CHILD AND FAMILY SERVICES REVIEW BOARD
S.S.
v.
Family and Children’s Services Niagara
REASONS FOR DECISION ON MERITS
Indexed as: S.S. v. F&CS Niagara (CFSA s.68)
Related Decisions: Reasons for Decision on Jurisdiction: S.S. v. Family and Children’s Services Niagara (CFSA s.68), 2007 CFSRB 73
INTRODUCTION
1On October 5, 2007, the Child and Family Services Review Board (the “Board”) received an application from the Applicant regarding a complaint against the Children’s Aid Society of Niagara (the “Society”) pursuant to section 68.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”). The Applicant complained that the Society had refused to proceed with her complaint to reopen an investigation conducted by the Society regarding allegations of sexual abuse of her daughter A.S. while in the care of the Society.
2The Board held a hearing on jurisdiction on December 7, 2008 in St. Catharines, Ontario. The Society argued that the Board did not have jurisdiction to hear the Applicant’s complaint on the grounds that:
(1) she had not made a formal complaint to the Society,
(2) her complaint was about the removal of her children which is a matter decided by the Court, and
(3) her complaint regarding the Society’s decision to refuse to reopen its investigation was premature since it had not been taken to a formal Internal Complaint Review Panel (“ICRP”). Furthermore, the Society had responded in writing to her informal requests to do so at each level.
3The Board concluded on this preliminary motion that it had jurisdiction to hear the Applicant’s complaints that: (1) she was not heard or provided with reasons regarding the Society’s refusal to reopen the investigation; and (2) the Society did not proceed with her complaint regarding its refusal to conduct a further investigation into the possible sexual abuse of her daughter. The Board held that it had no jurisdiction to hear a complaint concerning the removal of the applicant’s children because that was a matter decided by the Court.
4The Board proceeded to hear complaints 1 and 2 at a hearing on April 8, 2008 in St. Catharines.
BACKGROUND
5The Applicant is a new Canadian who is the mother of three children. The children are a daughter, A.S. (d.o.b: December […], 1999) and twin sons, C.S. and A.S.(2) (d.o.b: May […], 2001). The father of the children is the Applicant’s ex-husband R.K. The Society provided child protection services to the Applicant and her children from February 2005 until December 2006. The Society became involved after receiving a referral from a women’s shelter on February […], 2005 informing them that the Applicant and her children had left [ ], Ontario and were in the Niagara region in order to be closer to R.K.
6As a result of the outstanding charges against R.K., the state of his mental health and the Society’s view of the Applicant’s poor decision making regarding the safety of the children, the Society apprehended the children on May […], 2005 in [ ]. The Society commenced child protection proceedings later in the month and on May […], 2005, the Court granted a temporary order placing the children in the care of the Society. On August […], 2005, the children were found in need of protection and were made Society wards for a five-month period. The children were made Society wards for a further four-month period on January […], 2006. On July […], 2006, the children were placed with the Applicant subject to a supervision order for six months and on December […], 2006, the supervision order was terminated.
7The children were in continuous care of the Society in the home of D.M. from May […], 2005 until November […], 2005. On November […], 2005, the Society was informed by both the Applicant and R.K. that A.S. had disclosed that someone named M. or J. was inappropriately touching her. The children were removed from the foster home of D.M. on the same day and placed in a respite home. On November […], 2005, the children were placed in another foster home. The Society initiated an investigation on November […], 2005. The Society was unable to verify the allegations. The Society closed the investigation in January 2006.
8The Applicant alleges in her application to the Board that she was not heard by the Society regarding her request to reopen the investigation into allegations of sexual abuse of her daughter A.S. while in the care of the Society, nor was she provided reasons for the Society’s refusal to do so. The Applicant believes the Society did not conduct a proper investigation initially and requested that the investigation be reopened based on the confusion about the identity of the alleged perpetrator and the May 2006 findings of her own family doctor, Dr. M., that her daughter may have been sexually assaulted. The Applicant urged both the Niagara Police and the Society to reopen the investigation since the alleged perpetrator had not been identified and apprehended and children continued to be at risk.
