Applicant v. York Region Children’s Aid Society, 2014 CFSRB 59

Child and Family Services Review Board

Applicant v. York Region Children’s Aid Society

REASONS FOR DECISION

Date: October 17, 2014 Citation: 2014 CFSRB 59 Indexed as: Applicant v. York Region Children’s Aid Society (CFSA s.68)

INTRODUCTION

1This is an application under s. 68.1(4) 4 and 5 of the Child and Family Services Act, R.S.O. 1990 c. C.11 (“Act”). The Applicant alleges that the Society did not hear her or provide her with reasons for decisions affecting her interests regarding a referral she made about the care of her child.

2The Board must decide whether the Society met its obligations to hear the Applicant and provide the Applicant with reasons for decisions over the course of the referral and investigation and when she raised service concerns about the investigation.

3The Board heard the application on September 26, 2014.

4The Board has determined that the Society has not met its obligation to hear the Applicant and to provide the Applicant with reasons with respect to the outcome of the referral/investigation. The Board finds that the Society heard the Applicant regarding her service concerns but did not provide her with reasons for its decision in that regard.

BACKGROUND

5The Applicant is the mother of a 3 year old child. Her former spouse, the child’s father, has access to the child. He moved several hours from the mother and now lives with his partner. He has access to the child. The child is being followed by a psychiatrist for anxiety. In February of 2014, the child started demonstrating new, troubling symptoms and the parents consulted with the doctor. The mother called the Society and made a referral as she noticed the symptoms had started after an access visit. She raised concerns about the care and safety of her child. The worker commenced an investigation which included meeting with the Applicant and child in her home, and both parents together but did not include other steps. The Society did not confirm (“verify”) the Applicant’s concerns but verified that the child was at risk because of parental conflict. The Society closed its file. The Applicant complained to the supervisor about the investigation and met with the supervisor and the worker.

6The Applicant commenced her application to the Board on May 1, 2014.

ANALYSIS

7In making its determination, the Board considered the following legislative provisions:

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,

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

8In P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 33, at paras. 13-14, the Board described the purpose of s.68.1(4) 4 and 5 as follows:

The obligations under s. 68.1 (4) 4 and 5 reflect the importance of active participation for parents, providing them with the opportunity to have some degree of influence in the process. This is facilitated through genuine communication, giving applicants the opportunity to have input into decision making and to have enough information to make informed responses to, or accept decisions.

9The “right to reasons” under the CFSA, means a right to a meaningful explanation about decisions that affect the applicant’s interests. In J.G. v. Windsor-Essex Children’s Aid Society, 2013 CFSRB 8 at para.13, the Board held that:

With respect to this section of the Act, what constitutes sufficient reasons is a matter to be examined in each case in the context of that particular situation. This may include an examination of the timeliness and the level of detail provided. A complainant must be given sufficient information regarding the factors that were taken into account in making the decision to allow him or her to understand why and how the decision was made.

10The Applicant called the Society on February 19, 2014 because the child started exhibiting symptoms following an access visit with her father. The symptoms included aggressive play including mock time outs and threats. The child also came home wearing dirty underwear. The Applicant outlined her concerns about the father’s partner, the use of time outs at his home and the timing of the symptoms to the intake worker. She also told the intake worker that the child did not want to go to access visits with her father. According to the intake worker’s notes, the Applicant also told her that she had shown the doctor some videos of the child’s aggressive behavior and the doctor believes the child may be repeating things she has heard. According to the Applicant, she asked the worker to contact the doctor.

11The Eligibility Spectrum is the mandatory tool for provincial child welfare agencies to “code” a referral and determine the type of investigation they will conduct. In this case, the referral was ‘coded’ a 3. 1. B with a 7 day response. The file was assigned to a male worker to conduct the investigation. At the Applicant’s request, the file was re-assigned to a female worker (“worker”).

12The Referral Report is the Society’s document setting out what information was received and how it was coded on the Eligibility Spectrum. It refers to 3.1. B of the Eligibility Spectrum which relates to emotional harm caused by a caregiver or risk of emotional harm due to caregiver action/inaction or inadequate response. The Referral Report contains different information about the contact with the doctor than the intake worker’s case notes, suggesting that the mother took the child to the doctor as opposed to showing him videos.

13The Provincial Child Welfare Standards are mandatory for all societies under the Act [s. 15 (1); (4); Regulation 206/00 1 (h)]. Pursuant to the regulation and the Standards, the Society is required to prepare an investigation plan, which the worker did. The plan developed by the worker, included “interview any other person who may have relevant information regarding the referral.”

