CHILD AND FAMILY SERVICES REVIEW BOARD
D.K. v. Family & Children’s Services Niagara
REASONS FOR DECISION
Date: October 21, 2011
Citation: 2011 CFSRB 37
Indexed as: D.K. v. Family & Children’s Services Niagara (CFSA s.68)
1D.K. (the “Applicant”) filed an application on April 13, 2010 with the Child and Family Services Review Board complaining about the Family & Children’s Services Niagara (the “Society”). The application was found to be eligible for review under s.68.1(4) 4 and 68.1(4) 5 of the Child and Family Services Act (the “Act”) on April 20, 2010.
2At the Pre-Hearing teleconference held on June 7, 2010, the Applicant identified nine issues of concern. She alleged that the Society did not listen to or provide explanations to her. The Society challenged the jurisdiction of the Board to review some of these issues and a hearing on jurisdiction was held on July 23, 2010. The application was put on hold pending the appeal of the decision of Children’s Aid Society of Waterloo v. D.D. The decision on the jurisdiction was not issued until July of 2011, after the Court of Appeal for Ontario’s decision in Children’s Aid Society of Waterloo v. D.D. The Child and Family Services Review Board (the “Board”) found in its decision that it had jurisdiction to hear all nine issues in the application. A hearing on the merits was held on August 22, 2011.
3For the reasons that follow, the Board dismisses issue number 1, and finds in favour or the Applicant for issues numbered 2, 3 (in part), 4, 5, and 6.
BACKGROUND
4The Applicant is the mother of the children, [the child], born April […], 2000 and K., born July […], 2002. The Society first became involved with the family in March 2009 when it investigated a report that the father hit the Applicant in the face and was arrested for assault. During this investigation, [the child] disclosed that he was pushed by the father and held to the ground resulting in bruises. [The child] also reported that the father locked him outside in his underwear in the winter. The Society investigated and verified protection concerns. In July of 2009, the Society advised both parents through their lawyers that it did not support access between the father and the children. In December of 2009, the Society reviewed its position and provided the parents’ lawyers with a letter outlining it would support supervised access for the father. Supervised access began in January 2010 for the father in the Society’s offices and then in the home of the paternal grandparents. The access visits were returned to the Society’s offices in February 2010 due to concerns of exposure of the children to parental conflict.
5The Society apprehended the children on March […], 2010. On April […], 2010, the Court ordered that the children be placed in the temporary care and custody of the paternal grandparents subject to interim supervision of the Society and subject to terms and conditions.
6The Applicant is complaining about the safety and care of her children, her treatment by Society workers, and issues concerning her mental status.
ANALYSIS
7The Board must determine whether the Society heard the Applicant and gave her explanations for each of the issues.
8The Board has concluded that the Society did not meet all of its obligations to the Applicant.
9The Board considered the following legislative provisions in the Act in reaching its decision on the merits of the Application:
68.1(4). The following matters may be reviewed by the Board under this section:
(4) Allegations that the society 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.
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 the services they are receiving.
10The Board will address each issue under the headings identified below.
1. Safety of the children during access visits with the father
11The Board finds in favour of the Society regarding this issue.
12The Applicant complained that the Society did not hear her in that it did not look into her allegations of abuse of [the child] by the father. She was concerned about the father’s use of physical discipline and that he would continue to use physical discipline during access visits. She spoke in person and by phone to P.H. [(the Child Protection Worker)] about her concerns. She tried to discuss her concerns with the Society but they said they had no concerns because the father was taking programs such as Partner Assault Response Services, Caring Fathers, Anger Management, and an in-house parenting program. The Applicant complained that initially, the father was not given access, then supervised access was given. No reasons were given to her for the change.
13K.S., Child Protection Supervisor, testified that the Society acknowledged the March 2009 incident of pushing by the father and acted in July 2009 with letters to the lawyers in the custody case respecting the children’s wish not to see the father. Initially the children were living with the Applicant and the father had no access. The Society explained at the time to the Applicant that they are not forcing the father to have access and that the Applicant will ensure the safety of the children and determine access. The Society verified the use of physical discipline and that it was not appropriate. As time went on, the Society was not opposed to access. In December of 2009, letters were sent to the parents’ lawyers advising of the change in the Society’s position and explanations were set out in the letters.
14Later, the father had access, but it was supervised to ensure the safety of the children. The Child Protection Supervisor stated that the Society’s position is that the children were safe during access visits with a society worker there, who could intervene. A safety plan was in place and it was explained to the Applicant. She told the Applicant that they would support supervised access with the father.
