A.M. v. Children’s Aid Society of Toronto, 2012 CFSRB 36

CHILD AND FAMILY SERVICES REVIEW BOARD

A.M.

v.

CHILDREN’S AID SOCIETY OF TORONTO

REASONS FOR DECISION

Date: September 10, 2012

Citation: 2012 CFSRB 36

Indexed as: A.M. v. Children’s Aid Society of Toronto (CFSA s.68)

INTRODUCTION

1A.M. (the “Applicant”), filed an application with the Child and Family Services Review Board (the “Board”) pursuant to subsection 68.1(4) 4 and 5 of the Child and Family Services Act (the “Act”) against the Children’s Aid Society of Toronto on January 30, 2012.

2The Applicant alleges that the Society failed to hear her service concerns or hear her when decisions were made. She further alleges that she has not been provided with reasons for decisions that affected her interests regarding;

• The hours of access provided by the Society

• Concerns that the Society was unfamiliar with the family’s history

• Concerns regarding the child’s health

• Concerns regarding information in a letter from the Branch Director, dated February [ ], 2012

• Reasons why workers don’t respond in a timely manner.

3The Society’s position was that it provided access three times per week as Court ordered, that it had clearly communicated with the Applicant both verbally and in writing and provided answers to all of her questions and concerns as documented in their correspondence dated February [ ], 2012 and May [ ], 2012.

4This Hearing was conducted with the assistance of a translator as [ ] is the Applicant’s first language. Hearings scheduled for June 1, and June 27, 2012 were cancelled by the Applicant.

BACKGROUND

5The Applicant is the mother of a nineteen month old daughter who was apprehended from the hospital and placed into care by the Society. The Court ordered three access visits per week for the parents, at the Society’s discretion. The Society was granted Crown Wardship with no access on June [ ], 2012 by Justice [ ].

ANALYSIS

6The Board must determine whether the Society heard the Applicant when she raised concerns about the services received and when decisions were made and whether the Society gave her explanations for decisions made that affected her interest.

7This application was made under section 68.1(4) 4 and 5 of the Act. Section 68.1 (4) of the Act gives the Board the authority to review the following:

• 68.1 (4) 4. Allegations that the society has failed to comply with clause 2 (2) (a);

• 68.1 (4) 5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

2 (2) Service providers shall ensure,

(a) that children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving;

8The 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.

9To be heard involves active listening, discussions, the Society taking steps to address the Applicant’s concerns and communicating this to her so that she feels that her concerns are taken seriously and investigated thoroughly. This would indicate to the Applicant that she was treated with honesty, dignity and with respect, even though she may not agree with the outcome.

10The Board finds that the Society heard the Applicant with respect to the hours of access provided by the Society and the question regarding why workers don’t respond in a timely manner. Her concern that the Society was unfamiliar with the Family’s file and her concern regarding the child’s health were not heard. The Applicant also complained about her concerns regarding information in a letter from the Branch Director, dated February [ ], 2012 however she did not state to the Board, what were her specific concerns about this letter. The Board dismisses this complaint

11To meet the statutory obligation, reasons must be timely and detailed and the Applicant must be given sufficient information to understand what factors were considered in making a decision and why. The Board finds that the Society failed to meet this obligation to provide sufficient, timely detailed information required to inform the Applicant with regards to her family history and the child’s health.

The hours of access provided by the Society

12The Applicant had court ordered access but also had concerns about the duration of access visits.

Section 68.1(8) of the Act states that:

68.1 (8)

The Board shall not conduct a review of a complaint under this section if the subject of the complaint

(a) is an issue that has been decided by the court or is before the Court.

13The Society indicated that the length of each visit was not specified by the Court and was at the discretion of the Society. The Board has jurisdiction to hear services’ concerns in relation to access visits when the Society exercises its discretion. The Board does not have the authority to modify a court order but may review how the Society uses its discretion when concerns are raised by the person who receives the services.