14On February 28, 2014 the Society attended at the Applicant’s home and met with the Applicant who set out her concerns that, for the past few months, the child was acting out after access visits. The Applicant gave the worker further examples of the types of aggressive behavior including threats of leaving her dolls alone in the dark, grabbing their cheeks, separation anxiety and the child grunting and not speaking when she returned from her last visit. She expressed concerns about time outs at the father’s home. The Applicant testified that she advised the worker that she had been working with a psychiatrist regarding the child’s anxiety in the past and that the mother and father went to see the doctor because the father was upset that the child did not want to go on visits. She told the worker that the doctor attributed the symptoms to one of three things: experiencing abuse, witnessing abuse or internalizing (trying to understand) violence.

15The Applicant confirmed that she was not concerned about the physical condition of the home. She told the worker that the father was charismatic but that he was known to lie and gave examples.

16The worker met with the child in private. The worker testified at the hearing, that given the child’s age, she was unable to meaningfully interview her. However, she deemed the child safe. This is reflected in the subsequent Safety Assessment where she deemed the child safe as the mother was using community supports and noted that she would follow up with the father.

17The worker told the Applicant that she would follow up with the father, possibly his partner and that she might visit their home. She did not explain her assessment that the child was safe or why. It is not her practice to do so.

18The worker spoke to the father on March 11, 2014. According to her notes, his interpretation of what the doctor said was different than the Applicant’s. He discussed the differences in parenting style between the two homes. He also alleged that the mother was withholding access and that the relationship with the Applicant got worse when he had a serious relationship. He made other comments about the Applicant and access. He was open to a joint meeting.

19The worker called the Applicant on March 12 and asked her about the alleged withholding of access, which she denied. The worker does not recall asking her about the other custody and access related comments of the father, although these comments later informed her decision to verify risk of harm based on custody/access conflict. The worker advised the Applicant that the parents would have to work out custody and access.

20The next step that the worker took was to meet with the parents, together. This happened at the Society offices on March 21, 2014. At the meeting, [the Applicant] provided two additional pieces of information: first, that she had experienced domestic violence from the father, and that she was concerned this might be going on in his new home and be witnessed by the child. She described the types of behaviours to the worker, with the father present at the meeting. She told the worker that the father used to throw furniture and bang his fists on things, with the child present. The worker’s notes indicate that at this meeting, the Applicant had expressed concerns about the father as posing a risk whereas she had not initially done so. According to the Applicant, he was upset that she raised the issue but he did not deny it.

21The second new piece of information was that the child had repeatedly hit her aunt.

22The Applicant’s list of concerns was a page long. The worker added to the list a note about the new concern about the child hitting the aunt but did not add the potential exposure to domestic violence.

23At the meeting, the worker asked the father how he disciplined the child. The Applicant asked the Society to send someone to the father’s home to assess the situation and the father agreed, saying he would welcome this. According to the worker, it was clarified at the meeting that the doctor had not actually seen the child but was consulting with the parents. The Applicant also asked the worker to speak with the doctor.

24The Applicant asked the worker what she would consider symptoms of abuse. The worker said it depended on the child and their age and did not engage in further discussion when pushed for examples. The Applicant made it clear at the meeting that she did not want to expose the child to a risk of exposure to aggression or abuse by sending her to the father’s. Further, if the Society decided there was no abuse, she wanted it to state clearly that abuse was not happening. According to the Applicant, the meeting ended with the worker telling the Applicant they would do an investigation and make a decision and get back to them.

25It is not clear when the worker made the decision to investigate the Applicant and the father regarding conflict over custody and access (code 3.3.I on the Eligibility Spectrum). Further, the worker testified that the “investigation” started in February with the original referral and that it never formally included an investigation of domestic violence allegations (code 3.3.C or D on the Eligibility Spectrum). However, despite her evidence that she had not “coded” this allegation as a referral, she “coded” a new referral as of March 21, 2014, under 3.3.I, which relates to significant custody conflict but described it as “child exposure to partner violence”, which would be more consistent with the concern about exposure to domestic violence. This is documented in the investigation and closing/transfer summary and the society’s closing form Family Services Turnaround.

26There was no evidence that the worker prepared a new investigation plan for exposure to domestic violence and her evidence was that she treated this and the information about the aunt as new pieces of information but not as a new child protection concern.

