D.P. v. Hamilton Children’s Aid Society, 2012 CFSRB 18

CHILD AND FAMILY SERVICES REVIEW BOARD

D.P.

v.

HAMILTON CHILDREN’S AID SOCIETY

REASONS FOR DECISION

Date: May 23, 2012

Citation: 2012 CFSRB 18

Indexed as: D.P. v. Hamilton Children’s Aid Society (CFSA s.68)

INTRODUCTION

1D.P., (the “Applicant”) filed an application on February 13, 2012 with the Child and Family Services Review Board (the “Board”). He is complaining about the Hamilton Children’s Aid Society (the “Society”) pursuant to subsection 68.1(4) 4 and 5 of the Child and Family Services Act (the “Act”).

2The Application was determined eligible on February 22, 2012 and in a Pre-hearing report dated April 25, 2010 the Applicant acknowledged that his application consists of the following issues:

That the Society has not heard his service concerns or heard him when decisions were made and has not provided him with reasons for decisions that affected his interests, regarding the following:

1. The Society’s investigations into concerns raised by the Applicant regarding allegations of emotional, physical and sexual abuse of his son by his mother and maternal grandfather.

2. The Society’s statement that the Applicant’s son was at risk of emotional harm in his care.

3. The conduct of and statements made by the worker [ ] related to the Applicant’s concerns.

3The Board conducted a hearing on May 9, 2012 and finds in favour of the Applicant, in part on issue numbered 1 and in favour of the Applicant on issue numbered 3. The Board finds in favour of the Society for issue numbered 2.

BACKGROUND

4The Applicant is the father of a 10 year old son, (the “Child”), and a 20 year old son, from a previous partner. He is no longer living with the mother of the Child and he has joint custody with the mother.

5Recently, the Society has been involved with the family for two investigations. The first investigation was initiated on November [ ], 2011 following a referral from the school that the Child disclosed that the father was mean towards him, speaks negatively about the maternal side of his family and throws things in the home. The Child also claimed that he gets hit in the back of the head. The second investigation was initiated on January [ ], 2012 when the Applicant complained that the concerns that he raised about the maternal family speaking negatively about him and his complaint of the maternal grandfather using pornography and masturbating were not investigated.

6The Society sent a letter dated February [ ], 2012 detailing the results of the two investigations and has closed the file.

ANALYSIS

7The main issues for the Board are whether the Society heard the Applicant as required when decisions were made or when he raised service concerns, and whether the Society provided him with explanations relating to the decisions made. 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:

(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;

8The reasons for the Board’s decision on the three issues are set out below.

1. The Society’s investigations into concerns raised by the Applicant.

2. The Society’s statement that the Applicant’s son was at risk of emotional harm in his care.

9The Board finds in favour of the Applicant, in part for issue numbered 1. The Board finds for the Society on issue numbered 2.

10The Society conducted an investigation into a referral from the school from November [ ], 2011 to December [ ], 2011 regarding the Child’s disclosure that the father is mean to him, spoke negatively about the maternal family, hits him on back of the head and throws things when he was angry. The Society concluded the investigation and in a letter dated January [ ], 2012 informed the applicant that his file is closed and that it had verified that the Child is at risk of emotional harm due to the Applicant’s actions which caused the Child to be upset. The Society did not verify the allegation that the Applicant threw things in anger and that he had limited care giving ability. The Society cautioned the Applicant about the things he says to the Child and was satisfied that the Applicant was working hard to respond to the Child’s needs and that there is no need for it to remain involved.

11[The Child Protection Worker], investigated the referral from the school. She interviewed the mother and the Child in November and interviewed the Applicant on two occasions. In the first interview the Applicant brought his older son to be interviewed by the Society. The Child Protection Worker came to his home on November [ ], 2011 to interview the Child and the Applicant. During this investigation, the Applicant brought forth his own concerns about the maternal family alienating him from the Child and that the maternal grandfather watched pornography, masturbated and bounced the Child on his lap in a sexual way.

12The Child Protection Worker verified risk of emotional harm by the Applicant and advised the Applicant and the mother in the letter of January [ ], 2012. The Child Protection Worker stated that she verified that there was a risk of emotional harm using the Eligibility Spectrum based on what the Child said and how it fits into the spectrum. The Child revealed that he was upset about what the father said about the maternal family, asked his father to stop and then went to his room. The Child Protection Worker spoke to the Applicant about some of her findings on November [ ], 2011. Regarding the allegations concerning the grandfather, the Child Protection Worker interviewed the Child who did not make any disclosures. The Child Protection Worker did not consider this a child protection issue. Subsequently, the file was closed.