14It is now clear that the Board may have jurisdiction even when there is an ongoing child protection proceeding. The Board has jurisdiction to hear applications from parties who have or have had child protection proceedings before the Court, if the issues before the Board are service-related and relate to the society meeting its statutory obligations to listen to the concerns of parents and to provide reasons for decisions that affect the applicant’s interests. However, if the complaint is an issue that is before the Court to make a determination, or if the Court has made a finding on the service-related issue, that is, it has decided the issue, then the Board has no jurisdiction to hear the merits of the complaints. Applicants v. Society, 2011 CFSRB 25 referring to: Children's Aid Society of Waterloo v. D.D., 2011 ONCA 441

15The Board dealt with the service complaints about the access visits on the merits and determined that the Society heard the Applicant and did provide opportunities for her to have meaningful discussions with regards to her complaints regarding access visits with her daughter.

16The Applicant testified that the duration of her access visits with her daughter was reduced by the Society after she had a fight with the pharmacist on December [ ], 2011, when she called the methadone clinic to make an appointment to obtain her daily methadone. She and her husband requested documentation from the Society regarding who reported the fight and were told that two persons had reported the incident verbally and the requested information was confidential.

17The Applicant reported that the allegations regarding the fight were untrue and her lawyer was unsuccessful in obtaining the documentation from the Society. In her application and her testimony the Applicant believes this incident caused her access visits to be substantially reduced from four hours twice weekly to two hours twice weekly. The third weekly visit was not reduced and continues to be three and a half hours.

18The Society did not present any oral evidence regarding its investigation of this incident or verification of the fight. According to the letter of February [ ], 2012 in the meeting of January [ ], 2012 with the Branch Director and [the Society Worker], the Applicant requested information regarding who made the referral regarding the fight and the Society replied that it was confidential unless required for court purposes. The Applicant admitted that this incident occurred in the centre with Society workers present but she wanted to know who reported the incident. She was advised by the Society that it was against policy to divulge this information except for court purposes.

19The written evidence of the Society’s response to the Applicant’s concerns prior to the application to the Board is documented in the letter of February [ ], 2012 which follows the January [ ], 2012 meeting. The Society lists inappropriate behaviour in the Centre as one of the five reasons which lead to a decrease in access visitation hours and confirms that referral information is always confidential unless required for court purposes. The meeting also explained that the centre’s mandate is to create an environment for all families conducive to learning and to respond promptly to disruptive behaviours.

20The Society addressed the issue of access reduction in the January [ ] meeting with the statement in the February [ ] letter: “You were very upset that the time you are permitted to spend with your daughter has been decreased’’. The letter goes on to say that the Service Team has explained the reasons to the Applicant however they were outlined once again for clarity during the meeting and documented in a letter dated February [ ], 2012. The five reasons are;

• The Service Team had received a referral expressing concern about the Applicant’s behaviour and the impact it might have on her child
• The Applicant’s behaviour during some of the access visits suggested to the Society that shorter visits might be more beneficial for the child
• The fact that the Applicant’s husband often slept through significant portions of the access visit and both parents would have long and unexplained absences from the visits at times. They presented a plan to care for the child together but demonstrated difficulty visiting her consistently together,
• The Society had experienced significant difficulty securing the Applicant’s co-operation for hair testing

• The Society’s plan had shifted to Crown Wardship for the Applicant’s daughter

21The Society’s responses to the Applicant’s continuing questions regarding the reduction of access are detailed in its May [ ], 2012 correspondence from [ ], Senior Child Welfare Worker who introduced the letter into evidence. The letter confirms a meeting on Friday March [ ], 2012 and is in response to the Applicant’s request for written explanations. It confirms that access was reduced because of two reasons namely; “the Applicant’s hair test results reflected cocaine usage in November 2011 of approximately 2-4 times per week, a marked decrease in use in December and a likely cessation of cocaine use in January 2012. The results were very high for marijuana, codeine and morphine were also detected, within the range of a prescription” the letter also states that the husband’s hair tested positive for cocaine and “reflected daily use at a high level. Codeine, morphine and oxycodone were also detected, within the range of a prescription”. The test was completed on hair samples obtained from the couple on February [ ], 2012.

22The Society Worker [ ] met with the Applicant and her husband to discuss the drug testing results on March [ ], 2012. Both parents denied using prescription drugs. They did not provide copies of their current prescriptions to explain the codeine and morphine results and neither party was involved in drug treatment.

23The Society voiced its concerns in the May [ ], 2012 correspondence that the Applicant had not been meeting the case planning objective with regards to living independently of her husband therefore the Society would be seeking to make her daughter a Crown Ward with no access for the purpose of adoption.