27Following the meeting, which started at 10 a.m. and ended at approximately 11 a.m., the worker went to meet with her supervisor at 11:20 a.m. and again at 12:00 p.m. According to the supervisor, the supervisor advised her to contact the new partner over the phone. The worker called the new partner at 1:30 p.m. and 1:40 p.m. and asked her about how she disciplined the child. She asked her in a general way, whether there was any domestic violence in the home. She did not define what she meant by domestic violence or put the examples to her that the Applicant had and she did not ask her if the child had witnessed any such behavior. According to her notes, her conversation with the new partner could not have lasted any longer than 1:45 p.m. since that is when she spoke to her supervisor.

28The worker then met with her supervisor at 1:45 p.m. She testified that she showed the supervisor the list of symptoms and concerns that had the reference to the aunt. However, the supervisor testified that she was not sure if she was aware of the new information: alleged domestic violence possibly witnessed by the child and the child’s hitting the aunt. The supervisor’s notes do reference allegations of possible conflict in the father’s home between him and his girlfriend. The worker and supervisor did not discuss doing a home visit at the father’s home or speaking with the doctor or the aunt.

29The worker and the supervisor decided not to verify the mother’s concerns because the parents were taking steps together to consult with the doctor. The worker’s notes indicate that there is no evidence the child is being harmed. The notes do not explain how the symptoms factor in to the decision. The worker and supervisor did however, decide to verify code: 3.3.1 under the Eligibility Spectrum, due to custody conflict.

30The worker called the father at 1:55 p.m. and told him that they were closing the file and not verifying abuse. The worker called the Applicant at 2:06 p.m. Her testimony was that she told the Applicant that there was no evidence to suggest the child was being abused and that she had contacted the partner and was satisfied that appropriate time outs were used. The Applicant challenged her about taking the word of the person being investigated and was upset. The Applicant was upset and also questioned how they could make a decision so quickly after the meeting in which new information was raised. The worker’s noted do not reflect the full conversation as relayed to the Board by both the worker and the Applicant but do indicate that the Applicant requested to speak to the supervisor.

31At no time had the society told the Applicant that she was being investigated under the conflict over custody and access ground of the Eligibility Spectrum or that this had been verified by the Society. The worker’s notes contain no reasons for the verification decision and the worker was not able to articulate her reasoning at the hearing.

32The Applicant then called the supervisor to express her dissatisfaction with the investigation and its outcome. According to the Applicant, she reiterated her concerns based on what the doctor had said. The supervisor’s notes indicate that she explained that from the discussions with the parents and partner there was not enough evidence to suggest imminent risk and that the applicant should call a lawyer.

33The Applicant told the supervisor that she wanted a letter from the society saying they do not know if the father abused the child.

34The mother called back and questioned whether the supervisor had said she had to send her child for access because the society doesn’t know if there was abuse. According to the supervisor and her notes, she told the Applicant that whether she sent the child for access was up to her and she should consult a lawyer. She provided her with some information in this regard.

35The Applicant told the supervisor she had not received the complaints brochure. The supervisor asked the worker to send the brochure. She asked the worker about the brochure and the worker told her she had left one in the home. They sent a new brochure in any case.

36The mother advised that she was not satisfied after speaking with the supervisor. However, the supervisor offered to meet with the Applicant. The Applicant eventually agreed to meet with the supervisor and they met, along with the worker, on April 14, 2014. The Applicant testified that this meeting was the first time that she felt she had been listened to and respected and that the supervisor was open to listening. The Applicant testified that she outlined her concerns about the investigation including not going to the father’s home, not calling the doctor and not interviewing the aunt. She also raised questions as to why the father was believed and not her and concerns about feeling the worker was aligned with the father over travel to access. The Applicant did most of the talking at the meeting, the supervisor did some, including explaining that the travel suggestion was that only and recommending play therapy and that the child have an OCL.

37The worker testified that she explained to the Applicant that they had not called the doctor because she had given them conflicting information about the child actually having seen the doctor. In her testimony to the Board, the worker identified that this was clarified at the March 21 meeting. Thus from February until that meeting, she would have been under the impression the child had seen the doctor. The mother reiterated her concerns about domestic violence. It was her hope that the meeting might lead to a further investigation but there was no evidence that she asked for further steps to be taken.

38According to the supervisor and the worker, the Applicant left the meeting apparently satisfied. The supervisor’s notes read that: the mother “stated she was pleased” with the outcome. The Applicant told the Board that she left the meeting by stating she may file a complaint.

39The verification of risk of emotional harm because of parental conflict over custody and access was not discussed at the meeting. The Applicant first learned of it during the Board’s process, when the Board ordered pre-hearing disclosure.

