Applicants v. Durham Children’s Aid Society, 2013 CFSRB 12

CHILD AND FAMILY SERVICES REVIEW BOARD

Applicants

v.

Durham Children’s Aid Society

REASONS FOR DECISION

Date: February 26, 2013

Citation: 2013 CFSRB 12

Indexed as: Applicants v. Durham Children’s Aid Society (CFSA s.61)

INTRODUCTION

1This is an application by the foster father and foster mother (the “Applicants”) under section 61(7.1) of the Child and Family Services Act, R.S.O. 1990 c. C.11, as amended (the “Act”) for a review of the November 20, 2012 removal of two boys (the “Children”) from the Applicants’ foster home by Durham Children’s Aid Society (the “Society”).

2The Society removed the Children because they substantiated allegations of physical and emotional abuse of the Children by the foster mother.

3The Applicants are seeking an order rescinding the decision of the Society. They believe it is in the best interests of the Children to be returned to their care because the Children had been in their care continuously since 2009 and they hoped to eventually adopt them.

4The Children’s position is that they wish to return to the Applicants’ home. The Children were represented by counsel from the Office of the Children’s Lawyer (“OCL”). The OCL did not support their return because of the nature of the physical discipline, which the Children confirmed to the OCL.

5The Board has determined that it is not in the best interests of the Children to be returned to the care of the Applicants. The Board confirms the Society’s decision to remove the Children.

BACKGROUND

6The Children are brothers. The oldest boy is 8 and the youngest is 7 years of age. They were taken into care in November 2009 and were put in the Applicants’ foster care later that month. Both Children have special needs and are in behavioural classes at school. They also attend play therapy. The Applicants have been married for many years and fostering since 2005. A year and a half ago, in 2011 the foster father had a motorcycle accident and was seriously injured. He required rehabilitation and was out of work and in the home. He took on more of a parenting role. This led to some conflict between the Applicants in terms of parenting styles. They also experienced some issues with their marriage, which were known to the Society. The foster mother is more strict and structured in her parenting style. The foster father is more easy-going.

7The Society expressed some concerns with the situation at the foster home in the summer and fall of 2012; however, they had no intentions of closing the home. These concerns related to conflict between the foster parents and allegations about the foster mother yelling and being abrasive with professionals.

8In October 2012, the Children’s birth father contacted the Society with an allegation from the older boy that the foster mother had, a few weeks earlier, grabbed the older boy and banged his head on the floor, after she had tripped on his laundry. The Society did not investigate immediately. The Society interviewed the Children informally on October [ ] and more formally on October [ ], 2012. They removed the Children to a relief foster home on a temporary basis on October [ ], 2012. Following the investigation, the Society substantiated the allegations relating to physical discipline and emotional “abuse”. The Society made the decision to remove the Children and notified the Applicants on November [ ], 2012. The Applicants, who had hoped to adopt the Children in future, brought their application to the Board on December 3, 2012.

9Since then, the birth father has commenced a status review of the Children’s status as crown wards, with access, seeking their return to his care. The Children have maintained contact with the Applicants through supervised access visits. The Applicants’ foster home has remained on hold, pending the outcome of this case.

ANALYSIS

10The Board has determined that the action that is in the best interests of the Children is to confirm the Society’s decision to remove the Children.

11In reaching its decision, the Board considered the following overarching principles as spelled out in sections 1, 2, and 3 of the Act:

1(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.

Other purposes

(2)The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

3. To recognize 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,

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

12In accordance with section 61(8.6) of the Act, the Board must decide what action is in the best interests of the Children. The Board considered the following factors in section 37(3) to be relevant to its determination of best interests:

1. The Child’s physical, mental and emotional needs and the appropriate care or treatment to meet these needs.

2. The Child’s physical, mental and emotional level of development.

3. The importance for the Child’s development of a positive relationship with a parent and a secure place as a member of the family.

4. The Child’s relationships and emotional ties to a parent, sibling, relative, other member of the Child’s extended family or member of the Child’s community.

5. The importance of continuity in the Child’s care and the possible effect on the Child of disruption of that continuity.

6. The Child’s views and wishes, if they can be reasonably ascertained.

7. Any other relevant circumstance.

13The main issue for the Board in this case is whether the Applicants met and can meet the emotional and physical needs of the Children. This includes an analysis of whether there was a risk of physical and/or emotional harm should the children be returned. The Board looked at the question of potential risk to the Children as part of and in the context of the best interest considerations. The Board also had to weigh the Children’s needs, wishes, place in a family and the importance of continuity of care with the question of risk. The Board finds that the Society has established that the foster mother used inappropriate physical discipline and that there is a risk, on the balance of probabilities, that she would do so in future. The nature of the discipline is such that the Children should not be returned. The risk of physical harm impacts on both the physical and emotional safety of the Children and means that their needs cannot be met by the Applicants.