9On March […], 2007, the Applicant wrote to W.C., the Society’s Executive Director outlining her concerns. On April […], 2007, the Applicant wrote a letter to M.L., Service Director in the Society and expressed the view that she did not agree with the Society closing the investigation. M.L. responded on June […], 2007 stating that the Society was unable to proceed further with an investigation. M.L. indicated that upon reviewing the videotapes, no new information was found. W.C. responded on August […], 2007 reiterating the conclusions stated in M.L.’s letter.
ANALYSIS
Complaint #1: The Applicant was not heard or believed by the Society regarding the need to reopen the investigation and has not been provided with reasons from the Society regarding its refusal to do so that are consistent with the new information regarding the identity of the alleged perpetrator nor reasons to reject the findings of Dr. M.
The Applicant’s Testimony
10At the end of July 2005 during a supervised visit with her mother, the Applicant’s daughter, A.S. made comments that she was having pain when urinating and that “J. gives lots of soap” when showering. The Applicant contacted T.D., a Society worker, and asked who J. was. She was informed that he was the school-aged son of A.S.’s foster mother. The Applicant suggested at that time that A.S. be seen by a doctor. A.S. was seen and on August […], 2005, the Applicant found out that A.S. was prescribed medication for the pain she was experiencing.
11On November […], 2005 during another supervised visit, A.S. commented to her mother that J. put his fingers in her private parts. A.S. was crying and holding her bum. Based on her own observations, the Applicant concluded that A.S. had been sexually abused as did A.S.’s father who was present at the time. A Society worker was informed of A.S.’s complaints and comments. A.S. was first examined by Dr. W. on November […], 2005, the same day that the initial allegations were made, and no evidence of abuse was found. The Applicant was also informed that someone from the Society would contact her regarding the outcome of its investigation. The Applicant was informed that the children would be moved to another foster home and wondered why this would be done if the Society had no ongoing concerns.
12The Applicant’s children returned home on an extended visit in April 2006. The Applicant had been advised by her family doctor, Dr. M., to bring the children in for a checkup when they returned home and she did so in May 2006. Dr. M. asked the Applicant if she had any concerns about the children since she knew they had been in foster care for a year. The Applicant told Dr. M. about the pain A.S. had complained about when she urinated. Dr. M. examined A.S. and said that she needed to report to the Society because of A.S.’s condition. At that time, A.S. wasn’t complaining but wouldn’t allow her mother to touch her genital area. The Applicant reported that she was also concerned about A.S.’s behavior when she returned home and sought support from the Family Life Centre.
13The Applicant also testified that when A.S. was being examined by Dr. M., she made the comment that the person who molested her was not in the foster home and his name was J. This was the first time the Applicant had heard this even though A.S. had stated this at the time that she was first interviewed in November 2005. At a later date, the Applicant found a comment in the Society’s records that A.S. had stated during the interview in November 2005, that the person who had allegedly abused her did not live in the home of the foster mother. A.S. referred to him as “fat J.” and stated to her mother that he did not have much hair (see Exhibit R.1, tab 3, page 67). The Applicant raised this concern as well as the concern that the file was being closed when the alleged perpetrator had not been found.
14On June […], 2006, the Applicant received a call from T.D., a Society worker. T.D. informed the Applicant that Dr. M. had reported allegations of sexual abuse of A.S. and at a later point T.D. informed the Applicant that Dr. M. had also reported that A.S.’s hymen was broken. T.D. indicated that Dr. W., the Society’s consulting physician, would have to examine A.S.. Dr. W. examined A.S. on June […], 2006 in the Applicant’s presence. During the course of the second examination the Applicant became aware of the comments A.S. had made to Dr. W. during the first examination he did of her in November 2005. At the time of the initial investigation, A.S. had told Dr. W. that she did not want him to put his fingers in her bum because that is what “J. and D.” did. When the Applicant asked Dr. W. how he interpreted that comment, Dr. W. stated that he thought that J. and D. were individuals who had conducted a previous physical examination. The Applicant reported that she was quite upset to learn this.