Investigation Process

40The Board finds that the Society did not hear the mother during the investigation process.

41The most that the worker told the Applicant about her decisions during the investigation process was that she would do an investigation, that she would contact the father and possibly the partner and that she might visit their home. She also told her that she would get back to her. The worker did not consult with the Applicant about whom the Applicant felt she should talk to. When the Applicant specifically requested, at different stages of the process, that the Society do a home visit at the father’s home and talk to the aunt and the doctor, the worker ignored these requests. When the Applicant asked the worker what symptoms of child abuse were, she gave a general response and shut the conversation down. She did not address whether the child’s symptoms were consistent with abuse symptoms which was what the Applicant was concerned about. The supervisor testified that the child’s symptoms could be reflective of abuse and that one of the ways to determine if a child has been abused is to assess the child’s attachment with the parent in question. The worker’s shutting down of the Applicant’s questions, reflects an attempt to minimize or ignore the Applicant’s concerns.

42As part of a child protection investigation, the mandatory Standards (Standard 4) require:

6. Direct observation of the interaction between the referred child and his/her parent /caregiver.

43The worker was shown the standard at the hearing. The standard is also reproduced in [the] society Investigation and Closing Summary document as one of the steps in the investigation process that [is] checked off as having been carried out. The worker testified that she does not interpret this as mandatory but rather that she had discretion as to whether to comply with this standard. In her view, because the mother was the primary care giver, visiting the child in her home was all that was needed. The supervisor also interpreted this standard as relating only to the primary caregiver.

44Generally, when dealing with out of town parents, the Society has a choice of going themselves or sending a worker from another society to conduct the interview or observation as part of the investigation.

45The Applicant could not understand why this had not been done, given her requests, the father’s willingness and the requirement in the standard.

46The Board finds that the Standard is not discretionary: it is mandatory for all caregivers and parents, regardless of whether they are “primary” caregivers. The plain wording of the standard does not limit it to “primary caregivers”. The fact that the Society ignored the Standard is evidence of it not hearing the Applicant. Further, the Society did not respond to the core of the allegation: that something was going on in the father’s home. Even when faced with his willingness to have the child observed in his home and with the allegations surrounding past domestic violence observed by the child and the potential that this was going on in the father’s home, the Society did not follow up to assess the child in that home. The Society did not re-interview the father and the Applicant separately when she alleged that she had concerns about an ongoing pattern of domestic violence. This may have been prudent, given that she was speaking in front of a past perpetrator of domestic violence and he did not dispute this. The Society made a quick decision following a meeting in which further information was provided. It did not talk to the doctor about her clinical, professional assessment of the child’s symptoms and it did not talk to the aunt who would be able to describe (or not) changes in the child emotionally. The Society did not hear the Applicant because it re-framed and re-focused her concerns, ignored her requests for a fulsome investigation and did not follow up in manner demonstrative of taking her allegations seriously.

Decision to investigate parental conflict over custody and access and investigation of this parental conflict

47The Society did not hear the applicant prior to its decision to focus the investigation on parental conflict or during its investigation of the issue. Hearing her would have entailed the Society raising its concerns about parental conflict directly with the Applicant and asking for her response. While the worker discussed access arrangements with the Applicant and the father, she only put one allegation directly to the Applicant. She never advised her that this was part of the investigation but routinely told the Applicant she and the father had to work this out apart from the Society. The Applicant was not told that this investigative decision was being considered or that it had been made or why and thus, she was offered no explanation, let alone a meaningful one.

Verification Decisions

48The Applicant was not provided with meaningful reasons for the outcome of the investigation.

49The Society does not have a practice of sending verification letters. Under the Provincial Standards (7), the parents must be notified of the outcome of an investigation within 14 days. The standards do not proscribe the content of that notification. The worker called the Applicant to give her the decision. The call was short because the Applicant was upset. The worker did not do any follow up to provide further explanation because the Applicant called her supervisor and thus, she “left it at that”. She did not write a letter to clarify what wasn’t covered on the phone call.

50The Society’s obligation under s. 68.1(4) 5 is higher than the obligation in the standards to “notify” an Applicant, it requires a level of detail that will permit an Applicant to understand why and how a decision was made. The worker’s explanation about the non-verification fell far short of the Society’s obligations. At the hearing, she was asked why the allegations were not verified. She replied that verification occurred when it was clear that there was abuse. When asked what the level of proof needed was – balance of probabilities, more likely than not, crystal clear, beyond a reasonable doubt, she said that she did not know. She testified that she requires a confession or disclosure of domestic violence to find that it occurred in the context of whether she ever questions or goes behind what an alleged perpetrator or victim says. Without knowing what analysis she should be bringing to bear in an investigation, it would be difficult for her to properly explain her conclusion and how she arrived at it.

