S.B. v. Jewish Child and Family Services, 2011 CFSRB 42

CHILD AND FAMILY SERVICES REVIEW BOARD

S.B.

v.

Jewish Child and Family Services

REASONS FOR DECISION

Date: November 24, 2011

Citation: 2011 CFSRB 42

Indexed as: S.B. v. Jewish Child and Family Services (CFSA s.68)

1S.B. (the “Applicant”) filed an application on August 11, 2010 with the Child and Family Services Review Board (“the Board”) complaining about the Jewish Child and Family Services (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 August 18, 2010.

2At the pre-hearing teleconference held on October 7, 2011, the Applicant identified seven issues of concern. She alleged that the Society did not listen to or provide explanations to her. 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. A hearing on the merits was held on November 2, 2011.

3For the reasons that follow, the Board dismisses issues numbered 4, 6 and 7 and finds in favour of the Applicant for issues numbered 1, 2, 3, and 5.

BACKGROUND

4The Applicant is the maternal grandmother of the children, AJ, born October […], 1997 and [the child], born December […], 1995. The children were in the care of the Applicant and came into the care of the Society on the consent of the Applicant. In 2009 the Society commenced a child protection application. The complaint by the Applicant is primarily in regard to concerns relating to one of the children, namely [the child].

5The Applicant’s complaint relates to the placement of [the child], her treatment by the Society, issues concerning [the child’s] alleged drug use and his school attendance.

ANALYSIS

6The Board must determine whether the Society heard the Applicant and gave her explanations for each of the issues.

7The Board has concluded that the Society did not meet all of its obligations to the Applicant.

8The 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.

9The Board will address some of the issues together since they relate to the same complaint and some of the issues separately under the headings identified below.

Issues 1 and 3. Placement of [the child] in a non-Jewish foster home

10The Board finds in favour of the Applicant regarding this issue.

11The Applicant raised two concerns related to placement in a non-Jewish home. The first complaint was that the Society did not hear her when the decision was made, and when she raised concerns about this issue. Further, she alleges that the Society failed to provide her with an explanation as to why [the child] was placed in a non-Jewish home. The second concern was that the Society failed to provide her with an explanation as to why it failed to consider an alternate placement proposed by her Rabbi.

12The Applicant and her grandson [the child] are Jewish and [the child] had his bar mitzvah at age 13. He came into the care of the Society shortly after this and the Applicant strongly believed that it was important that he be given the opportunity to continue to practice his faith with ease, once he came into the care of the Society. The Applicant was particularly concerned that [the child] had been placed in a foster home that was not only non-Jewish, but was Christian and the foster mother, [foster mother], attended church on a regular basis. She enlisted the support of her Rabbi to find a Jewish home and she testified that the Rabbi contacted the Society to inform it that he had a home available in a Jewish orthodox neighbourhood in [City]. The Applicant alleged that the Society refused to listen to the suggestions offered by the Rabbi on her behalf.

13Rabbi S. testified on behalf of the Applicant regarding this issue. Rabbi S. had attended most of the meetings that the Applicant had with the Society. He confirmed that [the child] had told him that he was unable to do his “bar mitzvah stuff” while residing in the care of [foster mother]. He also stated that he had written to the Society and urged it to place [the child] in a Jewish home. Furthermore, the Applicant’s Rabbi had told this witness that he had a Jewish home for [the child].

14Counsel for the Society during cross-examination and in his closing summary, suggested that a number of Society employees listened to the Applicant’s concern regarding the placement of [the child]. He stated that the Society was unable to find a Jewish treatment foster home for [the child] and that the foster home it did place him in was a treatment foster home designed to meet his needs. The Applicant denied that she had ever been told by the Society that the home [the child] was placed in was a treatment foster home. Counsel for the Society further stated that the Rabbi had contacted the Society to say that he was prepared to look for a Jewish home for [the child], but did not say that he had found one. The Society called no witnesses to testify about this issue.

15Although counsel for the Society provided an explanation to the Board, the Society did not call any witnesses to testify regarding the issue of placement. Therefore, the Board has no evidence to rely upon with respect to who spoke to the Applicant on what dates and what was conveyed to her by way of an explanation regarding the placement of her grandson in a non-Jewish foster home.

