N.B. v. Family and Children’s Services of Guelph and Wellington County, 2012 CFSRB 33

CHILD AND FAMILY SERVICES REVIEW BOARD

N.B.

v.

FAMILY AND CHILDREN’S SERVICES OF GUELPH AND WELLINGTON COUNTY

REASONS FOR DECISION

Date: August 24, 2012

Citation: 2012 CFSRB 33

Indexed as: N.B. v. Family and Children’s Services of Guelph and Wellington County (CFSA s.68)

INTRODUCTION

1N.B. (the “Applicant”) filed an application on March 20, 2012 with the Child and Family Services Review Board (the “Board”). She was complaining about the Family and Children’s Services of Guelph and Wellington County (the “Society”) pursuant to 68.1 (4) 4 and 5 and 68.1(4) 1, 2 and 3 of the Child and Family Services Act (the “Act”).

2The issues raised in this application and heard at the hearing are:

1. The Society failed to comply with subsections 68.1(4) 1, 2, and 3 namely:

• ss. (4)1 The Society refused to proceed with the Applicants email complaint.

• ss. (4) 2 The Society failed to respond to the complaint within the regulatory time frame.

• ss. (4) 3 The Society failed to comply with the complaint review procedure or with other procedural requirements under the Act.

2. The Society failed to comply with subsections 68.1 (4) 4 and 5:

• ss. (4) 4 and 5 The Society did not hear the Applicants service concerns or hear her when decisions were made and the Society didn’t provide her with reasons for decisions that effected her interests, regarding the referrals made to the Society about the safety of the child in the care of the father between November 29, 2011 and March 20, 2012.

3The Board conducted a Hearing on June 4 and June 22, 2012 and finds in favour of the Applicant on issues numbered 2B, 2C, 2D and 2E. The Board finds in favour of the Society for issues numbered 1 and 2A.

Preliminary Issue

ALLEGATION OF A BREACH OF CONFIDENTIALITY/ REQUEST FOR DISMISSAL

4On June 21, 2012 the Board received a written submission from the Applicant alleging that the Society had breached the confidentiality order made by the Board on June 4, 2012 and requesting that the continuation of the hearing be adjourned until the Board investigated this matter. The Board responded in writing to the parties on June 21, 2012 to inform them that the proceedings would continue as scheduled on June 22, 2012 and that the Applicant could raise her concerns for the panel to address at that time.

5The Board received a second written submission from the Applicant on June 21, 2012 regarding the allegation of a breach with an attached court document dated May 10, 2012 which contains statements made by the Society that form the basis for the Applicant’s allegation.

6At the hearing on June 22, 2012, the Applicant attended at the beginning of the proceeding and read a prepared statement again alleging a breach by the Society and requesting an adjournment of the proceeding and an investigation into the matter by the Board. The Applicant left the proceeding after reading her statement.

7The Society requested that the Board consider the Applicant’s application abandoned and the proceedings be adjourned. The Board denied the Society’s request and continued with the proceeding for several reasons. The Board had already heard the testimony of the Applicant and her witness and the Society had the opportunity to cross examine the Applicant and her witness. Secondly, the Board had informed both parties in writing that it would proceed with the continuation of the hearing on June 22, 2012 and would deal with the alleged breach at that time. The Applicant had filed her application with the Board on March 20, 2012 and the Board wished to deal with the matter as planned and at the earliest opportunity.

8The Board recognizes that the Applicant did not have the opportunity to cross examine the Society’s witnesses, however, this was due to a decision the Applicant made to leave the proceeding despite the Board’s written direction that it intended to proceed. Finally, the Board was of the view that the Applicant did not wish to abandon her application but rather to obtain the Board’s decision regarding the alleged breach of confidentiality. Had she remained at the proceeding, she would have been able to participate further in dealing with that issue and would have been advised by the Board panel how it was addressing the matter. The Board proceeded to finish the hearing and to deal with the alleged confidentiality breach.