14Looking at the Children’s needs, both Children were identified by the Society as having post traumatic stress, relating to their experiences in their birth family home. As special needs children, they posed challenges in the foster home and at school.

15The older boy has a good sense of humour and is good at sports. His special needs, most notably learning disabilities, were not fully identified until the fall of 2012, following a psycho-educational assessment and formal Identification Placement Review Committee (IPRC) process at the school. The older boy had done things like throw a “pull up” at the foster mother and bite and pinch her. He had difficulty sleeping and based on the evidence before the Board, he did not always do what he was asked, when he was asked. The Society and the Applicants knew that he had emotional difficulties and also proceeded from the assumption that he likely had learning difficulties. His behaviour was escalating in the summer and fall of 2012.

16The younger boy has had depression and anxiety and has engaged in serious acting out behaviours at school, resulting in calls to the Applicants to pick him up from school. The younger boy is very bright. The foster father taught him to play chess and they participate in the chess club at school.

17The Children fight with each other and the older boy is jealous of the younger boy at times.

18The Board heard evidence about allegations that the foster mother was “mean and bossy” and yelled at the Children. The Board also heard evidence about issues relating to her interaction with adults in the community. Because the Board has based its decision on the issue of physical discipline, there is no need for the Board to address the evidence relating to these concerns. However, the Board will examine whether the Applicants availed themselves of appropriate supports to help them meet the children’s needs.

19In the summer of 2012, when the older boys’ behaviours were escalating, the Society suggested that the Applicants involve Durham Behaviour Management, a resource that was available to the Society and foster parents to assist with parenting issues relating to special needs children, including those with learning disabilities. The Resource Worker testified that the foster mother suggested in the summer that they re-visit this in the fall because there were a lot of activities for the Children in the summer. She testified that at the annual review meeting of October 4, the foster mother declined the resource, saying that she didn’t think it would be helpful. The foster mother testified that she did not want to involve this particular resource because she had heard that another agency did well with Children. She gave no evidence of proactively offering this suggestion to the Society for follow up. She mentioned giving notes on a “sticky” about the agency to workers but both workers denied having seen such a note. The foster mother acknowledged that had she involved the Resource Worker, things might have unfolded differently.

20The Society was concerned about the impact of the accident on the Applicants’ relationship and about how the foster mother interacted with people in the community such as other foster parents, the Children’s play therapist and the special education teacher (‘teacher”). They had had complaints. They recommended marriage counselling to the Applicants in June of 2012. The Society was willing to take the unusual step of paying for counselling but the Applicants wanted to find their own counsellor. In July 2012, they told the Resource Worker that they were getting along better and that marriage counselling was not needed. The foster mother testified that the reason for not attending marriage counselling in the summer was waiting lists. At the annual foster parent review on October [ ], 2012, the Society did not impose any conditions about counselling. The documentation for that review has not been completed and was not available to the Board. The Applicants did not attend marriage counselling until after the removal of the Children. The foster father started individual counselling in February of 2012.

21The foster mother’s testimony was that she started seeing a psychiatrist, some time in the early fall of 2012 and that it was very helpful. She could not confirm with any accuracy when she started seeing the psychiatrist. Different start dates are noted on different documents and case notes. Since the removal of the Children, the Applicants have signed up for anger management and parenting courses. The foster mother testified that her psychiatrist recommended the anger management course and a women’s group that she also attends. Her psychiatrist is out of the country for the winter but the foster mother hopes to resume counselling when she returns.

22The concern driving the Board’s decision in this case is with the use of physical discipline and the risk of future use of physical discipline. The Children’s emotional and physical needs cannot be met in circumstances where they have been exposed to and could be exposed to physical harm.

23When the Society heard the allegation from the birth father, on October [ ], they did not respond immediately because the father had minimized the report, saying that he didn’t believe it because the older boy had made allegations about him in the summer that he said weren’t true. In the course of an investigation into the birth father, on an unrelated matter, the Children’s Services Worker spoke to the Children, together, following an outing on October [ ], 2012. The incident was said to have occurred on approximately October [ ], several weeks earlier.

24The older boy was also interviewed formally and privately by an experienced investigator on October [ ], 2012 and re-enacted the events for the investigator, using furniture to demonstrate the positioning in the room. The older boy’s story was consistent both times and was offered in a spontaneous manner. He described the foster mother coming into his room and tripping on some laundry on his floor. She slipped on the laundry and fell to the ground. After her fall, she was angry and called him over. She said something like: “get over here or I will pull you over”. He went to her. He disclosed that she grabbed him by the hair, pulled him down to the ground and hit his head off of the floor four times. According to the older boy, she said something to the effect of ‘see how you like it, that is not funny to fall and get hurt”. She then asked him to clean up his room and come downstairs. He did not go downstairs and she came up later and allegedly said “you are going to have to go for a vacation, you and [your brother]”. He did not feel that the incident was an accident and identified that the foster mother was angry. There was no one else in the room at the time of the incident.