15The Applicant testified that Dr. W.’s examination on June […], 2006 appeared to be superficial and she alleges that he said “everything was the same” and then left the room. Dr. W. did not confirm Dr. M.’s finding. The Applicant testified that she did not believe that Dr. W. was qualified as a specialist and that A.S. should have been referred to the Suspected Child Abuse and Neglect Program (SCAN) which is a program at a hospital for sick children that specializes in assessing and treating children who have been sexually abused.
16On January […], 2007, the Applicant phoned K.H., the supervisor of the Society’s Child Advocacy Centre (the “Centre”) at the time who was responsible for overseeing the initial investigation. She left a message expressing her concern that the file was being closed when the alleged perpetrator had not been apprehended. K.H. and the Applicant met on January […], 2007 to discuss the matter. The Applicant testified that at the meeting on January […], 2007 with K.H., she asked him a number of questions, e.g. why the file was being closed, why the police were not contacted and given the new information about the other J., why nobody talked with A.S. after Dr. M.’s report, why did the Society move the children to another foster home and keep them there if the abuse was not verified, why was A.S. taken to see Dr. W. a second time instead of a woman doctor and finally why couldn’t something be done about reopening the investigation. The Applicant alleges that she did not receive any satisfactory answers from K.H. to any of her questions. She also stated that she felt that K.H. did not believe her because of the nature of the charges against her ex-husband.
17The Applicant also reported that she had raised a concern with K.H. that appointments that the police made to interview A.S. on two occasions in November 2005 had been cancelled. K.H. allegedly told her that he didn’t know why the police had not interviewed A.S. and furthermore that the Society had no powers over the police and could not tell them what to do. K.H. indicated that he would speak to his supervisor, M.P., about the Applicant’s concerns and get back to her. The Applicant testified that she spoke with M.P. who also indicated that the file would be closed and that if she was not satisfied she could contact M.L., Director of Client Services.
18The Applicant, upon the advice of K.H., communicated her concerns to M.L. in writing on April […], 2007. The Applicant met with K.H. and M.L. on May […], 2007 in order to discuss her outstanding concerns. D.L., a friend and support person was present at the meeting. D.L., in her testimony, confirmed that she was in attendance at this meeting and that the Applicant expressed her concerns and made a number of suggestions about the steps the Society should take in order to identify the “other J.”. The Applicant received a written response from M.L. on July […], 2007 in which M.L. indicated that the Society would not be proceeding to reopen the investigation. The Applicant reported that after she received the letter from M.L. she contacted K.H. again and told him that someone had been touching her daughter during the time she was in care and that it happened more than once and not just in November 2005 and something should be done about it.
19In the meantime, the Applicant had written a letter dated March […], 2007, to W.C., the Executive Director, explaining the situation to him as well as the response she received from M.L.. W.C. did not receive this letter until July […], 2007. Because she had not received a response from W.C., the Applicant spoke with his secretary, K.F., who indicated that he had replied to it. K.F. reviewed the content of the letter with her and provided information about how to contact the Ministry. Based on this conversation and a copy of the letter she received in August 2007 from W.C., the Applicant understood that there was nothing else that the Society could do regarding her concerns. She also received a copy of the Society’s complaint brochure, which was sent to her by B.S., a Society secretary.
20During cross-examination, all of the key exchanges between the Applicant and the Society were confirmed. The Applicant also reported during cross-examination that she did not believe that Dr. W. was qualified in the assessment of sexual abuse despite having been provided with an outline of his credentials by the Society (see Exhibit R.1, tab 2, page 56) that included his role as staff physician with SCAN since 2002. She attested that K.H. had in fact suggested that she take A.S. to be seen by SCAN if she was not satisfied with the results of Dr. W.’s examination of her in June 2006. However, she did not do so because the protocol that SCAN outlines indicates that children need to be seen within 24 hours of the first report received from the child and in the Applicant’s view, this is what should have been done when A.S. made her initial allegation in November 2005.