9The Board finds that the Society did not breach the confidentiality order of the Board. The court document submitted by the Applicant in support of her allegation of a breach was dated May [ ], 2012. The Board made its confidentiality order on June 4, 2012. Therefore, the Society could not have breached an order that had not been made at the time of the court proceeding. The Board’s order is still in place and the Board reminds the parties that they must respect that order and were obliged to do so as of June 4, 2012.

Background

10The Applicant is the mother of a 3 year old son, [ ] (the “Child”). She is no longer living with the father of the Child; she has joint custody with the father and the Child resides with the father.

11The Society has been involved with the family conducting two separate investigations. The first investigation was initiated on November [ ], 2011 after contact from the maternal grandmother of the Child who had concerns about the parenting of the Child by the father and felt that the Child was at risk in the father’s care. The Society investigated, met with the Applicant on February [ ], 2012, sent a letter to the Applicant on February [ ], 2012 detailing the results of the investigation and closed the file on February [ ], 2012. The second investigation was initiated on February [ ], 2012 in response to a concern raised by the Applicant on February [ ], 2012 about a rug burn received by the Child while in the care of the father. The complaint was verified on March [ ], 2012 and the file has been kept open. This was communicated in a voicemail message to the Applicant by the Child Protection Worker (the “CPW”) on March [ ], 2012.

12The Applicant made complaints to the Society about the safety of her son while in the care of his father related to rough play by the father and injuries sustained in that rough play by the Child; inappropriate comments and gestures made by the Child related to statements made by the father, the Child’s aggressive behaviour towards pets and an outdated car seat used by the father for the Child.

13The Applicant made complaints to the Society about service concerns regarding the decision made by the Society to maintain the Child in the care of the father; the closing of the file following the first investigation and the Applicant’s request for a change in worker.

Analysis

14The main issues for the Board are whether the Society heard the Applicant as required when decisions were made or when she raised service concerns, and whether the Society provided her with explanations relating to the decisions made. There is also the issue as to whether the Society failed to proceed with the complaint, to respond in time or follow it’s complaint procedures, as required under the Act. The Board’s authority and the Society’s obligations are found in the following sections of the Act:

Matters for Board Review

68.1(4) The following matters may be reviewed by the Board under this section:

(1) Allegations that the Society has refused to proceed with a complaint made by a complainant.

(2) Allegations that the Society failed to respond to the complaint within the regulatory time frame.

(3) Allegations that the Society failed to comply with the complaint review procedure or with other procedural requirements under the Act.

(4) Allegations that the society has 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.

Duties of Service Providers

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;

68 (1) A person may make a complaint to a society relating to a service sought or received by that person from the Society in accordance with the regulations.

68 (2) Where a society receives a complaint under subsection (1), it shall deal with the complaint in accordance with the complaint review procedure established by regulation, subject to subsection 68.1 (2)

15The reasons for the Board’s decision on the two issues are set out below.

1. Failure to Proceed with and Follow the Complaint Process

16The Board finds in favour of the Society in part on this issue.

17Under Regulation 494/06 to the Child and Family Services Act (“Regulation”), the Society must determine within seven days of receipt of a written complaint whether or not it is eligible for review. If it is not eligible, the Society must notify the complainant of its decision on eligibility with reasons in writing. If it is found eligible, the Society must establish an Internal Complaints Review Panel (ICRP) and must notify the Applicant that the complaint is eligible and of the date and time of the ICRP.

18In this case, there was confusion about what constituted the written complaint and who the complainant was. The Board is satisfied that once this was clarified, the Society followed the requirements of the regulation and it was the Applicant who postponed the complaints process.

19The Applicant gave oral evidence that she had never sent an email complaint to the Society.

20The mother of the Applicant gave evidence that the letter dated February [ ], 2012 was the first instance in which she had written on behalf of the Applicant to request “an internal review” of the Society’s decision to close the file.

21The CPW gave evidence that he had sent a complaint brochure to the Applicant by mail on February [ ], 2012. This however, was in response to the Applicant’s concern about the return of her son to the father’s care on February [ ], 2012 and her statement to that worker that she wished to make a formal complaint. Both the Applicant and the CPW testified that there was no cover letter attached to the brochure or follow up contact with the Applicant by the CPW to explain the complaint process or the reason for sending the brochure.