24The Applicant testified to the Board that she was unaware of the Society’s May [ ], 2012 reasons for reduced access until she got the letter which stated “cocaine” issues. She did not address the other findings from the hair test. The Senior Child Welfare Worker testified that the letter was the follow up to the March [ ], 2012 meeting with the Applicant to discuss the reasons for the reduced access visits with her daughter and further on March [ ], 2012 [the Society Worker] had met with the Applicant to discuss the drug test results.

25The Applicant stated that at the date of the hearing she had missed over twenty visits with her daughter due to cancellation by the Society. She believed the cancellations were mainly over the Christmas period and the reasons given to her were that either the driver cancelled or the centre was closed. She believes that her present worker cancelled most of her visits as a result of her complaints. The Applicant testified that when she requested make up visits her worker gave her less visits than she had missed. The Applicant was unable to verify the dates of the missed visits. The Society committed to investigating all access issue that has arisen after the application was filed with the Board.

26In the Applicant’s meeting with the Branch Director on January [ ], 2012 prior to her complaint being filed with the Board, this access concern was addressed with the Applicant. The Society’s letter states that the team has offered make up visits as early as they were able to do so and that access time has been reduced as per reasons which were clearly stated in the Society’s letter of February [ ], 2012. The new worker, the Senior Child Welfare Worker testified that he took carriage of the file on February [ ], 2012 and by mid March all of the makeup visits had taken place but the visiting time was reduced from four hours to two hours on weekdays. The Saturday visit remained the same effective March [ ], 2012.

27The Applicant believes that her new worker did not plan her make up access visits appropriately however he testified that the plans were made and confirmed a month or two in advance so all of the makeup visits were planned before he took carriage of the file on February [ ], 2012. In the Applicant’s meeting with the Society on January [ ], 2012 it was confirmed that the makeup access visits had already been scheduled and access visit time had already been decreased therefore these decisions were made prior to the Senior Child Welfare Worker taking carriage of the file

28The Applicant stated that she had been assigned a desirable room in which to visit her daughter and the Society changed her room to a small cold room which made the baby ill with a cold. The Society offered a heater and blankets to alleviate the cold; however the Applicant believed that the Society deliberately scheduled her visits in the undesirable room.

29The Society informed the Applicant that they had no control over the individual room temperature settings and the larger rooms were booked for larger families. It could also not guarantee that she would always have the same room for her visits. This concern was addressed in the January [ ], 2012 meeting with the Society’s Branch Director and [the Society Worker] and confirmed in a letter dated February [ ], 2012. This explanation did not satisfy the Applicant. The Society moved its visiting rooms to a new location at the end of 2011 and this concern was resolved as all of the rooms are large.

30The Board finds that the Society heard the Applicant and did provide opportunities for her to have meaningful discussions and input with regards to her complaints regarding access visits with her daughter prior to her application with the Board. The Branch Director and her worker [the Society Worker] met with her on January [ ], 2012, and followed up with a detailed comprehensive letter on February [ ], 2012, addressing the Applicant’s complaints and the Society’s response. After the filing of her application, the Senior Child Welfare Worker responded to her continuing questions by meeting with her on March [ ], 2012 and documented the meeting on May [ ], 2012. Both meetings offered detailed explanations for the decrease in access time namely drug related issues and permanent placement plans for the child. As well, explanations regarding the cancellation of visits over the Christmas holidays due to the closure of the centre and driver no shows were discussed and documented. The makeup visits and visiting room allocation concerns were also addressed in the January meeting.

31The Board also finds that her new worker, the Senior Child Welfare Worker did not have carriage of her file during January when most of her complaints were lodged with the Society and therefore he could not have influenced the service she received from the Society. The Applicant believes that a fight that she had with pharmacy personnel resulted in the decrease of her access visits and to date the Society has not addressed her questions with regards to who reported the fight. The Applicant acknowledges that she had the fight in the presence of staff members and that the Society has offered to provide the information on who made this referral only for court related purposes.

32The Board finds that the Society provided the Applicant with opportunities to be heard and also provided her with detailed reasons both orally in meetings and in written correspondences to help her to understand why the access hours that she was permitted to spend with her daughter had been reduced. The meeting of January [ ], 2012 comprehensively covers all of the Applicant’s concerns regarding this matter.