15The Child Protection Supervisor also testified about the February […], 2010 case conference in which an experienced independent worker not connected to the file and not on the team, with no knowledge of the Applicant’s file was chosen to investigate concerns relating to the father. This worker spoke to the Applicant on the phone and told her on February […], 2010 that the Society had received a report of concern and that it will be investigated. The report came from a youth counsellor who advised the Society that the child K. said that the father had kicked and hit [the child] while they were playing. The worker interviewed each child separately; however, the children did not disclose anything and the Society continued to support access for the father. The Child Protection Supervisor believed that the Applicant was spoken to by the worker and the results of the investigation explained.
16The Board finds that the Society did listen to the Applicant about her concerns relating to the father and investigated these concerns. In March of 2009, when the Applicant was hit by the father, the Society investigated and verified protection concerns of use of physical discipline on [the child] by the father. The Society investigated again in February of 2010 when there was a report from a youth counsellor, but this report was not verified. The Society was considerate of the Applicant’s safety concerns when it only supported supervised access to the father. A safety plan was in place: a worker was always present, and the visit was at the Society’s offices. The Board is satisfied that the Society heard the Applicant.
17The Board is also satisfied that explanations were provided to the Applicant. In each instance, the Society followed up with the Applicant to let her know what it had concluded and why either by contacting the Applicant or her lawyer. The Applicant disagreed with the Society’s decision to provide supervised access to the father. Initially, the Society respected the children’s wish not to see their father and this position was outlined in the letter of July 2009. The letter of December 2009 outlined the change in position of the Society to provide supervised access. As well, the Society spoke to her about these issues.
18The Board dismisses the complaint for this issue.
2. Safety and care of the children while in the custody and care of their paternal grandparents
19The Board finds in favour of the Applicant with respect to this issue.
20The Applicant complained to P.H., Child Protection Worker that the children were coming for visitations without appropriate clothing when in the care of their paternal grandparents. According to the Applicant, she told the Society that they came in fleece and shorts in freezing weather. Further, her son and daughter were sick and had tick bites. She spoke to the Child Protection Worker who told her that she was “making a mountain out of a mole hill”.
21J.D., Child Protection Supervisor, took over the team from K.S. on April […], 2010. He stated that he was aware of the complaint. He spoke to the Society Worker and decided to answer the Applicant verbally. The Child Protection Supervisor, J.D. did not provide details of his response, but said he would be willing to provide detailed explanations in writing.
22The Board heard the Applicant’s evidence about the Society’s response to her concerns. This evidence was not contradicted. The Board finds that the Society did not present sufficient evidence to show that it heard the Applicant and provided her with explanations. The Child Protection Worker’s response to the Applicant suggests that she minimized the concern, brushing it off. This is indicative of not hearing the concern. Although there was eventually follow up, the witness could not provide the Board with details of what the follow up was. This is insufficient for the Board to determine that the Applicant was given a detailed explanation about what steps, if any, the Society took and why or why not. The Board makes an order below, requiring the Society to provide written explanations for the Applicant’s concerns about the care the children were receiving while in the care of the paternal grandparents.
3. Mistreatment by Society Workers
23The Board finds in favour of the Applicant, in part with respect to this issue.
24The Applicant complained of mistreatment by the Society. She alleged that a Society worker has verbally “battered” her, that Society workers have accused her of wanting to kill her children, coached the father on how to entrap her, and breached her confidentiality.
25The Applicant complained that Child Protection Worker, P.H. verbally “battered” her and made comments to her such as “I’m not paid to be nice”. She also alleged that the Child Protection Worker said that the father would not be abusive as long as he was not with the Applicant.
26Child Protection Supervisor, K.S. testified that she raised the issue with the worker who denied the allegations and gave specific information about meetings with the Applicant. The Child Protection Supervisor was satisfied from her discussions with the worker and observations of the interactions between the Applicant and the worker that the mistreatment was not occurring. The Child Protection Supervisor stated that the worker has challenged some of the things the Applicant has been saying and the Applicant has not agreed. There was no evidence of follow up with the Applicant.
27Considering that the Society did not provide evidence to show that it provided explanations to the Applicant about its decision regarding the Child Protection Worker, the Board orders written reasons be given to the Applicant for the above complaint.
28The Applicant alleged that in a meeting with the Family Services Supervisor and Child Protection Worker, J.K., and her mother, they vehemently accused her of wanting to kill her children. The Applicant denied it each time. L.K., the Applicant’s mother who was present at the meeting, testified that the Family Services Supervisor introduced herself and said, you are going to kill your children while banging on the table. The Applicant stated that in a meeting in December of 2009 with the Family Services Supervisor and Child Protection Worker, J.K., she was only joking and mocking the worker when she talked about killing herself.
29The Board accepts the evidence of the Applicant that the Society workers made accusations that she would kill her children. The Society workers were not present to testify to the contrary. The Society did not provide evidence that reasons were given to the Applicant to explain why they made the decision that she was going to kill her children and therefore, orders the Society to provide written reasons.