25On October [ ], 2012, in their separate formal interviews, both Children disclosed to the investigator that the foster mother, when angry, would grab their heads and move them back and forward. The Children told the investigator that they had both had this happen to themselves and had seen the foster mother do it to the other boy. The Children, independently, told the investigator that this hurt their necks.

26On November [ ], the Children, together, “re-enacted” the incidences of physical discipline for the supervisor. The Board does not place weight on this final disclosure as the Children were together and it was weeks after the initial meeting with both Children.

27The investigator interviewed three other children who had been on relief placements with the Applicants. None of them described any incidents of physical discipline of the Children or any other children.

28The investigator met with the Applicants on October [ ], 2012 at the Society’s offices. The investigator presented the allegations about physical discipline to the Applicants. The investigator’s evidence was that the foster mother denied the allegations and according to his notes, suggested “that any concerns might have been because of an accident or the boys misconstruing a bump.” When the investigator told her why he felt the Children were not misconstruing or exaggerating, she maintained that she had never lost her temper or become angry enough to cause harm the Children.

29The foster mother testified that she did not deny the allegations to the Society, but was quiet and that her husband would use words like misconstrue, not her. The investigator met with the Applicants again on November [ ], 2012, to complete the investigation. The investigator spoke of the allegations of physical discipline and advised that based on the information that he had, the allegations would be verified. He explained to them what that meant. The foster mother did not comment about the allegations.

30In the Application to the Board, which the foster mother had a friend type out for her, she described the situation as an “accident” where she tripped on clothes left on the floor and that “both of us went down”. The narrative describes the foster mother asking the older boy if he was hurt and his responding “no”.

31At the hearing, the foster mother testified that she “guessed maybe it did happen” as the older boy alleged. Her evidence was that she could not remember because she was “stressed” and has “blacked out”. She “remembers staring”. She “wishes she could remember” what happened. Her testimony was that she fell forwards, while the older boy had told the investigator she fell backwards. She testified that she had been injured in the fall. Her hip, knee and hand and were injured and her hip is still giving her problems. This was the first time that the foster mother had mentioned possibly blacking out or injuries. She testified that she had had a potential black out in the grocery store earlier last year in which was “standing there”. Her doctor has done tests regarding memory loss.

32When asked if she grabbed the Children by the heads and moved or rocked their heads up and down, she testified: “not that I remember”.

33The Board concludes, on the balance of probabilities that on the day in question, after a fall, the foster mother grabbed the older boy by the hair or head and banged his head on the floor four times and that in doing so, she made the comments as alleged by the older boy.

34The Board does not find the foster mother’s evidence about this event reliable. The Board notes that when under oath, the foster mother did not deny the allegation as a misunderstanding as she may have when interviewed by the investigator or in her Application to the Board. Instead, for the first time, she acknowledged that she may have banged the older boy’s head as alleged, but stated that she may have blacked out and couldn’t remember. She could not offer an account of what happened. Her explanations were inconsistent and she admitted that she may have done what the older boy said, including the head banging and the statements made. She did not offer a credible account for the inconsistencies in her explanations. The Board accepts the evidence offered by the Society about the event. The older boy’s statement was made consistently and accepted by the experienced investigator. There is no evidence to the contrary.

35Further, the Board is not satisfied that the use of physical force was an accident. Rather, the foster mother reacted in anger because of the fall on clothes the older boy had left on the floor. This is so because of her use of the words to the effect of seeing how he liked it and her demand that he come over to her, following the fall.

36Regarding past use of physical force, the foster mother did not deny the allegations about grabbing the Children by their heads and rocking their heads. Instead, she testified that she could not remember. The Children witnessed the foster mother doing this to each other and they each experienced it. Their statements were consistent and believed by the experienced investigator. The foster mother offered no evidence to dispute the allegation.

37The Board accepts that the foster mother engaged in this type of physical response in the past and accepts the Children’s statements to the investigator that it hurt their necks and that they did not like it.

38The foster mother’s lack of memory, and black outs, while possible, are not credible because she did not offer similar explanations in the past. If she did in fact have black outs and such severe memory loss, and did not disclose this to the Society, that is concerning in and of itself. Whether the Board accepts the existence of memory loss or not, the outcome leads to the same conclusion: the foster mother grabbed the older boy’s head and banged it off the floor four times. The foster mother did not offer the Board any credible explanation to dispute that or the other allegation of grabbing and rocking the Children’s heads.

