S.B. v. Children's Aid Society of Toronto, 2008 CFSRB 51

CHILD AND FAMILY SERVICES REVIEW BOARD

S.B.

v.

Children’s Aid Society of Toronto

REASONS FOR DECISION ON MERITS

Date: May 30, 2008

Citation: 2008 CFSRB 51

Indexed as: S.B. v. CAS of Toronto (CFSA s.68)

INTRODUCTION

1This is an application under subsection 68(5) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”). The Applicant and his wife J.B. have asked the Child and Family Services Review Board (the “Board”) to review the decision made by the Children’s Aid Society of Toronto (the “Society”) upon completion of its complaint review procedure, to determine whether the Society:

1. failed to respond to the complaint within the timeframe required by regulation;

2. failed to comply with clause 2(2)(a) of the Act which states that service providers shall ensure children and their parents have an opportunity to be heard where appropriate and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving; and/or

3. failed to provide the Applicant with reasons for decisions that affect the Applicant’s interests.

2S.B.(2), age 13, is the daughter of the Applicant and his wife. She was admitted to the care of the Society on October […], 2002. She is currently a Crown Ward and resides in a treatment foster home where she was placed on April […], 2003. S.B.(2) has significant developmental delays, being severely autistic and non-verbal. There have been various court proceedings regarding S.B.(2), including questions around the parents’ access and visitation with S.B.(2). Particularly, the Applicant and his wife have raised issues around whether visits could take place in-home, overnight, etc.

3The Applicant made various complaints to the Society in November and December, 2007 regarding the Society’s involvement with their daughter. An Internal Complaint Review Panel (“ICRP”) was formed and a meeting was held on December […], 2007. The ICRP’s results were provided to the Applicant in a letter dated December […], 2007.

4The following concerns constitute the Applicant’s complaint to the Board:

a. concerns about the treatment and management of S.B.(2) and, in particular, concerns about the use of medication;

b. concerns about S.B.(2)’s emotional state given an alleged suicide note referenced in a fax to the Board dated January […], page 6, item number 16 re: S.B.(2) being brought to the hospital by the foster mother because she tried to commit suicide;

c. concerns regarding the care that S.B.(2) is receiving in her foster home, e.g. use of a weighted blanket, her diet, lack of exposure to her culture, the presence of a 15-year-old male in the home, and the fitness of the foster mother who uses a cane; and

d. access to medical reports and other reports about S.B.(2) for the period December 2005 to February […], 2006 when the parents were not allowed to see her.

5Although the Board’s mandate under s.68(5) is to review the Society’s internal complaint review procedure in order to determine whether the Society met its statutory obligations, the Society also presented evidence to directly address the Applicant’s concerns, rather than simply referencing the ICRP.

ANALYSIS

Issue no. 1: Whether the Society’s response to the complaint was within the legislated timeframes.

6A December […], 2007 letter to the B. family from the Society, made reference to faxed letters dated November […], November […], December […] and December […], 2007 outlining their complaints. The Society determined the complaints were eligible for review under section 68 of the Act and section 3 of O. Reg. 494/06, and it set up an ICRP for December […], 2007.

7The ICRP was conducted on December […], 2007, within the 14 days after the date of the written notice was sent to the complainant, as per O. Reg. 494, s. 7 (1). The IRCP was in person, as required.

8A written summary of the ICRP was provided in a letter by the Society to the B. family, dated December […], 2007. This was 13 days from date of ICRP; within the 14 days required under O. Reg. 494/06, s.9.

9The Board finds that the Society’s response to the complaint was within the legislated timeframes, and dismisses this portion of the Application.

Issue no. 2: Whether the Applicant had an opportunity to be heard where appropriate and represented when decisions affecting his interests were made and to be heard when he had concerns about the services he was receiving.

10The Applicant submitted that he and his wife were not listened to, nor were their opinions considered, when the Society made decisions regarding S.B.(2)’s care. Their concerns are noted in paragraphs a. to d. below.

11Andrea Smart, Counsel for the Society, submits that the Applicant and his wife had opportunities to be heard throughout the Society’s involvement with S.B.(2). The primary place for the parents to express their opinion is at the Plan of Care meetings, which take place regularly. C.S., Supervisor for Children’s Services, testified that the B. family have been invited to all Plan of Care meetings. She testified that the issues raised by the Applicant were all discussed at Plan of Care meetings, which J.B. attended. C.S. expressed a sincere wish that the B. family would once again attend the meetings, to stay informed of developments in S.B.(2)’s treatment and to express their concerns.

1. Medication

12The Applicant began by noting that he and his wife want S.B.(2) to develop to her best ability, but find she is not developing. The Applicant believes that S.B.(2) is being given inappropriate medication, which is not scientifically tested. He notes that she was being given medication to make her “manageable”, yet she had to be admitted to hospital on August […], 2006 due to aggressive and agitated behaviour.