30The Applicant alleged that the Society was coaching the father on how to entrap her. She alleged that in a meeting held on October […], 2009 and attended by Child Protection Worker, J.K., her brother and ex-husband, Child Protection Supervisor, K.S. advised the father that it is hard to prove emotional abuse and asked him to phone in often and with professional reports on the Applicant. The Applicant was not in attendance at this meeting.
31As to the October […], 2009 meeting, the Child Protection Supervisor stated that the father had requested the meeting over concerns of the Applicant caring for the children alone. The Applicant’s brother also spoke of his concerns regarding the Applicant. The Child Protection Supervisor stated that she spoke to them in the same way as to anyone with child protection concerns, to report events as they are happening rather than report on events several months later. Her comments were not meant to entrap the Applicant but were comments she would make to anyone reporting concerns.
32It is not clear to the Board that the Child Protection Supervisor gave an explanation to the Applicant regarding this complaint; however, the Board considers that the explanation given by the Supervisor during the hearing to be adequate and no written reasons are ordered for this complaint.
33The Applicant complained that the Society (K.S. and J.K.) breached her confidentiality when they contacted health care professionals for information about her and that they went to the school and said that she is mentally ill. She alleged that the Society released information to the school that she was suicidal. The Applicant introduced a case note of January […], 2010, which showed that in a conversation with the principal of the children’s school, Child Protection Worker, J.K. indicated concern about her stability to the school.
34The Child Protection Supervisor, K.S. had no recollection of any concerns raised by the Applicant about the conversation with the school principal. She testified that she never communicated with the school principal or gave information to the school.
35[T]he Applicant’s father, testified that he went to the Society to offer a kinship fostering proposal on March […], 2010 and met with the Child Protection Supervisor, K.S.. The children’s father called later that evening and said he wanted to talk about the kinship application. The Applicant’s father thought that the application was confidential and wondered how the father knew about it so quickly.
36The Child Protection Supervisor, K.S. stated that she did not release information about the kinship plan to the father. There was also an ongoing legal process where disclosure was allowed between both parties and the Society.
37The Board considered the evidence that the Applicant admitted that she signed a consent for the Society to contact collaterals. However, it is not clear that she understood that her mental health would be the subject of conversation with the school. In that regard, there was no evidence that she was consulted about this or advised that a decision had been made to discuss her mental health. The Board finds that there was no explanation given as to why Child Protection Worker, J.K. expressed concern about the stability of the Applicant to the school principal. That she did so is supported by the case note of which her supervisor had no knowledge. The Board orders the Society to provide written reasons to the Applicant as to why it addressed mental health issues with the principal.
38The Board accepts the evidence of Child Protection Supervisor, K.S. that she did not release information about the kinship plan and no explanation is required on that matter.
39The Society failed to meet its obligations to the Applicant under the Act respecting her treatment by the worker, P.S., the decision forming the basis for the comments about killing the children, discussions with the father and the decision to discuss the Applicant’s mental status with the school. For all other matters relating to allegations of mistreatment by society personnel, the Society met its obligations to the Applicant.
4. Applicant’s Mental Status
40The issue for the Board is whether the Society heard the Applicant when considering whether she had mental health concerns. This would include whether the Society considered information offered by her and her professionals. The second issue for the Board is whether the Society provided the Applicant with reasons for its decisions about her mental health.
41The Applicant alleged that the Society has not listened to her about her mental health and has portrayed her as having a mental illness. She alleged that the Society discounted the report of Dr. K. which said that she was stable. Only Dr. S. has suggested that she has a mental illness. She claimed that there is no basis to suggest that she has a mental illness and that no explanation has been given to her as to why the Society believes she has a mental illness.
42The Society countered that Dr. S.’s report was court ordered, that the Applicant had a lawyer and that Dr. S. was appointed on consent.
43Child Protection Supervisor, K.S. testified that other service providers called with concerns of the Applicant’s mental health. There were reports from the Family Counselling Centre, family members and observations of her behaviour and presentation from workers. The Applicant made concerning statements about killing herself. The assigned worker went with a supervisor to visit the Applicant and the worker was directed to call 911 to have medical services assess her. They requested the Applicant’s mother stay with her for support and for concerns of her mental health. The Society also requested a mental health assessment and received a report from Dr. K. which said that she was stable and that there were no concerns of her mental health. As a result of receiving this report, the Society felt at the time that this was sufficient and told the Applicant that the mother no longer needed to reside with her.
44Child Protection Supervisor, K.S. testified that the Society intervened and removed the children from the Applicant’s care on March […], 2010 because the school had called regarding the Applicant’s presentation which was unstable. The Society was concerned about the emotional well-being of the children.