21The Applicant’s final comment under cross examination when asked what she expected from the Board, indicated that she wanted someone to believe what happened to A.S. and hear that the alleged abuser is placing other children at risk. She also asserted that she was standing up for her daughter and whatever the Board’s job is to do is theirs to do but that she was before the Board to tell her story.
K.H.’s Testimony
22K.H. was supervisor of the Society’s Centre at the time that the initial allegation of sexual abuse was received by the Society in November 2005. K.H. explained that the Centre is responsible for dealing with referrals of extreme abuse and all referrals of abuse regarding foster families and that is why it became involved in this case. He also explained that the Centre handles all referrals of alleged abuse that occur in foster homes in order to ensure that these homes were appropriate and safe places for the children in their care. He further explained that the investigations of these cases are more detailed since the Society has access to the foster family file and information from Society staff who know and work with the foster parents.
23K.H. provided an overview of the steps in the investigation process that included a contact with the Niagara Region police services who partner with the Society in these kinds of cases. K.H. testified that a verification conference was held on December […], 2005 in order to share and discuss the outcome of the Society’s investigation process with the Applicant. K.H. stated that the Applicant was informed at the meeting that the allegations of sexual abuse were not verified based on the outcome of the investigation conducted. However, he stated that this did not necessarily mean that the child had not been abused. He explained later in his testimony that the Society makes its determination based on all of the information that it has in hand and if there are inconsistencies or gaps in this information, which in this case he believed there were, then the Society cannot make a definitive determination that the allegations did occur.
24K.H.’s summary of the investigation process was that the Society had completed a joint process with the police who were satisfied with that process and its outcome. The Applicant was provided with this information and also advised to contact the police if she was not satisfied and that the Society was prepared to answer any questions that she had. K.H. stressed Dr. W.’s credentials with SCAN and the fact that the Society uses Dr. W. in these kinds of cases because of his expertise and experience in the area of sexual abuse of children. K.H. also testified that in his discussions with the Applicant during the period when she was requesting that the Society reopen its investigation he attempted to answer her questions but that she was not satisfied with his answers. K.H. confirmed in his testimony all of the discussions and meetings that took place between himself and the Applicant to which she had testified as reported in the previous section of this decision. K.H. testified in cross-examination that there was no evidence to support the involvement of a person from outside the foster home as the alleged abuser and Dr. W. had not found any physical evidence of abuse on the two occasions when he examined A.S. and therefore no grounds to pursue the matter any further.
Complaint #2: the Society refused to proceed with the Applicant’s complaint.
25At the hearing on April […], 2008, the Society conceded that it had not proceeded with the Applicant’s complaint, as required by the legislation and that it would establish an Internal Complaint Review Panel (“ICRP”) to do so. Linda Henry, Counsel for the Society, reminded the Board that the Society’s summary reply to the Board dated October 18, 2007, had indicated that it would seek direction from the Board pursuant to section 68.1(7) regarding proceeding with a complaint process should the Board find that it does have jurisdiction to hear complaint #2.
FINDINGS
26The relevant sections for the Board to consider in this case are:
Section 2(2)(a) of the Child and Family Services Act (the “Act”) which reads as follows:
2(2) Service providers shall ensure,
(a) that children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about services they are receiving.
and section 68.1(4) which reads as follows:
68.1(4) The following matters may be reviewed by the Board under this section:
Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 68(1) as required under subsection 68(2),
Allegations that the society has failed to comply with clause 2(2)(a),
Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.
27The Board must determine whether or not the Society complied with these three sections of the Act. If the Society is found to have complied with these sections of the Act, then the Board will dismiss the complaints.
