E.S. v. Kawartha-Haliburton CAS, 2008 CFSRB 40

CHILD AND FAMILY SERVICES REVIEW BOARD

E.S.

v.

Kawartha-Haliburton Children’s Aid Society

REASONS FOR DECISION ON MERITS

Date: May 7, 2008
Citation: 2008 CFSRB 40
Indexed as: E.S. v. Kawartha-Haliburton CAS (CFSA s.61)

INTRODUCTION

1The Applicant, E.S., filed an application with the Child and Family Services Review Board (the “Board”) on January 9, 2008 pursuant to section 61 of the Child and Family Services Act (the “Act”). The Applicant is appealing the decision of the Kawartha-Haliburton Children’s Aid Society (the “Society”) that removed a foster child, T.B., from her Therapeutic Foster Care.

2The Applicant was a foster parent of T.B., D.O.B. March […], 1997, from September […], 2004. T.B. was removed from the Applicant’s home by the Society on June […], 2007 and placed at B.G.H.

3A hearing was held on April 17 and 18, 2008 in Peterborough. Ms. Kimberly Randell, Senior Legal Counsel represented the Society. The Applicant was self-represented. The child, T.B., was represented by Ms. J.K., counsel appointed by the Office of the Children’s Lawyer.

4The Society argued the Board is without jurisdiction to hear the application because:

1. the Applicant did not apply for a review of the child’s removal within 10 days of receiving notice of the Society’s decision to move the child, as required by subsection 61 (7.1) of the Act;

2. the application does not relate to a “proposed” removal of a Crown Ward, as the child was moved on June 29, 2007; more than 9 months ago, and

3. the relief sought by the Applicant is outside the jurisdiction of the Board. Subsection 61 (8.6) of the Act provides that “The Board shall . . . confirm the proposal to remove the child or direct the society not to carry out the proposed removal . . .”. The Act does not grant the Board the authority to direct the return of the child to the Applicant’s care, as she is seeking.

5The Society argued further that the tight timelines in the Act direct and encourage placement of the child to be decided in a timely manner. For the Board to now look at T.B.’s placement would be disruptive to his current placement and treatment. The Society requests that the Board dismiss the complaint.

6The Applicant responded that she has tried not to disrupt T.B.’s placement, but she had no knowledge of the Board and her right to a review. She believed that the RPAC (Regional Placement Advisory Committee) hearing of July 17, 2007 was the Board process. the Applicant did not receive notice that she had the right to appeal within 10 days to the Board. The Applicant states she clearly was not informed of the right to a review process by the Society.

7Ms. J.K., T.B.’s counsel, reviewed the Society’s website and looked at the complaint brochure, but the timelines for a section 61 application were not highlighted as that brochure relates only to section 68 complaints. Ms. J.K. advised that the Applicant was aware that T.B. was going to be removed from K.C.F.S. as K.C.F.S. was withdrawing their services. the Applicant was called into the Society’s office and thought that T.B. would be transferred from the care of K.C.F.S. to the Society. The Applicant was not given written reasons why T.B. was being removed. Ms. J.K. stated that the Society failed to provide the Applicant information on the right to appeal. The removal of a child is a “proposed removal” pending the foster parent’s right for a review. Proposed or not proposed, the lack of information given to the Applicant “blindsided the Applicant” and the Society “failed the Applicant by not giving the foster parents the knowledge they needed to consider an appeal”. Ms. J.K. stated that the right of notice had not been given to the Applicant and indicated that the child had been removed prematurely and therefore the Board should rule that it has jurisdiction to hear the merits of the application.

DECISION

8Subsection (7)(a) of section 61 provides as follows:

(7) If a child is a Crown Ward and has lived continuously with a foster parent for two years and a society proposes to remove the child from the foster parent under subsection (6), the society shall,

(a) give the foster parent at least 10 days notice in writing of the proposed removal and of the foster parent’s right to apply for a review under subsection (7.1).

9The Applicant was not given notice of her right to apply for a review pursuant to subsection (7.1). The Applicant had no knowledge of the Board and was not informed of her rights under the Act.

10The Board dismisses the motion of the Society and will proceed to hear the merits of the application pursuant to section 61 of the Act as the Applicant had not been given 10 days notice in writing of the proposed removal of T.B. and of her right to apply for a review under subsection (7.1).

HEARING

11An oral hearing took place on the merits of the application following the Board’s ruling on the jurisdiction motion.