39The Board finds that there is a risk, on the balance of probabilities that the foster mother could grab the Children and rock or bang their heads in future or resort to a similar physical response. She has not, at this time completed an anger management course and the Children will continue to behave in ways that could frustrate or anger a caregiver because of their special emotional and learning needs. While under the scheme of the Act, parents who use physical discipline may get a second or third chance to prove their ability to care for their children, the expectations of a foster parent are different and higher. The Board does not have the same type of authority that a court would have for parents, to impose conditions and a system of monitoring to prevent harm.

40The Act and Society protocols for foster parents expressly prohibit the use of corporal punishment for children in care. The Foster Care Manual (“Manual”) prohibits the use of unacceptable discipline in foster homes. The Manual describes unacceptable physical discipline as including “punching, shaking, spanking, hitting or other forms of aggressive physical contact; (…) grabbing a child by the head, the arm, or the neck”. According to the Manual

Foster Parents who fail to comply with the discipline policy may have their home closed as a fostering resource. Allegations of inappropriate discipline may constitute a Criminal Investigation.

41Section 101 of the Act, Rights of Children (in care) provides that:

No service provider or foster parent shall inflict corporal punishment on a child or permit corporal punishment to be inflicted on a child in the course of the provision of a service to the child.

42The Resource Worker testified that foster parents are generally held to a higher standard of care than parents because they are meant to be a place of safety. The Society is obliged to have the children in its care live free of risk of physical and emotional harm and to have their needs met. No individual who has a verified instance of physical discipline or abuse will be approved as a foster parent in the screening process for foster parents.

43The rules for foster parents are very clear, as are the expectations. The foster mother did not, for whatever reason or because of whatever factors, follow the rules. As such, the foster family has not met the standard of care warranted for children in care and specifically, for the Children in question.

44The Board heard evidence about many positive aspects of the care given by the foster parents, which must be weighed with the concerns about physical responses by the foster mother. The Family Services Worker testified that the Applicants had several positive attributes, including: commitment to the children in their care, treating them as part of the family with outings and activities, the foster mother being a good advocate for the children in her care and not wanting negative talk about them, volunteering in class and the foster mother offering structure and focus for children. She testified that she believed the Applicants did the best they could with the Children and that she never doubted that they love them. The foster mother told the Board that she would rub the older boy’s back and read to him at bed time to help with his anxieties and to help him sleep. Both Applicants testified that they love the Children and would do anything to keep them.

45There is no question that the Applicants are committed to and love the Children or that the Children have a bond to them and want to go back to the home they know. However, sometimes, other factors will “trump” continuity of care, place in a family and the wishes of children. One such factor is physical safety, which in turn, impacts on emotional well-being. In this case, given the severity of the act of head banging on the floor and the pattern of grabbing and rocking the Children’s heads, the risk to the safety of the Children is such that it outweighs other considerations. This is exacerbated further by the foster mother’s possible susceptibility to memory loss and black outs. If she is truly experiencing these symptoms, the Board is concerned that she may not have the ability to engage in any self-control at those times and may be unable to keep herself from reacting physically to the Children. If she does not have black outs or memory loss issues and is in denial about the severity of her responses, she again, cannot be counted on to keep the Children safe.

46The Board did not hear from anyone, from a clinical perspective on the applicant’s behalf, and she has not completed the parenting and anger management courses. Her own counselling efforts and her statement that she would do anything to keep the Children, do not render her able at this point in time to keep the Children from physical harm. At a time when she was under extreme pressure and when the older boy’s behaviour was escalating, she did not take the help in the form of the behaviour management resource offered by the Society. The foster mother admitted that this help might have led to a different outcome. This resource might have helped prevent the incident in early October.

47The Board’s remedial authority is clear under s. 61 (8.6) of the Act:

The Board shall, in accordance with its determination of what action is in the best interests of the child, confirm the proposal to remove the child or direct the society not to carry out the proposed removal

48In cases where the children have already been removed for risk, as here, the Board has made orders confirming the decision to remove the Children, as opposed to the proposal to remove.

49The Board has determined that the action that is in the best interests of the Children is that they not return to the foster care of the Applicants. The Board wishes to acknowledge the love and commitment of the Applicants to the Children whom they treated as part of their family. The Board recommends that the Society continue to permit supervised access, to the extent considered appropriate by the Society, in the interests of continuity, taking into account the views and wishes and emotional needs of the Children. This is a recommendation only as the Board has no authority to deal with issues of access.

DECISION

50The Board confirms the Society’s decision to remove the Children from the foster care of the Applicants.

CONFIDENTIALITY ORDER

51Parties 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.