2008, the parents agreed that the Applicant have S.L.W. in her care for access during the week from 6:00 pm Monday until 6:00 pm Friday while the father worked. On January […], 2008, S.L.W. was removed from her access visit due to concerns for her safety. On February […], 2008, the Society sought an Early Status Review and asked for supervised access two times a week for the Applicant.

7S.L.W. was apprehended from S.W. in May of 2008 and returned to his care shortly after. She was again apprehended in September of 2008 and is currently in the care of a foster parent.

ANALYSIS

Issue 1: Refusal of the Society to investigate child protection concerns.

8The Applicant testified that she made many complaints to the Society that S.W., who had care of her daughter, was in fact the drug user and that she only used prescription drugs. On April […], 2008, she reported drug use by S.W. and his friend, H., on the porch. She alleges that I.C. took her call, did not listen to her and did not investigate her child protection concerns.

9In May, the Applicant reported two incidents of bruising that she noted on her daughter. She reported one incident on May […], 2008 and another incident on May […], 2008. Between May […] and May […], the Society refused to listen to her. The Society finally investigated on May […], 2008.

10T.C., Director of Services, testified that in the first incident, I.C. received a report on April […], 2008 that H. was smoking pot on the porch and that S.W. was in the house with S.L.W.. I.C. consulted with the after-hours supervisor. The information was that the caregiver was not using. A determination was made not to investigate immediately and that B.C., the case worker, would follow up later. The call was received on Sunday. B.C. followed up, spoke to S.W. on Wednesday and attended at the house at a later time.

11In the second incident, T.C. testified that after the May […], 2008 report of bruising, B.C. spoke to S. and personnel at W.W.D.. She was not able to determine the cause of the bruising. After the second report of bruising on May […], a joint investigation with the police was conducted and a determination made that the bruising was caused at the daycare. No criminal charges were laid. S. was asked not to use the daycare. S.L.W. was apprehended during the investigation and only returned to the father under strict conditions. According to T.C., the Society did investigate the Applicant’s complaints.

12The Board finds that the Society did listen to the Applicant’s concerns of child safety. In the first incident, I.C. listened to the Applicant’s complaint and sought direction from her supervisor. Given the information, the supervisor made a professional judgement that the situation was not urgent and that the case worker could follow up at another time. B.C. did follow up on the Applicant’s complaint. It is important to note that under section 68 of the Act, the Board’s mandate is to determine whether the Applicant was heard: it is not to make a determination on the quality of the Society’s investigations or the correctness of its decisions.

13Concerning the reports of bruising, the Board finds that the Society listened to the Applicant and investigated the two incidents of bruising. B.C. investigated the first incident and when there was a second report, police were involved and the child was apprehended.

Issue 2: Incident of late access visit.

14The Applicant testified that she was late for an access visit at the Society offices. The taxi had a flat tire and she had to jog part way. She was anxious and took off her shoes while she was running. She called the Society at 10:09 a.m. to let them know that she would be late. The call was received by the Society. However, five minutes after she called, the Society worker was told to leave with S.L.W.. She arrived when the worker was putting her daughter into the car. She took her daughter out of the car and took her back into the building. The Applicant felt that she was badly treated and being punished for filing a formal complaint. She had never been late for a visit before.

15T.C. testified that the Society generally waits fifteen minutes before cancelling a meeting. The appearance of the Applicant was of concern to Society workers. She was calling, dishevelled, and running with no shoes on arrival. They wondered whether it was safe for the child to be with her. She was able to calm down and the visit proceeded without any other issues. T.C. testified that the incident could have been handled better by Society workers. When asked how it could have been handled, she said they could have waited a few more minutes.

16The Board finds that the Applicant has the right to be heard when complaining about a service received from the Society. The Applicant is complaining that she was treated badly by the Society during the supervised access visit. The Board finds that the Society did not listen to her when she called to inform them she would be late. Even after they received the message, they still decided to leave with the child and deprive the mother of her access visit.

Issue 3: Issue of Breach of Privacy.

17The Applicant did not sign a release for the Society to obtain confidential information from Dr. P.S.. She felt that her confidentiality was breached by the Society. In a letter dated August [ ], 2007, Dr. P.S. stated the following: “I do not remember initiating a call to the CAS, but I do remember talking on the phone to a CAS worker, who assured me I was legally correct in speaking freely to her about L.W. and S.”. The Applicant alleges that the Society worker lied about her consent to give information.

18The Society states that it must contact collaterals during its investigations. It is up to them to decide whether to give information to them. The Society entered into evidence a letter dated May […], 2007 to Dr. P.S. from I.C., Child Protection Worker and L.R., Supervisor. This letter informs Dr. P.S. that she (the mother) refused to sign releases of information for service providers. The Society provided the case notes of R.M. who contacted Dr. P.S. on May […], 2007 and J.A. who contacted him on June […], 2007.

19The Board received conflicting evidence on this issue. On the one hand, the Applicant presented a letter from Dr. P.S. stating that a CAS worker had assured him that it was legally correct to speak freely. On the other hand, the Society presented a letter they had written to Dr. P.S. informing him that the Applicant had refused to sign releases of information for service providers. Dr. P.S.’s letter was rather vague and did not name the Society worker he was speaking to or when the call occurred. Since Dr. P.S. was not present to testify to this evidence, the Board cannot determine that the Society worker did not listen to the Applicant and that she lied specifically about her consent to give information.