13The Child Protection Worker stated that she generally calls the parties to inform them of the final results of the investigation, but could not contact the Applicant. The Applicant called her and she gave him the verification decisions. At the time she did not have her file with her and referred him back to their conversation of November [ ], 2011 about how the Child felt in response to certain incidents and how that can be harmful. The Applicant requested that their conversations be recorded. The Child Protection Worker said that she would have to consult with the Society’s legal department.

14In late January, the Applicant contacted [ ], Supervisor, Intake Services, (the “Supervisor”) to get more information on the investigation, and why witnesses were not interviewed. He also contacted [ ], the complaints officer. The Applicant wanted to know the reasons why there was a finding of risk of emotional harm and he did not feel that his concerns of the grandfather had been investigated. The Supervisor decided to reopen the file around January [ ], 2012 because of the Applicant’s concerns about the grandfather and the mother witnessing the Applicant hitting the Child on the back of the head. The Society interviewed the Child and the grandfather. Both of them denied that the grandfather held the Child in his lap and the Child made no allegations against the grandfather. With regards to the grandfather watching pornography in his home, the Society did not consider it a child protection concern as long as children are not in the home. The Society concluded the second investigation and did not verify the Applicant’s concerns about the grandfather. The Society did not find any evidence of the maternal family alienating the Child against the Applicant. However, the inappropriate use of physical discipline by the Applicant was verified. The Society cautioned the Applicant and closed the file. The Society sent a detailed letter dated February [ ], 2012 to the Applicant and the mother setting out the results of both investigations and the reasons for their decisions.

15To be heard means that a person has a chance to tell his side of the story, in a respectful context where the society listens with an open mind. The Child Protection Worker, when conducting her investigation, interviewed the Applicant twice. During this time, he had the opportunity to voice his concerns of the alienation by the maternal family and his allegations against the grandfather. The Society interviewed (at his request) his eldest son who had resided at the grandfather’s house and told the Applicant about the pornography. The Child Protection Worker interviewed the mother and the Child regarding these issues. The Society gave the Applicant a chance to present his version of events and took his position seriously with respect to the allegations about him.

16There was limited evidence about how the Society responded to the concerns raised about the maternal family after the initial disclosure by the Applicant and his older son. The Board is not clear when the decision was made about these allegations and it seems that they were not fully addressed until after the Applicant raised them again. Therefore, given the lack of response to the concerns, on the evidence before the Board, the Society did not hear the Applicant when he first raised concerns about the maternal family.

17With respect to reasons, the Applicant is entitled to meaningful reasons in order to help him understand what happened and why. Reasons, like being heard, enable applicants to be meaningful participants in the process. It is not clear to the Board that after the initial investigation, the Child Protection Worker reported the results of the investigation to the Applicant on all issues and gave reasons for that decision. The letter of January [ ], 2012 gave the results of the initial investigation, but did not address the Applicant’s concerns about the maternal family. Thus, the reasons were not responsive to the Applicant’s concerns about the maternal side of the family and therefore, were incomplete and not meaningful.

18When the Applicant complained to the Supervisor that his concerns were not investigated, the Society definitely listened to his concerns at that time and opened the file again. The Society did another investigation and interviewed both the Child and the grandfather. At the conclusion of the second investigation, the Society did not meet with the Applicant to discuss the results. According to the Supervisor, the Applicant refused to meet with them about the issue of inappropriate physical discipline, but was amenable to either meeting with them regarding his concerns or accepting the decision in writing. The Society chose to give him the results of their decision and the reasons in the letter of February [ ], 2012.

19With regards to issue 1, the Board finds that when the Applicant raised service concerns and after the second investigation, the Society heard the Applicant when making its decision about the outcome of the investigation. Further, the Society gave him reasons for their decision. The letter of February [ ], 2012 detailed what the Society did and the reasons for their findings. The Society interviewed both the Child and the maternal grandfather. The Society concluded that with regards to the maternal grandfather watching pornography in his home, it was not a child protection concern as long as children are not in the home. With regards to the grandfather holding the Child in his lap, both the Child and the grandfather denied this. As well, the Child made no allegations against the grandfather. With regards to the Applicant’s concern that the maternal family alienated him from the Child by saying inappropriate things about him, the Society interviewed the Child who made no disclosures about this. The Child said that the maternal family does not speak of the Applicant at all and when the Child tells them the negative things the Applicant says about them, their response is that he can say what he likes. The Board considers these reasons as sufficient for the Applicant to understand what happened and why.