45The Applicant’s point is that the information from her and her doctor were not taken into account in the Society’s conclusions about her mental health. The Society offered evidence to the Board to back up its decisions but not to address the extent to which it considered the Applicant’s input or perspective.
46The Board finds that the Society did not present sufficient evidence to show that it had heard the Applicant in its decision-making regarding her mental health or that it had provided reasons to the Applicant on their decisions. The Board orders the Society to give written reasons to the Applicant on their decisions regarding her mental health.
5. Society was dismissive of the Applicant’s being a victim of spousal abuse and has not assigned an abuse counsellor to support her.
47The Board finds in favour of the Applicant regarding her complaint about the Society’s response to her being a victim of spousal abuse.
48The Applicant testified that she has suffered severe abuse and lived in pain. She said that the children’s father had admitted to throwing her into the drywall. The father said that the injuries were from a car accident but the doctors say it was from something more recent. According to her, the Society has not heard her because it has not offered her supports and has been dismissive of her abuse. She wanted an abuse advocate and raised the issue with Child Protection Worker, J.K. and Child Protection Worker, P.H., and did not get a response.
49Child Protection Supervisor, K.S. stated that the Domestic Violence Advocate only works with the intake team on a short term involvement to connect the person with community services to address domestic violence. Her evidence was that the Applicant did not ask her for a Domestic Violence Advocate or share her concern that the workers had not responded. The Applicant was connected with [Organization] for victims of domestic violence. The concern of the Society being dismissive of spousal abuse was not raised with her.
50The Society claimed that it has not been dismissive of her abuse, but the Applicant just does not like the Society’s response.
51The Society heard the Applicant in part because as a victim of domestic violence, they facilitated a referral to [Organization] and thus did not ignore her status. However, they did not explain the process regarding the Domestic Violence Advocate and did not get back to her when she made a request for one. This means that they did not fully hear her when decisions were made about what resources she would be assigned, nor did they provide the Applicant with an explanation for not assigning her the worker requested.
52The Board orders the Society to provide written reasons to the Applicant as to why a domestic violence advocate was not assigned to her.
6. The Applicant’s concerns about nude photos of children posted on the internet by their father.
53The Board finds that the Society did not provide the Applicant with reasons for its decision regarding the nude photos.
54The Applicant alleged that the father posted nude pictures of the children on a social network site and that she raised the concern with the Society. In June of 2009, Child Protection Worker, J.K. came to the house to look at the pictures, but the computer, according to the Applicant, was at the store being analysed. She claimed that the Society dismissed her concerns. She further alleged that a Society worker said she was “arranging for a pedophile to have access to the children”.
55The Society denied that a worker made the above statement.
56Child Protection Supervisor, K.S. stated that the Applicant did not raise the issue of the nude photos with her. She was aware that the father was allowing open access to “My Space” but she was not aware of the content.
57Child Protection Supervisor, J.D. testified that he did see a copy of a piece of paper with pictures of children in the bath tub. In the corner he noted that it had “c/drive” on it, indicating that it was printed from a personal computer and not from a website. He made the determination that the pictures were innocuous and advised the Society worker that the pictures were not posted on the internet. He determined that the photos were not a child protection concern. He believes that the Society worker told the Applicant. The worker did not testify as to what she told the Applicant.
58It was not clear from the evidence that the Society gave a full explanation to the Applicant on the issue of the nude photos. It appears that an investigation was not done. There is no evidence as to what the Applicant was told about the decision not to investigate or about the decision reached by the Child Protection Supervisor, J.D.. The Board orders the Society to provide a detailed written explanation of the steps taken, including the decision not to investigate and the decisions the Society made about the nude photos.
CONCLUSION
59The Board dismisses issue numbered 1.
60The Board finds in favour of the Applicant in relation to issues numbered 2, 3 (in part), 4, 5, and 6.
61The Board orders the Society to provide detailed written reasons within 30 days of the date of the Board’s decision for the following:
- Issue 2: responding to the Applicant’s concerns about the care the children were receiving while in the care of the paternal grandparents.
- Issue 3: responding to the Applicant’s concerns with the Child Protection Worker, P.H., explaining why Society Workers made the decision that the Applicant wanted to kill her children, and explaining why Child Protection Worker, J.K. expressed concern about the stability of the Applicant to the school principal.
- Issue 4: setting out the decisions made regarding and relating to the Applicant’s mental health and the reasons for those decisions.
- Issue 5: explaining why a domestic violence advocate was not assigned to the Applicant.
- Issue 6: responding to the Applicant’s concerns about the nude pictures, including reasons for the decision not to investigate (or to investigate) with reference to the Eligibility Spectrum and the Child Protection Standards in Ontario and the reasons for the conclusion reached by the worker.
Heather Hunter
Panel Member
Mary Wong Panel Member
Dated in Toronto, Ontario on the 21st day of October, 2011.