12The Board must determine what action is in the best interests of T.B.. The Society does not believe it is in T.B.’s best interests to be removed from B.H.L.. and returned to the home of the Applicant 's family. T.B. is a Crown Ward and has not been in the care of the Applicant since June 2007. The Society has determined that the Applicant is not a placement option and that they believe T.B. is receiving appropriate and good care and hopefully he will become a responsible citizen. The Applicant believes that T.B. is well placed in their home, that they love him and he loves them. She stated that they have a unique understanding. The Applicant advised a willingness to continue treatment if T.B. stays in her home. She cannot understand why remaining in her home is not an option. She indicated that she and her husband had thought of adoption, but they would require financial assistance for T.B.’s problems. She advised that she helped piece T.B.’s life together, reconnecting T.B. with his paternal grandmother.

13The Society called two witnesses to give evidence, Mr. J.B., a Society Child Protection Supervisor and Ms. J.G., Clinician, B.G.H.. Mr. J. B. testified that T.B. came into care in September 2004 after his aunt and uncle referred him to K.C.F.S.. The aunt and uncle backed away and the Society went to Court to obtain temporary custody. T.B. became a Crown Ward in April 2005. Mr. J. B. stated that the Applicant, and her husband were foster parents for K.C.F.S.. K.C.F.S. provides treatment services in the community. When T.B. came into care he was difficult to control, as he had received inconsistent care and was quite aggressive. He also had sexualized behaviour. His mother had mental health issues and it is believed that T.B. was sexually abused. T.B. was placed at L.H. and was in a section 20 classroom. He moved to the Applicant 's family home September […], 2004. K.C.F.S. advised the Society in November or December 2006 that they felt that T.B. was not benefiting from the treatment that they were providing and that they planned to release him from their treatment at the end of the school year in June 2007. They recommended that T.B. be moved to B.G.H.. Mr. J. B. testified that the Applicant 's family “had done a pretty good job” getting T.B. into the local community school and that T.B. seemed to function well in the family. The Society entered into discussions with the Applicant on how to continue T.B.’s placement. The thought was to remove the Applicant from K.C.F.S.’s foster care parents and have her join the foster care parents of the Society. He indicated that there was a lot of discussion regarding extra support and per diems. T.B. was a tough kid. Mr. J. B. testified that the Applicant had done a good job with T.B. – that she loved him and the family is a great package.

14The Society then became nervous about T.B.’s need for treatment. Treatment foster care support in [ ] was offered to the Applicant. The Applicant declined because the support was for the Applicant, not for T.B.. The Applicant apparently told the Society that if T.B. re-offends, he would have to leave their home. That response raised a red flag for the Society. As well, there were two sexual incidents outside of the home, one at the grandparent’s home where T.B. assaulted a five year old, leaving teeth marks on the penis. The second incident involved 2 other children playing a game. T.B. guarded the door and the other boy (a cousin) assaulted the girl. T.B. informed his grandmother who told the Applicant and she in turn advised the Society. The Society did not investigate the incident.

15Mr. J. B. stated the Applicant was supervising T.B. to protect him from being involved in another sexual incident. Mr. J. B. suggested that reaction did not allow T.B. to live a more normal life. He also stated that if something were to happen to T.B., he would be leaving the Applicant 's family home in a crisis. As a result, the Society, having already told T.B. that he would remain with the Applicant 's family, reversed their decision and two weeks later Mr. J. B. informed T.B. that he would be moving to B.G.H. at the end of June.

16Ms. J.G. is a clinician at B.G.H.. In her testimony she informed the Board that B.G.H. is a placement for 100 children. She believes that T.B. needs psychotherapy to address sexual behaviour that he was exposed to, a highly structured setting with a consistent schedule and to learn how to deal with conflict. In her view, T.B. needs a section 20 classroom because she believes T.B. would be lost in a regular classroom in a community school. She stated that under stress, T.B. engages in and brings out past behaviours, putting his hands in his pockets and fondling himself to self stimulate and masturbate. She believes T.B. needs 18 months of individual therapy. What is in T.B.’s best interest, in her opinion, is to connect with the family of origin – mother and sister. She believes that T.B. needs a residential setting plus therapeutic work. T.B. needs protection in place where he could engage with his grandmother. Ms. J.G. stated that she would not be comfortable with T.B. being in a home environment at this time. She believes that it could trigger T.B. to have more difficulties. She recommends terminating access with the Applicant 's family. Ms. J.G. was asked what the cost per day was for a child placed at B.G.H.. She replied that the daily cost is $343.00 plus $32.00 a day for school. Ms. J.G. in addition was asked if she was concerned about T.B. sexually acting out. She replied, “Yes, that is why he is in the program.” She advised that when T.B. was first placed at B.G.H. he had a wet bed every night and further he was observed rubbing himself up against furniture and masturbating.