20With regards to issue 2, that the Child was at risk of emotional harm while in the care of the Applicant, the Board finds that the Society heard the Applicant and gave him reasons for the decision. The Society during the investigation met with the Applicant in face to face interviews and gave him the opportunity to be heard. On November [ ], 2011, the Child Protection Worker spoke to him about some of her findings in person. She also spoke to the Applicant on the phone and gave him the results of the investigation which were also summarized in the letter of January [ ], 2012. The Society’s position on the Applicant’s request to record face-to-face meetings is that the Society will decline recorded meeting as recordings can be altered. The letter of February [ ], 2012 gave the Applicant details of the Society’s findings. The Society verified risk of emotional harm due to the Applicant’s actions and described three incidents that the Child disclosed which caused him to be upset or to cry. The Child also disclosed that the Applicant continues to hit him on the back of the head despite being cautioned about this. The Society described the incident in which the mother witnessed the Applicant hitting the Child on the back of the head. The Board finds that the Society’s reasons are sufficient for the Applicant to understand the decision that was made and why. The Board finds that the Society has met its obligations to the Applicant and dismisses this second issue.

3. The conduct of and statements made by the worker [ ] related to the Applicant’s concerns.

21The Board finds in favour of the Applicant on this issue.

22The Applicant complained to the Society about the Child Protection Worker and some of the things she said about his concerns. The Applicant alleged that she said that his complaint about the grandfather was not an issue and said, “I don’t know what you are talking about” when he questioned her about his concern of alienation by the maternal side of the family. The Applicant felt that this statement was provocative and lead him to believe that an investigation was not done. The Child Protection Worker did not recall this response. She did not have the file with her during this conversation and may have wanted to refer to the file. When he spoke to the Supervisor in January, the Applicant asked her to remove the Child Protection Worker from the investigation. The Supervisor refused, saying that the Child Protection Worker was familiar with the file. The Supervisor testified that she kept the Child Protection Worker as the lead investigator despite the Applicant’s complaints because she did not believe that the Child Protection Worker was biased or not objective.

23The Board finds that the Society did not hear the Applicant or provide him with meaningful reasons as to why the Child Protection Worker was not taken off the investigation. According to the Applicant, he was only told that she was “familiar with the file”. There is no evidence before the Board that the Society listened to his complaint in an open manner. Evidence of this would include a genuine attempt to follow up on the concerns by speaking with the worker. Nor was there evidence that the Society gave a fulsome response with reasons as to why the Child Protection Worker was not taken off the investigation. The overall approach to the Applicant was superficial and not responsive to the position he had put before the Society. Since the Child Protection Worker was investigating his complaints, this decision definitely affected the Applicant’s interests. The Board finds in the Applicant’s favour and makes a corresponding order below.

CONCLUSION

24The Board finds that the Society did not hear the Applicant when it first made the decision as to how to respond to his concerns about the maternal family and it did not give him reasons for this decision (issue 1). However, the Board finds that subsequently, after he raised service concerns, the Society heard his service concerns, heard him prior to making the decision that there was no alienation or abuse and provided him with detailed reasons (issue 1). Therefore, the Board makes no order regarding issue numbered 1. The Board dismisses the allegations in issue numbered 2.

25The Board finds that the Society did not hear the Applicant’s service concerns about his worker and did not provide him with reasons for the decision to keep her on the file. The Board orders the Society to provide detailed written reasons to the Applicant as to what steps it took in response to his service concerns about the worker and why the Child Protection Worker was not taken off the investigation despite the Applicant’s concerns. The Society will have fifteen days from the date of this order to provide these reasons.

FINAL ORDER

26Parties 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.

RUTH ANN SCHEDLICH

_________________________

Ruth Ann Schedlich Presiding Member

FRANCES SANDERSON _________________________

Frances Sanderson Panel Member

MARY WONG _________________________

Mary Wong Panel Member