16The Board had only the evidence of the Applicant and the Rabbi. It had no direct evidence from the Society to demonstrate that it had heard the Applicant in its decision-making regarding placement, or that it had provided reasons to the Applicant on its decisions. The Board therefore orders the Society to give written reasons to the Applicant why [the child] was placed in a non-Jewish home, including an explanation of the efforts that it made to find a Jewish foster home for [the child] as set out below.

Issue 2. Removal of [the child] from the hospital by a Society worker

17The Board finds in favour of the Applicant with respect to this issue.

18The Applicant’s grandson had phoned her sometime in May of 2009 complaining about abuse he had suffered in the foster home. She picked him up and observed ligature marks on his neck and bruises and took him to a local hospital to be examined and treated. The Applicant testified that [the child’s] worker had instructed a family acquaintance, EM, to take [the child] from the hospital before a doctor had examined him.

19Counsel for the Society during cross examination of the Applicant and in his closing summary, stated that [the child] had phoned his worker and asked her to come and get him because the Applicant and his maternal aunt were arguing in the hospital. He further stated that the foster mother did not believe it was necessary for [the child] to be taken to the hospital, nor was there a hospital record to suggest that the Applicant had been at the hospital. The Society called no witnesses to testify about this issue.

20The Board heard the Applicant’s evidence that her grandson had phoned to tell her that he had been abused by other boys in the foster home and that she took him to the hospital. The Board also heard from counsel for the Society that the child’s worker received a call from [the child] from the hospital and delegated a family acquaintance to pick him up and return him to the foster home. The Board finds it reasonable to conclude that [the child] attended at the hospital and that the Applicant was also there. The Board has no evidence to rely upon with respect to what series of events led to the removal of [the child] from the hospital and the reasons for any actions taken by the Society in this regard, including actions related to the allegations of abuse.

21The Society did not present evidence to counter that of the Applicant. There was no evidence to demonstrate that the Society had provided reasons to the Applicant for the actions taken in the removal of [the child] from the hospital, including any actions taken related to the allegations of abuse. The Board orders the Society to give written reasons to the Applicant why [the child] was removed from the hospital, including an explanation of the steps it took to address the allegations of abuse and medical needs arising from the alleged abuse.

Issue 4. Participation in treatment

22The Board finds in favour of the Society with respect to this issue.

23The Applicant complained that she requested that she be allowed to attend treatment meetings with [the child] to facilitate reunification. [The child] was participating in weekly sessions with a psychologist and the Applicant believed that it would be important for her to be involved as well. She spoke with [the child’s] worker about this, but not the therapist. The worker informed her that it was up to [the child] whether she attended. The Applicant alleged that she was not allowed to attend these sessions during the time [the child] was in the care of the foster mother [ ].

24During cross examination, the Applicant agreed she had been informed that her participation in treatment sessions was important for successful reunification, but that at the time, [the child] was not prepared to work together with her. The Applicant also agreed that more recently, she had been asked to be part of treatment sessions with Dr. C. and was given contact information for him by the Society. She stated that there were a number of reasons why she was unable to participate at the time, which included her own medical situation and payment for her participation in treatment sessions.

25The Board heard from the Applicant through her direct testimony and in cross examination by Society counsel, that she had been informed by Society staff that her participation in treatment sessions with her grandson would be beneficial and had been provided with the contact information to initiate involvement. The Board heard evidence from the Applicant that the reasons that prevented her participation were her grandson’s unwillingness to do so as well reasons related to her own medical situation and payment. The Board concludes that the Society did not refuse to allow the Applicant to participate in treatment sessions with her grandson. Therefore, the Society had no grounds for providing the Applicant with reasons why it did not allow her to participate in treatment sessions.

26The Board dismisses this part of the complaint.

Issue 5. Drug testing for [the child]

27The Board finds in favour of the Applicant with respect to this issue.

28The Applicant complained that she had knowledge that [the child] was using drugs and selling his possessions to pay for drugs. She stated that the Society had knowledge of this as well since [the child] had been suspended from school as a result of his drug involvement and the school had contacted the Society. She alleged that she had informed both the child’s worker and the foster mother, [ ], of her concerns and that nothing was done about it during the time he was in the care of [foster mother]. She further complained that she had told the worker that [the child] needed to be drug tested and needed to be in a treatment setting to deal with his drug use. She testified that she spoke with at least two Society workers about her concerns and although one of them said that she would help, no action was taken.

29Counsel for the Society during cross examination of the Applicant and in his closing summary, suggested that [the child] was not drug tested because he would not consent to such testing and that the Applicant had been made aware of this. The Applicant denied any such knowledge. The Society called no witnesses to testify about this issue.

