D.C. v. Dilico Anishinabek Family Care, 2009 CFSRB 74

CHILD AND FAMILY SERVICES REVIEW BOARD

D.C.

v.

Dilico Anishinabek Family Care

REASONS FOR DECISION ON MERITS

Date: November 30, 2009

Citation: 2009 CFSRB 74

Indexed as: D.C. v. Dilico Anishinabek Family Care (CFSA s.36)

INTRODUCTION

1D.C. (the “Applicant”) filed an application under section 36 of the Child and Family Services Act (the “Act”) to the Child and Family Services Review Board (the “Board”) for a review of his residential placement at the [the Facility] in [City E], Ontario (“[the Facility]”). The Applicant was placed at [the Facility] by Dilico Anishinabek Family Care (the “Society”) on May […], 2009. The Applicant’s placement at [the Facility] was reviewed by the Residential Placement Advisory Committee North Region (“RPAC”) on July […], 2009 and recommendations were made.

2Pursuant to section 36(1) of the Act, a child who is twelve years of age or older and lives in a residential placement that he objects to can apply to the Board for a determination of where he or she should remain or be placed if the child has had an advisory committee review and is dissatisfied with the committee’s recommendation. The Board must conduct a review and having done so, may:

36(6)(a) order that the child be transferred to another residential placement, if the Board is satisfied that the other residential placement is available;

(b) order that the child be discharged from residential placement; or

(c) confirm the existing placement.

3The Applicant filed his application to the Board on August 13, 2009. The Applicant objects to his placement at [the Facility] because he wants to be closer to his home in [City A], has had problems with both staff and peers at [the Facility], has not had access to independent activities and medical treatment, and the RPAC recommendations have not been implemented.

4The Society believes that given the Applicant’s high needs, [the Facility] is the most appropriate placement for him.

5The Board delayed scheduling the hearing, on the consent of both parties, to give them the opportunity to resolve the application. The parties were unable to reach an agreement and the hearing took place on October 7, 2009.

6During the hearing, the Society did not present any evidence on possible alternative placements for the Applicant. The Board is required to consider alternative placements when making its decision under section 36(6) of the Act. As such, by letter dated October 16, 2009, the Board requested written submissions from the parties on three specific placements. The parties were asked to comment on the availability and appropriateness of the three placements and whether they had an Aboriginal component to their programming.

7The parties provided their submissions on October 27, 2009. The Society advised the Board that it had contacted the three alternative placements and none were available for the Applicant. Two of the placements were not available because the Applicant was over the age of twelve. The remaining placement did not have any available beds. The Applicant indicated he would like more information on the programs at the placements if they were available. He repeated his request to be closer to home.

8The Board believes that the Applicant’s needs are such that he requires a residential placement at this time. The Board is deeply concerned about the lack of support that [the Facility] has provided to the Applicant to date. Given the fact that there are no other residential placements available for the Applicant at this time, the Board confirms the Applicant’s existing placement at [the Facility]. The Board recommends that a more appropriate residential placement be identified for the Applicant as soon as possible and that he remain at [the Facility] for no more than three additional months. The reasons for the Board’s decision follow.

BACKGROUND

9The Applicant was born February […], 1995. He was fourteen years of age at the time of the hearing. The Applicant self-identifies as Aboriginal.

10On September […], 2006, the Applicant was placed into the care of the Society, on a long-term customary care agreement, because of parent-child conflict. He has had approximately fourteen placements since that time. These placements included a staffed home, group homes, treatment homes, foster homes, out of town placements, and home support/family counselling to enable him to return to his biological home. Some of his earlier placements lasted only a matter of weeks. His most recent placements at the [Centre] in [City A] and [ X ] in [City B] (a therapeutic foster home) lasted thirteen months and eleven months respectively.

11The Applicant has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) with Conduct Disorder, attachment issues, moderate ongoing stressors and past chaotic family life. The Applicant’s mother is struggling with mental health issues. The Society believes she may have Borderline Personality Disorder. She has a history of drug and alcohol abuse. The Applicant’s mother currently lives in [City D]. The Applicant’s father, who lives in [City A], has engaged in significant substance abuse in the past. Various members of the Applicant’s family have experienced depression, and there is a history of abuse issues in the home environment.

12The Applicant was moved from his placement at [the Centre] and transferred to [the Facility] because it did not provide sufficient security to meet his needs. He ran away from [the Centre] on two occasions. While out in the community, he was involved in street and prescription drug use, sharing needles, and used cocaine and other unidentified drugs. The Society was concerned that the Applicant was being taken advantage of sexually. A decision was made by the Society to keep the Applicant safe and provide him with treatment by placing him at [the Facility]. The Society believed [the Facility] would offer the Applicant good programming, safety and stabilization.