17In her testimony the Applicant advised the Board that when they first met T.B. he was extremely primal, had a severe attachment disorder, ADD and not performing at the appropriate grade level. T.B. greeted the Applicant 's family on all fours making monkey noises. She stated that T.B. was welcomed into the family home and was loved and nurtured. the Applicant was responsible for having T.B. successfully placed in the local community school and out of the section 20 behaviour class. She testified that when T.B. came to live with them he had no sense of boundaries. He would hug men and crawl up on them. One of the first issues with T.B. was to establish healthy boundaries and to teach him that you do not touch people.

18The Applicant stated that she and her family had developed a close relationship with T.B.. They introduced T.B. to music and art and involved him in extra curricular activities. She testified that T.B. had made gains in their care and was continuing to progress.

19The Applicant called 3 witnesses to provide evidence. Mr. D.G., T.B’s Grade 4 teacher, informed the Board that T.B. seemed to be a happy 9 year old, pleasant, socialized well, and behaved appropriately. He stated that T.B. never spoke about sex to him or his peers and there was no incident of sexual behaviour. The teacher advised that a school plan was put in place to accommodate T.B.. He was not to be placed in the company of younger children, he had a particular area on the playground to play and he was escorted to the washroom. Mr. D.G. was surprised to hear how T.B. is now behaving at B.G.H.. He was quite surprised that T.B. had been placed in a Grade 3 class. T.B. would be welcomed back to the school.

20Ms. D.P., a qualified teacher tutored T.B. for the past 2 years. She did this on behalf of the Society. She saw T.B. grow from less competent to more competent. She said that T.B. was living in an incredible home and was shocked and cried when T.B. was removed as she did not agree with the decision. Ms. D.P. resides around the corner from the Applicant 's family and has 2 daughters aged 6 and 9. She stated that there are no concerns in the community or at school regarding T.B.. She advised that she would be willing to resume tutoring if T.B. was returned to the Applicant 's family.

21M.B. is the paternal grandmother of T.B.. She met the Applicant when T.B. moved there from the group home. T.B. showed her through the house and she felt comfortable that a family would care for him. The Applicant brought T.B. and his grandmother together, arranging monthly visits following approval from the Society. T.B. also called her every Tuesday evening. She always felt it was in T.B.’s best interest to stay with the Applicant 's family. The Applicant always treated him respectfully. T.B. phoned his grandmother to advise her that he was staying with the Applicant 's family. He told her that it would be so cool to live at the Applicant 's family’ house. Six weeks later the Society removed him. M.B. advised that she has never spoken to the clinician at B.G.H. They have never asked her for any input regarding T.B. She believes it is in T.B.’s best interests to go home to the Applicant and P.S. It is the right home for T.B.

ANALYSIS AND REASONS

22The issue before the Board is to determine whether T.B. should have been removed from the Applicant’s home having regard to the best interests of this child. In considering best interests, the Board has reviewed section 37 of the Act. The Board considered the following provisions in subsection 37(3) to be significant in this case:

(3) Where a person is directed to this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. the child’s physical, mental and emotional needs and the appropriate care or treatment to meet those needs;

2. the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

23The evidence was overwhelming that this child excelled under the care of the Applicant 's family. The evidence of his teacher and tutor clearly indicated that the child was responding in both learning venues and without incident. The Society provided no evidence to contradict the view that the Applicant 's family’ home was a nurturing and caring place where T.B. is considered a member of the family.

6. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.

24The Board heard evidence that Trevor’s Grandmother found the Applicant 's family to be a nurturing family where she felt welcomed. She observed T.B. to be doing well and who appeared happy.

7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

25The evidence provided by the Applicant and her witnesses clearly indicated that the continuity of care provided by her was proving to be valuable. The Society did not contradict that evidence and in fact supported the placement of the Applicant as a Therapeutic Foster Care parent for a considerable period of time. T.B. clearly progressed from a period where he was an isolated withdrawn child to a young person who was demonstrating kindness, respect and empathy.

9. The child’s views and wishes, if they can be reasonably ascertained.

26The child’s view, wishes or opinion were not considered when the Society planned a proposed move for the child. The evidence revealed that he was not provided with any reasonable notice or input during any stage of his removal until it was too late to do so. T.B. knows what he wants. He clearly wishes to return to the home of the Applicant 's family. Ms. J.K., T.B.’s counsel also believes that T.B. should be returned to the home of the Applicant 's family.