22In response to a request by the mother of the Applicant to meet on February [ ], 2012, the Supervisor testified that she confirmed her availability for that meeting. However, the Applicant and the mother of the Applicant did not attend. The meeting was rescheduled for March [ ], 2012.

23On March [ ], 2012, the CPW and the Supervisor met with the mother of the Applicant and an Agent identified by the Applicant to discuss their concerns.

24The mother of the Applicant and the Agent provided documentation to the Society from the Applicant that gave consent for both to act as her agents. The letter was dated March [ ], 2012.

25During the meeting, the Supervisor provided a letter of explanation to the mother of the Applicant about her complaints and how to proceed with the Internal Complaint Review Process (ICRP). In her testimony, the Supervisor gave evidence that following that meeting, she advised the Service Manager and the administrator of the ICRP process of the complaint.

26On March [ ], 2012, the Service Manager left a voicemail message for the Applicant to meet regarding the next steps of the ICRP. A meeting was set up for the Applicant to meet with the Director of Service on March [ ], 2012. However, neither the Applicant nor her mother attended this meeting.

27Evidence indicated that the Applicant wrote a letter to the Society stating that there had been a request for an internal review and the Society had been “delinquent in their responsibilities in this request”. There was no indication in this letter when the original request was made for an ICRP and by whom this request was made. The letter was dated March [ ], 2012.

28On March [ ], 2012, the mother of the Applicant clarified in writing to the Society that the letter of February [ ], 2012 was the written request for the commencement of an ICRP.

29The Applicant sent a letter to the Society dated March [ ], 2012 which advised the Society to delay the request for an ICRP meeting while the matter is before the court “ as per the rules outlined in the Society’s complaint process document that restricts the process of internal complaints while the matter is in court.” The Society’s evidence is that they understood that this letter served to rescind the Applicant’s complaint. This letter was unsigned.

30The Society’s evidence indicates that the Society was confused as to who was the complainant- the Applicant or her mother. Although the Applicant had provided in writing the authorization for her mother to speak on her behalf, the Society felt that this consent pertained solely to the meeting of March [ ], 2012.

31The Board finds that the Society made efforts to fulfill the requirements for an ICRP by initiating telephone contacts and meetings with the Applicant, seeking clarification as to the date of the initiation of the complaint and who was the complainant, and by providing written documentation on two occasions about the ICRP. Once the Society had determined the nature of the complaint and the complainant, it proceeded in a timely manner to follow the required steps for the ICRP. Furthermore, the Board finds that the withdrawal by the Applicant of the complaint in a letter dated March [ ], 2012, delayed any further action on the part of the Society with regard to the ICRP.

32For these reasons, the Board finds in favour of the Society on this issue.

33The Board finds however that the communication between the Society and the Applicant was complicated by the involvement of the Applicant’s agents. The Applicant confirmed her role as Applicant on March [ ], 2012 regarding the ICRP and the role of her mother as agent. The Supervisor testified to continued confusion regarding the respective roles of the Applicant and her mother. Evidence of the various forms and frequency of communications between the Applicant, the Applicant’s agents and the CPW Supervisor and Service Manager over the time period of February [ ] and March [ ], 2012 attests to the complexity involved and potential confusion as the ICRP moved forward. To resolve this confusion, the Society could have sought further clarification in writing from the Applicant at anytime and established clearer lines of communication with the Applicant throughout the steps required for the ICRP. The onus is on the Society to clarify the process and communicate directly with the Applicant.

34Oral evidence provided by both the Applicant and the Society is that the Applicant misunderstood the intent of “the matter is before the court” and delayed her complaint, accordingly. The matter before the court was related to the custody of the Child not child protection concerns. There was therefore no matter before the court related to the Society at the time of the ICRP. The Society made no attempt to offer the Applicant clarification regarding the intent of “the matter is before the court” and that indeed her complaint could proceed. Furthermore, when the CPW sent the brochure to the Applicant, a letter of explanation or a follow up discussion may have been helpful in providing clarification to the Applicant.