The Board finds that the Society met its obligations under the Act to the Applicant regarding access visits.

Concerns that the Society was unfamiliar with the Family’s History

33The Board finds that the Society did not meet its obligations to the Applicant regarding her concerns that the Society was unfamiliar with the family’s history, leading to breaches of confidentiality.

34The Applicant testified that her family was very unhappy that she had discontinued her education to become a mother. She did not want members of her family to know any of her personal information and when she found out that a January [ ], 2012 meeting was planned between the Children’s Service Worker, another Society employee and her sister she requested that the Society cancel the meeting. The Society did not cancel the meeting and the Applicant was enraged when she later found out that her husband’s hair test results were disclosed to her sister. The Applicant testified that the worker told her that her family needed to be told of her personal information. She subsequently had a very serious fight with her sister and was estranged from her for five or six months.

35In the letter of February [ ], 2012 the Branch Director offers her “regrets” with regards to the Society’s communication with the Applicant’s family which had caused “significant problems”. She also states that the communication was to satisfy the Society’s obligation under the CFSA to determine whether there is a viable placement for the child with her extended family.

36The Board finds that the Society did not hear the Applicant when she objected to a meeting between her sister and the Society to plan for her child. The Society despite her objections held the meeting and disclosed personal and private information to her sister. The Society did not handle the situation in a sensitive manner in light of the family situation where the Applicant’s family was unhappy with her choices. The Society also did not make a serious effort to educate the Applicant of its statutory duty to communicate with her family about placement and the limits on that duty so that she could understand that this is a legal requirement about placement options. Nor did they honour her wishes that the personal and private information about her husband should not be disclosed to her family. The Society did not engage in a meaningful discussion with the Applicant to elaborate on what her concerns were or to set appropriate boundaries for information sharing. The reasons they gave were insufficiently detailed and were after the fact, denying the Applicant a full understanding of the balance needed and of the opportunity for input.

37The Society did not meet its obligations to the Applicant under s. 68.1 (4) 4 and 5 on this issue.

Concerns regarding the child’s health

38The Board determined that the Society did not meet its obligations to the Applicant regarding some of her concerns regarding the health of her daughter. She was not heard nor did the Society provide reasons for some of its decisions.

39The Applicant reported to the Society that the baby had a “nappy rash”, a burn scar on her stomach and a scratch on her nose. She communicated this information to the foster mother via the communication book. The foster mother informed her that the scratch was from playing in the park in May 2012, when she fell. The nappy rash had been treated by the doctor who prescribed a cream which had been effective. The Applicant asked the Society for a repeat prescription of the cream and testified that no one followed up with her. She also wanted her daughter to wear cloth diapers instead of plastic diapers and she offered to pay for this but the Society did not honour her request.

40The Society entered into evidence a letter written to the Applicant on May [ ], 2012 by the Children’s Service Worker informing the Applicant that the diaper rash had healed and that the child’s superficial scratches had been sustained from play with peers and exploration in the park. The letter also states that the matter had been previously addressed with the Applicant and the benefits of play had been explained to her.

41The Society did not enter any evidence with regards to the burn scar on the child’s stomach or its reasons why cloth diapers were not used for the Applicant’s daughter.

42The Board finds that the Society did not hear the Applicant’s concerns or provide her with reasons regarding her preference for diapers for her daughter. The Society did not discuss the matter with the Applicant or seek her further input. Her inquiry was ignored and the child continued to wear plastic diapers. No reasons were provided to help the Applicant understand the Society’s decisions to use plastic diapers. The Society also did not hear her concerns regarding the burn scar on her daughter’s stomach or provide her with reasons as there was no evidence of follow up and no explanation was given to her for the scar. The Board finds that Society did not meet its obligations to the Applicant under the Act regarding the health of her daughter in regards to a scar on her stomach and why she could not wear cloth diapers.

Concerns regarding information in a letter from the Branch Director, dated February [ ], 2012

43The Board finds that the Applicant did not make out a case for her concerns regarding information in the letter dated February [ ], 2012 for which she had concerns. This concern was raised in the pre-hearing report but the Applicant did not go into the details of her concerns.