13The Society states there are no suitable placements for the Applicant in [City A]. The Society believes the Applicant needs to be in a place where he is safe from harming himself and others, and away from drug use. The Society feels the Applicant requires close supervision, consistency, structure and monitoring of his mental health condition and his medications. Safety is the Society’s first priority for the Applicant.

14The Applicant was placed at [the Facility] on May […], 2009. He was originally placed at [ Y ], a more community-based setting at [the Facility]. On July […], 2009, the Applicant was placed in the main house where there is more staff and structure. The Applicant attends school on site. At the time of the hearing, the Applicant resided at the main house at [the Facility].

ANALYSIS

15According to subsection 1(1), the most important purpose of the Act is to promote the best interests, protection and well being of children. Other relevant purposes of the Act described in subsection 1(2)(3) include recognition that children’s services should be provided in a manner that:

(i) respects a child’s need for continuity of care and for stable relationships within a family and cultural environment,

(ii) takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,

(iii) provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and

(iv) includes the participation of a child, his or her parents and relatives and members of the child’s extended family and community, where appropriate.

16The Act also recognizes that services should be provided to Native children that recognize their culture, heritage and traditions. This is reflected in section 1(5) of the Act which reads as follows:

1(5) … Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.

17The Act also describes the factors that must be considered by a society when choosing a residential placement. These factors are set out in section 61(2) which states:

61(2) The society having care of a child shall choose a residential placement that,

(a) represents the least restrictive alternative for the child;

(b) where possible, respects the religious faith, if any, in which the child is being raised;

(c) where possible, respects the child’s linguistic and cultural heritage;

(d) where the child is an Indian or a native person, is with a member of the child’s extended family, a member of the child’s band or native community or another Indian or native family, if possible; and

(e) takes into account the child’s wishes, if they can be reasonably ascertained, and the wishes of any parent who is entitled to access to the child.

18The Board took into account these provisions of the Act as informing its determination of what placement was in the Applicant’s best interests. In particular, the Board considered the following individual factors set out in subsection 1(2)(3) of the Act.

(a) Family Relationships

19The Applicant would like to be closer to his family. He understands that he cannot live with his father because of his drug use, but would like to live with his sister and her two children in [City A]. If the Applicant cannot live with his sister, he would like to live with his aunt in [City A]. Alternatively, the Applicant would like to live with his mother in [City C].

20At the time the Applicant was transferred to [the Facility], he was running away from his placement at [the Centre] and was involved in street and prescription drug use. The Society was concerned about his safety and did not know where he was sleeping. The Society made the decision to keep him safe and give him treatment by sending him to [the Facility]. The Society believes the Applicant requires a secure treatment centre and no such facility is available in [City A].

21The Society understands that the Applicant wants a home and a family. It knows the Applicant does not care if it is a foster home or a therapeutic treatment home. The Society wants the same thing for the Applicant, when he is ready. At this time, the Society does not believe the Applicant’s behaviours are manageable in a therapeutic home and it does not think the Applicant is ready to live with his sister or his aunt in [City A].

22The Society believes the Applicant’s placement at [the Facility] is short-term. It would like to see the Applicant placed in a long-term home with foster parents. The Society predicted the Applicant might spend a total of nine months at [the Facility], depending on how he is progressing and his treatment goals.

(b) Physical and Emotional Health

23The Applicant has been diagnosed with ADHD, “heading” to Oppositional Defiance Disorder (“ODD”) and Conduct Disorder. These diagnoses may be linked to his difficulty with developing healthy coping skills, his many placement breakdowns and his difficulty in appropriate problem solving skills. ADHD is linked to his impulsivity. Family modeling of alcohol and drug abuse is directly linked to his history of experimenting with substances.

24The Applicant has been prescribed different medications to control his behaviour, including Ritalin, Concerta, Celexa and Risperidone. He was on Risperidone when he arrived at [the Facility]. This medication was discontinued and he was subsequently placed on Ceriqual to help with his agitation.

25The Applicant has engaged in self-harm since his admission to [the Facility]. He has pierced his tongue, scratched his neck and threatened to harm himself. The Applicant has punched holes in the wall, threatened to tear out insulation and eat it, pulled out electrical wires and put medication into the heating vents in the floor.

26[the Facility] has set the following goals for the Applicant to meet:

(a) Flexibility and resourcefulness in coping and the elimination of self-harming and abusive behaviours;

(b) Elimination of substance abuse behaviours;

(c) Settle into the [the Facility] program.

27At the time of the Board hearing, [the Facility] had not provided any individual programming to help the Applicant meet these goals. The Board was advised that the Applicant would be able to attend a social skills group to address his self-harming behaviour, although no date was given as to when it would start. The Board was further advised that the Applicant would start a substance abuse program on October […], 2009. As far as settling into [the Facility], it appears that the expectation was that with time, the Applicant would adjust to the intense structure at [the Facility]. There did not appear to be any specific supports in place to help with this adjustment with the exception of weekly meetings with the clinician at [the Facility]. At the time of the hearing before the Board, the Applicant had not received any individual programming even though he had been at [the Facility] for almost five months.