35The Board finds that the Society’s lack of meaningful intervention to provide clarification and explanation directly to the Applicant about the ICRP inhibited her ability to effectively use the process.

2. Allegations made by the Applicant

A) Initial allegation

36The initial allegation was made by the Applicant’s mother on November [ ], 2011 about the wellbeing of the Child while in the care of the father.

37The Board rules in favour of the Society on this issue.

38A safety assessment was completed by the CPW on December 6, 2011. Voice messages were left between the CPW and the Applicant between December [ ], 2011 and January [ ], 2012 to arrange a meeting to discuss the outcome of the investigation. On February [ ], 2012 a meeting took place between the CPW and the Applicant.

39The Board finds that the Applicant was given opportunity to be involved in the pre-decision process. The Society made efforts to contact the Applicant to discuss the safety assessment and the decision to close the file. The CPW discussed the outcomes of the investigation with the Applicant on February [ ], 2012 and the Applicant was given the opportunity to express her concerns regarding these outcomes and her continued concerns about the safety of her son while in the care of the father. The CPW explained that the father had been cautioned about his rough play and that he was taking anger management counselling. The CPW also advised the Applicant that she could further raise her concerns with the court during the custody/access proceedings that were underway. A letter of closure was sent to the Applicant by the Society and the file was closed on February [ ], 2012.

40The Board finds that the Society did listen to the Applicant about her concerns related to the care of the Child by the father, investigated those concerns and put safety measures in place to address the concerns. These measures were discussed with the Applicant and explained to her with sufficient detail to permit her to understand the basis of the decision. The Board dismisses this complaint.

B) Second Allegation

41The Board is satisfied that the Society did not meet its obligations to hear the Applicant and provide her with reasons in relation to an investigation that stemmed from the Applicant’s referral to the Society about rug burn which also resulted in the Society making a decision about adult conflict.

42The Applicant reported a concern to the Society on February [ ], 2012 about a rug burn that the Child had received while in the care of the father. On February [ ], the CPW investigated the complaint while the Child was at the home of the Applicant. The Applicant was told not to return the Child to the father until she received direction from the Society. The CPW telephoned the Applicant later that day and indicated that it was safe to return the Child to the father at the scheduled time. The Applicant testified that she had expressed at that time her concerns about the risk of harm to the Child if returned to the care of the father. She also testified that she asked what steps the Society was taking to protect her son. The CPW stated that the father was cautioned and an ongoing investigation was underway.

43The following day, the Applicant left a voicemail message for the CPW reiterating her concerns regarding the risk of harm to the Child. She indicated at that time that she wished to pursue other avenues to ensure that there was attention given to her concerns. On February [ ], 2012 the CPW sent a complaint brochure to the Applicant by mail with no covering letter. The investigation was concluded on March [ ], 2012 with verification of a risk of harm due to the use of inappropriate parenting on the part of the father. On March [ ], 2012, the CPW tried to reach the Applicant by telephone and left a message to return his call. On March [ ], 2012, the CPW left a voice message for the Applicant explaining that the Society had verification of inadequate parenting on the part of the father. He also stated that, due to the continuing protection concerns, the file would remain open and transferred to ongoing service and the Society was developing a safety plan with the father. On March [ ], 2012 a letter was sent to the court regarding the protection concerns related to the care of the Child. On March [ ], 2012, the CPW left a voicemail message for the Applicant indicating that there was further verification that the Child was at risk of emotional harm due to his exposure to parental conflict. This information was in the documentation to the court. On March [ ], 2012, the CPW in an effort to serve the Applicant with the court letter went unannounced to her home. He stopped her on the street close to her home and served her the papers. The Applicant indicated to the CPW that this was an inappropriate time and location to communicate this information to her.

44The importance of the Society’s obligations under s.68.1 (4) 4 and 5 is to help ensure informed and consultative decision-making as well as accountability to those affected by those decisions. Evidence during the hearing indicated that the Applicant was not informed about the steps taken during the safety assessment to verify the risk of abuse. Similarly, the Applicant was not informed of the steps taken during the investigation which included meeting with collaterals like the police and the daycare providers; ongoing intervention with the father and the Child; relationship development with the Child by the CPW and supervisory consultation. Evidence was provided that there was a safety plan developed with the father and the Applicant was given no opportunity for discussion and input into that plan. This is not indicative of the Applicant having been heard.