Issue 4: Request to remove B.C. from her file.

20The Applicant noted that she had written a letter dated March […], 2008 to S.M. requesting that her worker and supervisor be changed. In his reply letter dated April […], 2008, S.M. advised her that this is “a clinical decision to be made by the current supervisor.” He told her to contact L.R. to discuss the issue.

21T.C. testified that a request to change a worker is not automatically given. The request goes through L.R.. The Society tries to resolve the issues before initiating a worker change. It is not unusual that a worker change takes some time with delays in the transfer of files. In this case, the worker and supervisor were changed on June […], 2008.

22The Board finds that the Society did listen to the Applicant and granted the request to change her worker and the supervisor. The delay in the change from the request date around the end of March, 2008 to June […], 2008 was not unduly long.

Issue 5: Request for hair follicle testing.

23The Applicant testified that she had stopped taking oxycontin on January […], 2008. She went to a methodone clinic for urine screens which showed positive for opiates which were prescribed. She provided these urine screens to the Society. The Society refused to do a proper hair follicle test until April […], 2008. There was nothing she could do to prove she was not taking unauthorized drugs. On February […], 2008, she asked for hair follicle testing at Court. On April […], 2008, she was accused of being on drugs. A hair follicle sample was taken on that date, but was not tested until July […], 2008. The Applicant went to the H.S.C. for a hair follicle test, but S.M., the supervisor, refused to pay for the test. The result of the test would eliminate all opiate use except for Tylenol One.

24T.C. testified that hair follicle testing is very costly and used in a strategic way at the discretion of the supervisor. It is used when drug use is negatively impacting the caregiver or if there is a need to confirm drug use. In the Applicant’s case, she was providing urine screens up until January 2008. She testified that a hair follicle test was not needed at that time because the test is segmented and can go back to test previous months use of drugs. The Applicant had supervised access and there was no need to test. On April […], 2008, the Society asked for a test because of the Applicant’s presentation.

25The Board finds that the Society heard the Applicant, but determined that a hair follicle test was not necessary at the time. The Society has the professional discretion to determine the circumstances when services are provided.

Issue 6: Reasons why she is not getting more access.

26The Applicant stated that she was never given reasons as to why she was not given more access. The only reason provided was that she might be a flight risk. She asked B.C. for reasons why she was not given access. Her unsupervised access was discontinued on January [ ] for over use of medication and drug use. Her unsupervised access was changed to supervised access two times a week at the Society’s office.

27The Society stated that reasons were given in court documents. The Society requested a [ ] Family Court Assessment to expedite planning and recommendations for S.L.W.. The Applicant’s access has been increased substantially. The Board finds that the Society gave the Applicant reasons for limiting her access. At the time the Society had concerns of over use of medication and drug use. The Applicant was given reasons but disagreed with the reasons.

Issue 7: The Society is biased towards her ex-spouse.

28The Applicant alleges that the Society did not listen to her, but always supported her ex-partner, S.W.. S. refused hair follicle testing, despite her complaints to the Society that he does drugs and has “crack heads” at the house. He finally submitted to testing late in May, 2008 in order to get his daughter back. He tested positive for cocaine, and benzoylecgonine use, yet S.L.W. was not removed when the test came back. A second drug test which was segmented was done in July, 2008. This test came back positive for cocaine, and the Society still did not remove her. On the other hand, S.L.W. was removed from her because of the Society’s allegations that the Applicant was over using medication and drugs. The Society refused to do hair follicle testing for her. S.L.W.’s drug test of August […], 2008 came back positive for cocaine, benzoylecgonine, and cannabinolds. The Applicant was not specific in explaining what caused S.L.W. to test positive but did provide a copy of S.L.W.’s drug test. S.L.W. was finally removed from S. when the tests came back very high for cocaine use. The Society did not listen to her and favoured S.. She was offered no support, but S.W. was offered Healthy Babies and other supports.

29The Society argued that the Applicant’s perception of bias is subjective. The Society was not biased and in fact increased the Applicant’s access. The Society has taken intrusive action with S.W.. The child was apprehended from S.W.’s care in May 2008 and returned with strict supervision terms. In September, 2008, the child was again apprehended and was not returned to his care. The Society has asked for an assessment from [ ] Court Services which is an independent third party.

30The Board finds that the Society did not listen to the Applicant’s concerns of bias in favour of S.W.. The Society was inconsistent in treating the Applicant and S.W.. When the Society found that the Applicant was over medicating with prescription drugs, her access immediately became supervised and was reduced to twice a week. However, when dealing with S.W., even after two positive tests for cocaine, S.L.W. still remained in his care. S.L.W. was not removed from his care until September after her test also came back positive for cocaine and other drugs. The Board feels that the Society should have been more vigilant in the management of this file to ensure that the child was placed in a safe drug free environment.

CONCLUSION

31The Board dismisses issues 1, 3, 4, 5, 6.

The Board upholds issues 2 and 7.

Donald Butler

Presiding Member

Ruth Ann Schedlich

Panel Member

Mary Wong

Panel Member