Complaint #1
28The Board is satisfied that the Society met with the Applicant on the occasions where she expressed a need to do so and responded to her in writing. The testimony of both parties and their submissions attest to this. The Applicant confirmed that K.H. and other Society staff attended meetings at her request on a number of occasions and M.L. and W.C. responded in writing to her letters. However, in the evidence that the Board heard, the Board believes that the Society failed to listen to all of the specific details relevant to the alleged abuse that the Applicant shared with the Society and which compelled her to request that the investigation be re-opened. The Board recognizes that K.H. gave her reasons for not reopening the investigation and both M.L. and W.C. reiterated the same reasons in their letters to her. The reasons given were based on only one or two factors and did not reflect all of the relevant factors that the Applicant brought to the Society’s attention. The Board concludes that the Society did not hear all of the relevant details of the Applicant’s concerns and did not take them into account in their reasons for not reopening the investigation.
29The Board finds that the Society did not give the Applicant the opportunity to be heard and reasons for their decision in accordance with sections 68.1(4)4 and 68.1(4)5 of the Act. It is the Board’s view that the Society did not hear her with regard to the persistent signs and symptoms her daughter was exhibiting and the unanswered questions regarding the alleged abuse and the abuser’s identity.
30The Board also believes that because the Society did not hear all of the relevant details of the Applicant’s concerns, its reasons for its decision not to reopen the investigation failed to take into account all of the information that the Applicant believed required an enquiry and explanation.
31For these reasons, the Board orders the Society to proceed to establish an ICRP meeting within the legislated timeframes that would commence on the date that this decision is issued.
Complaint #2
32Complaint number 2 speaks to a failure on the part of the Society to comply with the complaint review procedures established by regulation. The Society has conceded that it did not comply and has agreed to do so. The Society will be conducting the ICRP meeting in order to hear the Applicant’s complaint about reopening the investigation again since that is what all of her correspondence to the Society was about.
33It is important to distinguish the Board’s hearing process from the ICRP process because at first glance, it appears that both bodies have heard the same complaint, namely, the failure of the Society to re-open the sexual abuse investigation. The ICRP meeting is a different process and has a different purpose from the Board’s process and the purpose of this hearing. The Board’s focus is an adjudicative one in order to determine whether the legislative requirements under section 68.1 have been met. In this case, the Board had to determine whether the Society listened to the Applicant’s concerns and whether it provided her with reasons regarding its refusal to re-open the investigation. The Board did not conduct a review into the merits of a further investigation nor did it undertake a further investigation itself.
34The ICRP meeting has a clinical service focus and as such has the potential to come to a more complete understanding of all of the issues of concern to the Applicant. It also has the potential to hear more, enquire more extensively and arrive at a different conclusion than may have been arrived at through other processes. The Applicant will be coming to the Society as a former client with a history of a relationship with the Society and as a parent who is acting in the best interests of A.S. and her other children and who may in the future require the services and support of this Society or another society.
35It is evident that the Applicant believes that A.S. was abused based on the persistent signs and symptoms A.S. is exhibiting and the questions that remain unanswered. It is also evident that, in the words of K.H., the outcome of the Society’s process does not mean that the abuse did not occur. Both of these issues, namely, the basis for the Applicant’s strong belief in the reality of the alleged abuse and the possibility that the abuse did occur, should be taken into account in the Society’s response to the Applicant following the ICRP meeting. Finally, the ICRP process is an opportunity for the Society to assess its practices related to the conduct of investigations to ensure that they have been fair, open-minded and thorough and that, in this case, no important details have been overlooked or failed to have been considered and accounted for. The significance of incidents that warrant investigation demand that any Society be as comprehensive and thorough as possible in the best interest of the child or children involved.
36In light of these findings, the Board orders the Society to proceed to establish an ICRP meeting within the legislated timeframes that would commence on the date that this decision is issued.
CONCLUSION
37The Board orders the Society to proceed to schedule an ICRP meeting within 14 days of the release of this decision to deal with the Applicant’s complaint regarding the Society’s refusal to reopen the investigation of the alleged abuse of her daughter. The Society must ensure that its decision regarding the reopening of the investigation, following the ICRP meeting, responds to all of the information presented by the Applicant.
Denyse Diaz Presiding Member
Deborah Simon Panel Member
Gail Gonda Panel Member
Dated at Toronto, Ontario this 28th day of April, 2008.