13On this point, C.S. went over S.B.(2)’s medical history and the medications that have been prescribed. The Society notes that all medication is prescribed by qualified physicians, and that it follows doctors’ orders in this regard. C.S. testified that the Applicant previously expressed concern about S.B.(2)’s medication, and as a result the Society had an independent assessment conducted by a consulting physician with the centre for treatment of autism, Dr. H. He saw her most recently on August […], 2007. The Society sent a letter to the Applicant and his wife, inviting them to meet with Dr. H. and be involved in this aspect of S.B.(2)’s treatment. They have yet to respond.

14The Society is of the view that the problems have partially arisen from the decision to transfer S.B.(2)’s medical care from a hospital for sick children, to a medical centre in Hamilton. The change was made because S.B.(2) resides in [ ], and Hamilton is much closer, resulting in less stress to S.B.(2) from the long rides to and from appointments. While the reduced transportation time has been an advantage, the Applicants reside in Toronto and do not have a car. They feel her treatment was better in Toronto and that her treatment is substandard in Hamilton. Nonetheless, the Society points out that the Applicant and his wife were present at the Plan of Care meeting on March […], 2004 when the decision was made that referrals would be made to the medical centre.

15The panel finds the Applicant was given an opportunity to discuss medication throughout S.B.(2)’s care at the Plan of Care meetings, and has been offered the possibility of meeting personally with Dr. H. It is clear that the Society does not prescribe medication, but follows doctors’ orders in this regard.

1. S.B.(2)’s emotional state

16The Applicant presented transcribed physician’s notes dated October […], 2006, regarding S.B.(2)’s admission to an alternate hospital on August […], 2006 (exhibit A-2). S.B.(2) was hospitalized from August […]-[…], 2006. The Applicant argues that the note indicates S.B.(2) was “very agitated”, and had been for 24 hours prior to her admission to hospital. The Applicant and his wife believe that the cause of this agitation is the length of time she had not seen her family or her home. The Applicant blames the Society for this emotional state. He and his wife term this doctor’s note a “suicide note”.

17C.S. testified in response that the Society does not believe S.B.(2) tried to commit suicide. She does not have the cognitive ability to form such an intention. The note is evidence simply that she had been suffering from vomiting and diarrhea, and was admitted to hospital when she became very agitated. Her medication was changed at that time.

18The Society referred the Applicant to the centre for treatment of autism, which offers free, educational courses for parents of autistic children to better understand autism and its treatment. The Applicant attended one such course.

19The panel finds the Society has provided the Applicant with an opportunity to express his concerns in this regard, both through the regular Plan of Care meetings, at the ICRP process, and through the offer to have him meet with Dr. H. The panel dismisses this portion of the complaint.

20The Applicant’s concerns regarding S.B.(2)’s exposure to her cultural roots, which he also feels has an impact on her emotional state, is dealt with below.

c. Concerns regarding the care that S.B.(2) is receiving in her foster home; e.g. use of a weighted blanket, her diet, lack of exposure to her culture, the presence of a 15-year-old male in the home, and the fitness of the foster mother who uses a cane.

21The Applicant and his wife testified that they feel the Society is torturing S.B.(2) through use of a weighted blanket, which keeps her trapped like a prisoner. The Applicant testified that he first learned the foster mother was using one, through an affidavit filed in Court. He believes the foster mother uses it as a means to control S.B.(2), because she is not able to run after her.

22J.B.(2), Children’s Services Worker, testified on behalf of the Society. She described the “weighted blanket” and explained its use in the treatment of autistic children. “Autism” involves a wide range of symptoms, she testified, and for some children these blankets are a common and accepted aid to help them feel “grounded”. She testified that the maximum weight is 10% of the child’s bodyweight, spread out with small weights sewn into pockets distributed throughout the blanket. She testified that S.B.(2) can pull it up or remove it herself, that she appears to like the blanket, and that it appears to calm her. She also testified that the blanket was discussed at Plan of Care meetings, including one where J.B. was present, and its use was not hidden.

23With respect to diet, S.B.(2) suffers from diarrhea and stomach problems. These ailments have repeatedly caused visits with the Applicant and his wife to be cancelled. The Applicant and his wife believe S.B.(2)’s problems are caused by the foster mother not following the family’s cultural practice of serving cold food prior to hot, and refusing to allow her to have milk or milk products, which are important to their culture. The Applicant provided a note taken from S.B.(2)’s chart when she was in hospital, noting that she was to receive no milk products. This is despite the fact she has never been diagnosed as having a milk allergy.

24The Society responded that all the Applicant’s concerns regarding diet have been expressed earlier, and taken into account by the Society. For example, the foster mother followed the cold/hot order and found it made no difference to S.B.(2)’s stomach problems. They follow the Applicant’s request that S.B.(2) not be served pork. Further, J.B.(2) testified that autistic children very commonly suffer from diarrhea, and that the specific reason has not yet been found. She also testified that the foster mother, on recommendation of S.B.(2)’s physician, experimented with the lactose-free diet to see if it would help. S.B.(2) has recently seen a paediatric gastro-enterologist and the question of whether she has a milk allergy will be answered when the results come back.

25With respect to exposure to her culture, the B. family feel S.B.(2) cannot get sufficient exposure through family visits and occasionally viewing the music videos they provide to the foster mother. They believe she must be immersed in the […] culture to feel at home and be calm. The Applicant also raised the issue that the Society was not allowing visits at the Applicant’s home for a time, which he believes further confused S.B.(2). Pursuant to a Court Order, however, visits are once again taking place at their home.