44The Applicant testified that the Society’s letter of February [ ], 2012 indicated that she did not have a plan to parent her daughter alone. The letter lists the Society’s expectations of the Applicant which includes separate residences for her and her husband and parenting the child independent of her husband.

45The Applicant testified that she moved to Scarborough on April [ ], 2012 and she was under the impression that her lawyer informed the Society that she was living alone and that she was separating from her husband.

46The Board finds that during the meeting of January [ ], 2012 and confirmed by the letter, the Applicant did not provide the Society with confirmation that she was living separate from her husband. The Society’s expectation of separation did not take place until April [ ], 2012. Further the Society’s evidence was that it did not receive this information until it was produced in Court at the June [ ], 2012 hearing. The Applicant did not produce any evidence to contradict the Society’s testimony as to when it received the information.

47The Board finds the evidence from the Applicant regarding her concerns were unclear as to its connection with the letter since she did not move into a separate residence until three months after the meeting with the Society. The Board dismisses this issue.

Reasons why workers don’t respond in a timely manner.

48The Board finds that except as indicated above, the Society has heard the Applicant and provided reasons regarding her concern that a worker had not responded in a timely manner to the Applicant’s concerns and questions.

49The Applicant raised her concerns about lack of timely responses from a worker at the January [ ], 2012, meeting with the Society.

50The Applicant testified that her previous workers were very accommodating and followed up on her concerns and provided answers. She reported that since workers [ ] and [ ] have left there has been no follow up. She stated that in the meeting of January [ ], the Branch Director acknowledged this but no one followed up with her. In the meeting with the Branch Director the Applicant had complained that the workers were hard to reach and she had left a message and waited ten days for a response. The Branch Director had explained during the January meeting that the employee had been away on vacation and therefore had not been able to respond to the message.

51Her current Senior Child Welfare Worker testified that he began working with the Applicant on February [ ], 2012 and he had three meetings with her in an attempt to resolve her issues and followed up with correspondence dated May [ ], 2012. He initiated a meeting between the Applicant and worker [the Society Worker] to discuss the drug test results and he also obtained a report dated May [ ], 2012 from the Children’s Service Worker with regards to the Applicant’s concerns about her daughter’s health. He routinely meets with her on a weekly basis.

52The Board finds that the Applicant complained about communications with a member of the staff at the January meeting and despite a change in personnel she was still unhappy with the Society’s communications. The Board finds that the Society heard the Applicant’s concerns about responsiveness because the Branch Director during the meeting with her provided an explanation that the staff member was on vacation and was unable to return her call. The Society provided her with timely reasons that contained sufficient detail, for lack of responsiveness where applicable because a meeting was held and an explanation was offered to the Applicant. Further, the actions of the new worker are indicative of the Society hearing the Applicant’s concerns because he has taken proactive steps to communicate with the Applicant, going forward.

DECISION

53The Board has found that the Society heard the Applicant and provided her with reasons when decisions affecting her interests were made and concerns were raised about the hours of access provided by the Society and the reasons why workers don’t respond in a timely manner.

54The Board determined that the Society did not hear the Applicant or provide her with reasons regarding the Society’s unfamiliarity with the Family’s history and her concerns regarding the child’s health. The Applicant did not make out a case regarding her objections and concerns regarding information in a letter from the Branch Director, dated February [ ], 2012 therefore the Board dismisses this issue.

55The Board orders the Society to provide detailed written reasons to the Applicant explaining its decisions including what steps it took and what factors it considered in making its decisions regarding the following matters, within 15 days of the date of this order:

1. An explanation as to why the Society made the decision not to use cloth diapers for the Applicant’s child as requested by her.

2. An explanation as to why there is a “burn scar” on the child’s stomach.

3. An explanation as to why the Society contacted the Applicant’s sister and gave her private information regarding the husband’s drug testing despite the Applicant’s request not to divulge this information to her family.

56The Board also orders that the Society meet its obligations under the Act by either meeting with Applicant in person or over the phone to discuss the written reasons provided, within 30 days of the date of this order

57As a recommendation, to better facilitate communication, the Board notes that the Applicant’s first language is not English and particular care must be taken by the Society to ensure that all relevant information is transmitted in a way that she understands.

Confidentiality Order

58The hearing was conducted in private and was not open to the public. 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 and the Board must be used only for the purposes of the hearing of this application