45The case was transferred to ongoing service due to protection concerns and the Applicant was not given an opportunity to discuss this decision with the Society. Evidence provided indicated that there was no letter or written documentation provided directly to the Applicant about the two types of risk of harm that were verified with regard to her son. The risk of emotional harm due to ongoing adult conflict is of direct concern to the Applicant. There can be no remedy to this risk if the Applicant is not consulted and involved in the safety plan. The CPW and the Supervisor provided evidence that there were attempts made to contact the Applicant. However, these attempts were infrequent, unassertive, often unresponsive to the Applicant’s complaints and concerns, not timely and verbal in nature only. The voice messages did not contain sufficient detail for the Applicant to understand the decisions that were made.

46Meaningful participation in the process is served by affording parents the right to be heard and given reasons for decisions. The Society did not engage the Applicant as implicitly required by CFSA Reg. 206/00 s 3 (a) and as required by the Child Protection Standards in Ontario, Standards 3 and 4 in terms of how the safety plan decision and the decision of ongoing potential risk to the Child were made and how she was informed of them. At some point, the Applicant who had made a referral, became the subject of an investigation but was not interviewed about the concerns about adult conflict. The regulation and Standards provide minimum benchmarks for parental involvement and interviews in investigations and safety plans. When these are not followed by failing to consult with, interview and inform the parent, this is evidence that the Society did not hear the Applicant or provide her with reasons.

47The Board finds in favour of the Applicant on this issue.

C) Series of Other Allegations

48The Board finds that the Society failed to meet its obligations to the Applicant regarding a series of concerns relating to the Child’s health and safety in March of 2012.

49The Applicant testified that she had expressed her concerns to the Society regarding the Child’s aggressive behaviour towards pets and his aggressive gesturing and grimacing towards the mother. She reported that she believed these were as a result of the father’s actions. Both the Applicant and the Society indicated that no direct action was taken regarding these concerns. The Society testified that the Applicant made a complaint on March [ ], 2012 about the lack of healing of the rug burn the Child sustained. The Society felt that the action taken to date was sufficient but did not report this decision to the Applicant. Similarly when the Applicant reported to the Society on March [ ], 2012 that the father was using an unsafe car seat for the Child, the Society’s testimony was that no action was taken or reported to the Applicant.

50The Applicant testified that on March [ ], 2012 that she reported to the CPW that the Child cried for 15 minutes and would not settle before having to return to the father. The CPW testified that he had followed up on this complaint with the father on March [ ], 2012. However, the efforts made related to this complaint were not reported to the Applicant.

51The Applicant indicated to the Society in writing on March [ ], 2012 that she no longer wished to have contact with the Society directly and all communication was to be deferred to her mother or her Agent. In her testimony, she gave evidence that she was having difficulty maintaining contact with the Society because she felt “brushed off” and her concerns were not being heard. She also testified that the stress of the situation created difficulties for her with regard to her mental health.

52The Society testified that the Agent was becoming increasingly more aggressive and adversarial in his communication with the Society. For this reason, it was decided that all communication would be deferred to the father. The Society testified that they stopped all communication with the Applicant out of frustration with their dealings with the Agent.

53The Board finds that it is the Society’s responsibility to communicate directly with parents particularly when it relates to concerns about the wellbeing of their children. The objective behind the right to be heard and the right to reasons is to ensure that the parents are informed about the decisions made by the Society that will impact on their lives. Often these decisions lead to impacts that are serious or at least cumulatively serious and they always take into consideration the best interests of the children involved. Having parents who are informed fulfils the participatory service delivery purpose of the Act. The parents, through the process of being heard and participating in decision making, have a better understanding of what is happening and why and offers them some degree of influence on outcomes and processes that ultimately affect them and their children. The Society has a responsibility to communicate with the Applicant regularly, face to face and in writing and to engage the Applicant in decisions that are being made about her son. The Applicant will have an ongoing relationship with the father and the Child and meaningful effective protocols for communication need to be in place between the Applicant and the Society to meet the best interests of the child.