26The Society responded that S.B.(2) has numerous needs, which could only be addressed in a treatment foster home. There are few such homes available, and none where S.B.(2) would be immersed in her culture. The Society noted in its ICRP response, and through testimony at the hearing, that S.B.(2)’s foster mother does what she can in this regard, including showing the music videos and dressing S.B.(2) in traditional clothing. The Society also discussed the reasons for the decision to have visits take place away from the Applicant’s home, although as noted above, that practice has been stopped. All of these moves were discussed at Plan of Care meetings, in the presence of the Applicant and his wife.

27The Applicant also raised a concern that a 15-year old boy resides in the foster mother’s home. S.B.(2)’s physical and mental disabilities mean that she is particularly vulnerable.

28The Society noted that the B. family were aware of this young man living with the foster family when S.B.(2) was first placed with this foster home in April, 2003. The Applicant met the boy at that time. C.S. testified that the children have their own rooms, and both children have alarms on their doors. They are never alone together, and there have been no protection concerns raised. The Society submits the Applicant has had an opportunity to express concerns, and has done so.

29Finally, with respect to the foster mother’s fitness to care for S.B.(2) given that she uses a cane, the Applicants are concerned that should their daughter ever run off, the foster mother would be incapable of going after her.

30The Society responded that some autistic children are “darters”, in which case the ability to run after them may be a concern. S.B.(2), however, has never presented with this tendency and it has never been an issue in her care. C.S. testified that the Society ensures foster parents are physically up to the job by having them undergo physical examinations every two years. This issue was also addressed in the ICRP reply.

31The panel finds that all the issues raised by the Applicant in this hearing were previously heard and addressed by the Society. It is clear that the Applicant does not agree with some of the Society’s decisions, such as placing S.B.(2) with this foster mother. Nonetheless, the Society is tasked with making these decisions. It has the duty to hear the Applicant’s concerns and respond to them, which we find it has done in each instance.

1. Access to medical reports and other reports about S.B.(2) for the period December 2005 to February […], 2006 when the parents were not allowed to see her.

32The Applicant testified that he and his wife were not able to see S.B.(2) for approximately three months because access visits were repeatedly cancelled. He testified that, as a result, S.B.(2)’s mental health suffered. He believes the Society has not provided medical and other reports from this time period.

33J.B.(2) testified in reply that there were visits on December […], 2005, December […], 2005, and January […], 2006, all at an access centre. She explained that two visits were missed, on February […], 2006 and February […], 2006, due to S.B.(2)’s stomach problems. She testified that the Applicant has been given all medical reports in the Society’s possession from this time period, and they have undertaken since that time to provide a Doctor’s note any time a family visit must be cancelled. The Society also offered to have the Applicant meet with S.B.(2)’s doctor.

34The panel finds the Applicant has not established that the Society failed in its responsibilities regarding the sharing of medical information, and we find that the Society has provided the Applicant with an opportunity to be heard in this regard.

Issue no. 3: Whether the Society failed to provide the Applicant with reasons for decisions that affect the Applicant’s interests.

35The panel finds that the ICRP response is a complete response to the issues raised above, and in the complaint letters of November and December 2007. In addition, the Society’s employees were available at the hearing and made attempts to explain any decisions taken regarding S.B.(2)’s care. The Society acknowledged that, as S.B.(2) is a Crown Ward, ongoing communication with the B. family is important if they are to collectively help S.B.(2) reach her potential.

36The panel notes that as a result of the ICRP, the Society agreed to refer the file to the centre for treatment of autism for an independent review of S.B.(2)’s care. The Applicant agrees that an independent review needs to take place, and that the centre for treatment of autism is a respected independent organization. However, in order for this independent review to take place, consent forms must be signed by the Applicant and his wife to enable the Society to release its records to the centre for treatment of autism. The Applicant has refused to provide his consent. Without the Society’s records, the centre for treatment of autism will not be able to fully review S.B.(2)’s care, and make recommendations.

37The Applicant explained that he refused to consent, because he believes that the centre for treatment of autism only treats children who are living at home. The Applicant believes that by consenting to the Society’s release of information, he would be ensuring S.B.(2) will not be returned to his care.

38The B. family misunderstand the nature of the centre for treatment of autism assessment being offered to them. This is not an opportunity to review the Court decision placing S.B.(2) with the Society. The only way S.B.(2) could return to her parents care is through an Order of the Court. The Society has offered that the centre for treatment of autism do an independent review of the treatment S.B.(2) is receiving under the Society’s care. The Board understands this to be one of the Applicant’s complaints, and finds that the Society is making a concerted effort to respond to the complaint in this way, and within the confines of the Court Order.

CONCLUSION

39For all of the above-noted reasons, the panel finds the Society has complied with the statutory requirements around its complaint process, and dismisses the complaint.

Walter Rogers

Presiding Member

Ruth Ann Schedlich

Panel Member

Heather Gibbs

Panel Member