10. The effects on the child of the delay in the disposition of this case.

27Because the Society failed to follow the legislative process that would have allowed the Board to determine whether T.B. should be removed from the Applicant 's family’ home, the Society has made the appeal application unnecessarily complicated and convoluted. Considerable time has elapsed since the removal of the child and his placement at B.G.H.. The proposed removal should have followed a specific sequence of procedures where the child would have remained with the family until the appeal process had been completed.

28There was no evidence that clearly demonstrated that T.B. would suffer emotionally, psychologically or therapeutically from being removed from B.G.H. to the Applicant 's family’ home where the same kinds of supports and resource could be provided.

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

29The evidence suggests that T.B., as a result of being removed from the Applicant 's family, has faced another trauma in his life. This trauma is associated with being removed from a family that has demonstrated that they are equipped to provide the kind of care that T.B. needs instead of being placed in an institutional setting. The Board does not believe that T.B. will suffer harm as a result of being removed from B.G.H. and returned to the Applicant 's family’ family home. What has been identified as being necessary should he return to the Applicant 's family are specific strategies, supports and resources necessary to continue with the therapeutic treatment of this child. The Board is aware that from December 2006 until June 2007, neither K.C.F.S. nor any other agency, was providing treatment for T.B..

30Ms. J.K., counsel, representing T.B., arranged for him to come to her office where she interviewed him. She found T.B. to be quite open and candid and was articulate. He knows that he needs help. He knows that the Applicant 's family love him and understand him. He liked his school, teachers and friends. It came as a surprise to him when he was moved. He was not consulted. No one asked him what he wanted. He stated that he did not know why he was moved. The Society supervisor said it was because of all the stuff that he had done – some acting out, climbing on people, inappropriate comments and the incident with his cousin. He thinks he is at B.G.H. because he is bad, to get out of there he has to be good. He hates it there. He doesn’t want to be there. He said he is not doing anything bad there, not being sent to the quiet room and not getting restrained. He explained when B.G.H. placed him in a Grade 3 class he felt stupid. He stated that the Applicant (the Applicant) understands him. He said that the B.G.H. staff do not love him. He wants to see his animals (a dog and 5 cats) at the Applicant 's family. It is the opinion of Ms. J.K. that T.B. has an understanding beyond what the Society thinks.

31Ms. J.K. cited several sections of the Act which the Society failed to comply with:

Subsection 61(5)(a) and (b) provides as follows:

The society having care of a child shall ensure that,

(a) the child is afforded all the rights referred to in Part V (Rights of Children); and

(b) the wishes of any parent who is entitled to access to the child and, where the child is a Crown Ward, of any foster parent with whom the child lived continuously for two years are taken into account in the society’s major decisions concerning the child.

Section 107 Right to be Heard

107. A child in care has a right to be consulted and to express his or her views, to the extent that is practical given the child’s level of understanding, whenever significant decisions concerning the child are made, including decisions with respect to medical treatment, education and religion and decisions with respect to the child’s discharge from the placement or transfer to another residential placement.

32T.B. and the Applicant 's family have not been heard or consulted. T.B. has the right to be heard, consulted and informed. The Society is bound to act in T.B.’s best interest. When the question was asked of T.B. what was in his best interest, his response was “to go home to the Applicant”. Ms. J.K. agrees with T.B. as to where he needs to be.

33T.B. was removed from a loving, caring, nurturing home and safe school environment at a daily per diem cost to the Society of seventy-five dollars to an institution where T.B. is now mimicking behaviours from that environment at a daily cost to the Society of three hundred and forty three dollars. While T.B. resided with the Applicant 's family he did not display any of these sexual behaviours that he is now exposed to at B.G.H..

34The Board is of the opinion that T.B. will be well cared for and protected at the home of the Applicant 's family. T.B. has the support of the local community school, his grandmother and his biological mother who have stated that it would be in T.B.’s best interest to return to the Applicant 's family. The Society has the financial resources available to them to provide treatment support for T.B. while living with the Applicant 's family. It is the view of the Board that the Society has the capability and the authority to return T.B. to the home of the Applicant 's family. The Board has determined that it is in the best interests of T.B. to remain in the foster home of the Applicants.

DECISION

35Subsection 8.6 of section 61 provides as follows:

(8.6) The Board, shall in accordance with its determination of which action is in the best interests of the child, confirm the proposal to remove the child or direct the society not to carry out the proposed removal, and shall give written reasons for its decision.

36For the reasons set out above, the Board rescinds the decision of the Kawartha-Haliburton Children’s Aid Society to remove T.B. from the foster home of the Applicant.

Frances Sanderson
Presiding Member

Wendell White
Panel Member

Ruth Ann Schedlich
Panel Member