(c) Cultural

28There is no specific training provided to staff on the importance of Aboriginal programming for native residents. Cultural information is obtained from the internet. One day a month, [the Facility] has a Cultural Day where meals specific to that culture are served. A map is posted where residents can identify their culture. There are no staff members at the main house who are Aboriginal.

29[the Facility] has a native program called [Native Program]. It is about twenty to thirty minutes away from the main house. [the Facility] has not taken any steps to make the programming at [Native Program] available to the Applicant. The clinician at [the Facility] acknowledged that the Applicant would benefit from the program at [Native Program], but there was a wait time of a minimum of six months.

(d) Conclusion

30The Applicant requires clear future planning while in care. He needs counselling to help him cope with the stress that he experiences and medication to control his impulsive behaviour. He requires a nurturing environment that keeps him safe and doesn’t put him at risk. Equally important, the Applicant must live in an environment where his cultural needs are met. He also requires a highly individualized program that includes the ability to socialize through activities. He has been denied access to art supplies and music lessons even though they had both been recommended by RPAC.

31To date, [the Facility] has not met the Applicant’s needs. [the Facility] has provided a safe environment by locking the Applicant in. While [the Facility] has monitored the Applicant’s medication, it has done very little in terms of teaching him coping skills. At the time of the hearing, [the Facility] had not provided any substance abuse counselling and very little one-on-one counselling. [the Facility] had provided no individual programming. There was no clear future planning and no cultural component to his placement. [The Facility] established a set of rules for the Applicant to obey without providing him with the necessary supports to facilitate his ability to comply. Instead, it responded to his needs in a very negative way. Services were provided only when earned as privileges and not as part of essential programming. Based on the evidence before it, the Board finds that [the Facility] is not meeting the Applicant’s physical, emotional and cultural needs.

DECISION

32Notwithstanding the deficiencies in the care provided by [the Facility], the Board agrees with the Society that at this time, the Applicant requires residential care. He needs to be away from the triggers that cause him to engage in self-destructive behaviours, he needs to be safe and in an environment that allows him to work on the issues that have resulted in many placement breakdowns, including his substance abuse. The Applicant cannot live with his family at this time because his needs are too great and the triggers are in [City A].

33The Board’s remedial powers are prescribed in the Act. It can confirm the existing placement, discharge the Applicant from residential care or transfer the Applicant to another residential placement, if available. There are no other residential placements available for the Applicant at this time. Because of the Board’s finding that the Applicant requires residential care, the Board has no option other than to confirm the Applicant’s existing placement.

RECOMMENDATIONS

34The Applicant’s placement at [the Facility] was reviewed by RPAC and the following recommendations were made:

b) the Society complete a full review of the Applicant’s placement;

c) the Society take the Applicant’s case to the Ministry of Children and Youth’s Case Resolution Process;

d) [the Facility] investigates the Applicant’s harassment allegations;

e) [the Facility] and the Society make available art supplies, a saxophone and a place for the Applicant to “work out”;

f) [the Facility] move the Applicant to a room that is close to staff to monitor other residents who may be harassing him;

g) [the Facility] allow the Applicant to earn back privileges so that he can participate in independent activities. The thirty day confinement consequence imposed by [the Facility] did not give the Applicant a chance to have the social and recreational outlets that he needs;

h) [the Facility] and the Society provide a one-to-one support worker that the Applicant feels comfortable with; and

i) [the Facility] continues to provide counselling.

36The Board is concerned about the failure of the Society and [the Facility] to implement many of these recommendations. The Board agrees with the RPAC findings that the Applicant requires specific supports in his placement at [the Facility]. The Board therefore repeats many of the RPAC recommendations and recommends that that the Applicant be transitioned to a therapeutic foster home as soon as possible. The Board recommends:

1. That the Society stabilize the Applicant in his current placement and transition him as soon as possible to a therapeutic foster home with the additional necessary resources. The therapeutic foster home should be near the Applicant’s family in [City A]. This transfer should take place within three months of the date of this decision. The therapeutic foster home must have access to cultural Aboriginal programming.

2. During the next three months, [the Facility] should provide the following supports to the Applicant:

(a) cultural programming;

(b) art supplies;

(c) saxophone and saxophone lessons;

(d) access to a physical fitness facility;

(e) drug and alcohol counselling;

(f) individual counselling.

37Many of the recommendations set out in subparagraph 2 above are outstanding from July […], 2009, the date of RPAC report. It is in the Applicant’s best interests that these services become part of his individual programming as soon as possible.

Jennifer Scott

Presiding Member

Frances Sanderson

Panel Member

Alina Lazor

Panel Member