30The Board heard the Applicant’s concerns regarding the use of drugs by [the child] and the need to investigate it further through testing and for possible treatment. The Board also heard that the Applicant had made her concerns known to Society staff and no actions were taken. The Board did not hear any evidence from the Society regarding any knowledge it may have had about the use of drugs by a child in its care and the actions it took regarding these concerns. Finally, the Board did not hear any evidence from the Society about how it responded to the concerns of the Applicant regarding the possible use of drugs by [the child].

31Without testimony from the Society, the Board accepts the Applicant’s evidence. The Society did not present evidence to the contrary, to show that that it had provided an account to the Applicant about the knowledge that it had of the possible drug use by [the child], about the actions that it took in response to this knowledge and the reasons why it took the actions that it took. The Board orders the Society to give a written explanation to the Applicant about its knowledge of drug use by [the child] and any actions it took in response to that information and the reasons for its actions.

Issue 6. Comments made about the Applicant

32The Board finds in favour of the Society with respect to this issue.

33The Applicant complained that the Society failed to provide an explanation for not acting on the concern about disrespectful comments made about the Applicant in front of her grandchildren. Her basis for this complaint was threefold. First, her grandson made a comment during a court proceeding at which the Applicant was present, namely, “I ([the child]) am not coming home because the Society said that you are not mentally well”. Secondly, her granddaughter stated to her that she didn’t have to listen to the Applicant if she didn’t want to do something and she was directed to say this by a Society worker. Thirdly, the judge during the same court proceeding mentioned previously, made the statement to [the child] that “we all know your grandma is a little crazy”.

34The Society did not call any witnesses on this issue nor did counsel address it during cross-examination of the Applicant. The Applicant did not indicate that she had raised these concerns with a Society worker, nor did the Board hear from any other witnesses on the issue. The Board is not satisfied that the Society was aware that these statements had allegedly been made, or that the Applicant had concerns about them. The Society cannot be expected to respond to concerns that were not raised.

35The Board dismisses this issue.

Issue 7. [The child’s] absenteeism from school

36The Board finds in favour of the Society with respect to this issue.

37The Applicant complained that the Society failed to provide an explanation to the Applicant for not acting on her concern about her grandson’s absenteeism from school and how that time would be made up in his treatment plan. The Applicant had become aware that [the child] had missed 120 hours of class time and immediately notified the Society. Once [the child] was moved from the foster home to [Treatment Centre], the Applicant asked that the missed school time be made up. The Applicant stated that she had spoken with the child’s worker and was told that she would take care of it.

38Counsel for the Society during cross-examination of the Applicant and in his closing summary, asserted that the Applicant had had discussions with [Treatment Centre] about dealing with making up the lost time. The Applicant agreed that she was present at such a meeting to discuss [the child’s] school absence. The Society called no witnesses on this issue.

39The Board heard from the Applicant, that she had participated in a meeting with her grandson’s treatment team and discussed a plan for her grandson to make up missed class time. The treatment team was taking direction from the Society, as the legal guardian of [the child]. The Board did not have sufficient evidence to conclude that there were any other concerns related to this issue other than the concern that the lost time be made up. The Board concluded that a process had taken place to ensure that the Applicant was heard regarding her concerns about [the child] making up the lost time and therefore there are no grounds for the complaint regarding this issue.

40The Board dismisses this part of the complaint.

CONCLUSION

41The Board dismisses issues numbered 4, 6 and 7.

42The Board finds in favour of the Applicant in relation to issues numbered 1, 2, 3 and 5.

43The Board orders the Society to provide detailed written reasons within 30 days of the date of the Board’s decision as set out in the following orders:

a) Issues 1 and 3: The Board orders the Society to give written reasons to the Applicant why [the child] was placed in a non-Jewish home, including an explanation of the efforts that it made to find a Jewish foster home for [the child] with reference to its discussions with the Rabbi.

b) Issue 2: The Board orders the Society to give written reasons to the Applicant why [the child] was removed from the hospital, including an explanation of the steps it took to address the allegations of abuse and medical needs arising from the alleged abuse.

c) Issue 5: The Board orders the Society to give a written explanation to the Applicant about its knowledge of drug use by [the child] and any actions it took in response to that information and the reasons for its actions.

Richard Linley

Presiding Member

Mary Wong Board Member

Gail Gonda

Board Member