51Her verbal explanation to the Applicant was simply to state the outcome and not to provide any insight into it, except that she accepted what the partner said about discipline. When challenged, she offered no further insight. A meaningful explanation could have been achieved by going over the steps of the process, the level of proof required to “verify” and the explanations behind not talking to certain people and to believing the father and partner. The reasons were not responsive to the concerns raised by the Applicant because she was not alleging that the father was not dealing with symptoms, but rather, that something was happening at his house that was the cause of the symptoms and that the father had been known to lie. The worker did not address the symptoms or that she had ruled out care in the father’s home as a cause.

52The worker had drawn a conclusion with her supervisor about what might be causing the child’s distress but this was not shared at all with the Applicant. Since the Applicant had no idea that risk of emotional harm because of parental conflict/custody was verified, she was clearly not provided with reasons for this decision.

53Meaningful reasons in this regard would have included advising the Applicant of the decision itself and capturing the information behind each aspect of the verified risk including reference to the child’s demonstrated emotional condition. This was not done and, as such, the Applicant was not given sufficient information about the factors taken into account to enable her to understand the reasoning behind the decision.

Service Concerns

54The Board finds that the Applicant was heard when she raised service concerns but that she was not given reasons for the Society taking no further steps. The supervisor spoke to the Applicant twice on March 21, 2014. She did her best to respond to questions and provide the information that she had. She ensured the Applicant got sent a copy of the complaints brochure and she offered to meet with the Applicant to address her concerns. She provided a forum for the Applicant to address those concerns on April 14, 2014 and engaged in a process of listening to the Applicant, with some clarifications on that day. The Applicant testified that this was the first time that she felt she had been heard or respected. The supervisor made concrete suggestions for follow up by the Applicant. She thought the Applicant was satisfied when she left the meeting. She had engaged in genuine communication and to the best of her understanding, she had heard the Applicant’s service concerns.

55The Applicant testified that while she felt heard at the meeting, she was not satisfied, as she had expected concrete steps. However, there was no evidence of any discussion at the meeting about what those might look like.

56There was no follow up communication between the Society and the Applicant. The provision of reasons for the Society’s decision to take no further steps, following the meeting would have closed the communication gap about “satisfaction” (or not) from the meeting and provided an opportunity for further dialogue, clarification or requests for action. The lack of an explanation for the decision to take no further steps, led to miscommunication and different perspectives on whether the Applicant’s concerns had been addressed. A meaningful explanation could have come in the form of a summary or minutes from the meeting and identified that the outcome of the meeting as no further steps being taken because the Applicant expressed her satisfaction. If she were truly satisfied, then this would have ended the matter. If not, it would have been up to the Applicant to pursue further action.

57While the supervisor heard the Applicant’s service concerns, the Society failed to provide a meaningful explanation of the outcome related to the service concerns.

CONCLUSION / ORDERS

58For the above reasons, the Board finds that the Society did not meet its obligation under s. 68.1(4)4 and 5 of the Act to hear the Applicant and to provide the Applicant reasons for decisions affecting her interests, except that it did hear her service concerns.

59In terms of remedy, the Applicant had access to information from the file during the hearing and the worker and the supervisor provided some explanations at the hearing. However, some gaps in information still remain.

60The Board orders the Society to provide detailed written reasons to the Applicant in the form of answers to the following questions with reference to the legislation, the Eligibility Spectrum and the Child Protection Standards in Ontario. The reasons will contain sufficient information regarding the factors taken into account to allow the Applicant to understand why and how decisions were made.

1. Why was the decision to investigate parental conflict made and when? Why was it not communicated to the Applicant?

2. What is the standard of proof used by the Society in verification decisions and how was that applied to the question of potential exposure to domestic violence, parental conflict (custody/access) and the potential of emotional harm to the child in light of her symptoms?

3. Since the child’s symptoms could be symptoms of abuse, why did the Society not speak to the psychiatrist and the aunt or observe the child in the care of the father and his partner?

61The Society shall have 30 days from the date of the decision to comply with the Order. The Society shall provide a copy of its reasons to the Board.

CONFIDENTIALITY ORDER

62Pursuant to Rules 30.1 and 30.2 of the Board's Rules of Procedure parties and their representatives must not use, share, discuss or disclose and Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board's proceedings.