54The Board finds in favour of the Applicant regarding this series of complaints. The Society admitted to no or limited follow up. In the one instance when they did follow up, they did not advise the Applicant of their decision or how it was reached. The Applicant was ignored and not informed of what was or was not taking place. This is a clear example of the Society not hearing the Applicant because there is no evidence that they responded to her concerns except minimally in one instance. Nor was she provided with reasons because she simply was not contacted.

D) Applicant’s Request to Change Workers

55The Board finds that the Society did hear the Applicant regarding her request but that it did not provide her with reasons for its decision.

56The Society, through the testimony of the Supervisor, indicated that they were aware of the request of the Applicant to change workers as early as March [ ], 2012. A letter was received by the Society on March [ ], 2012 confirming in writing the Applicant’s complaint about the CPW and her wish for him to be removed from the case. The Supervisor testified that consideration was given to this request. However, given the age of the Child and the need to maintain consistency in relationships with that Child, the Society believed that it was in the best interests of the Child to retain the same CPW. Furthermore, the father was not requesting a change in worker. Both the Supervisor and the CPW testified that they had discussed the decision to maintain the same worker with the Service Director who would communicate this decision to the Applicant. Evidence indicates that there was no communication with the Applicant about this decision or the discussion that led to that decision.

57The Board finds that the Society heard the Applicant. The Society followed up and had discussions about changing workers at the supervisory level. They considered the option of changing workers but ruled it out for specific reasons. The Society met its obligation to the Applicant under subsection 68.1 (4) 4.

58However, the Society failed to provide the Applicant with reasons for the decision, leaving her in the dark about whether she was in fact heard and what had transpired.

59It is no surprise that the Applicant was left feeling that she was not heard when she raised her concerns to the Society about her worker’s lack of responsiveness to her complaints. The Society has an obligation when parents raise concerns not only to listen to them and look into the concern, but also to communicate its findings to the parent; otherwise parents are left feeling that their concerns were ignored. The Board finds that the Society did not meet its obligation to the Applicant under s. 68.1(4) 5.

DECISION

60The Board has found in favour of the Applicant on the issues relating to the second referral/investigation (rug burn; adult conflict) and in terms of the Applicant not being given reasons regarding the change of worker request.

61The Board makes the following orders:

The Society shall provide detailed written explanations to the Applicant as follows, with reference to the Child Protection Standards in Ontario and the Eligibility Spectrum, within 14 days of this decision:

• Reasons for returning the Child to the care of the father on February [ ], 2012 as part of the safety plan. This will include a written explanation concerning the details of the safety plan and the reasons for it. This will also include a written explanation about the steps taken during the safety assessment to verify the risk of abuse and the outcomes of that assessment.

• The steps taken in the investigation following the February [ ], 2012 referral and the outcomes of that investigation.

• Reasons for the verification of emotional abuse.

• Reasons for the transfer of the case to ongoing services.

• Reasons for the Society’s inaction regarding the Applicant’s complaints about the Child’s aggressive behaviour towards pets and his aggressive gesturing and grimacing towards the mother; the lack of healing of the rug burn the Child sustained; the use by the father of an unsafe car seat for the Child; the Child not settling before having to return to the father.

• Reasons for decision in response to Applicant’s request for a change of worker.

62The Board dismisses the complaints regarding the internal complaints process and the right to be heard about the change in worker.

63The Board dismisses the complaint regarding the Society’s failure to hear the Applicant or provide reasons in response to the Applicant’s concerns about the risk of harm to her Child while in the care of the father from November [ ], 2011 to February [ ], 2012.

CONFIDENTIALITY ORDER

64The order made on June 4, 2012 continues and is as follows:

Parties and their representatives must not use, share or disclose any documents or information provided or used in this application with anyone including the media or on-line. Any documents or information shared by the parties must be used only for the purpose of the hearing of this application by the Board.