T.C. and D.D. v. Children’s Aid Society of London and Middlesex, 2012 CFSRB 5

CHILD AND FAMILY SERVICES REVIEW BOARD

T.C. and D.D.

v.

Children’s Aid Society of London and Middlesex

REASONS FOR DECISION

Date: February 3, 2012

Citation: 2012 CFSRB 5

Indexed as: T.C. and D.D. v. Children’s Aid Society of London and Middlesex (CFSA s.68)

INTRODUCTION

1On November 9, 2010, T.C. (the “Step- Grandmother”) and D.D. (the “Grandfather”) (together: the “Applicants”) filed an application with the Child and Family Services Review Board (the “Board”) against the Children’s Aid Society of London and Middlesex (the “Society”) pursuant to section 68.1 of the Child and Family Services Act (the “Act”). The application was found to be eligible for review under section 68.1(4) 5 on November 16, 2010.

2A pre-hearing conference was held on August 5, 2011. The Grandfather provided written consent for the co-Applicant to speak on his behalf at the Pre-Hearing Conference. The Applicants alleged:

• That the Society had not provided the Applicants with an explanation for not taking seriously their concern about the safety and wellbeing of their granddaughter.
• That the Society had not provided the Applicants with an explanation for not addressing their concerns about the lack of parenting skills of their granddaughter’s mother.
• That the Society had not given the Applicants an explanation for allowing their granddaughter to return to the care of her mother.

3The Society argued that the Applicants’ complaints are without merit and that the Board does not have jurisdiction to hear the application.

4At a hearing held on January 13, 2012, the Board held that it had jurisdiction to review the Applicants’ complaints that the Society failed to provide them with reasons for its decisions affecting their interest related specifically to kinship placement. The Board then proceeded to hear evidence on the merits of the application. Following testimony on this complaint by the Applicant who was present at the hearing and one Society employee, the Board reserved its decision. Following a thorough examination of the testimony and documentary evidence, the Board has determined that the Society had not provided explanations to the Applicants that addressed their concern regarding the kinship placement of their granddaughter in their home

BACKGROUND

5The Applicants are the paternal grandfather and step grandmother of [ ] (the “Child”), who is three years old. The Society removed the Child from the care of her mother on September [ ], 2010.

6The Society contacted the Applicants on September [ ], 2010 looking for their son, the Child’s father, [ ] (the “Father”). The Father was incarcerated at that time. The Father provided written consent for the Applicants to receive information and discuss the case with the Society.

7The Applicants informed the Society in October 2010 that they wished to be kinship providers to their granddaughter.

8The Applicants raised concerns about the care of their granddaughter and where she was placed. According to the Applicants, the Society did not respond to their offer to be a kin placement. Consequently, the Applicants filed this complaint with the Board.

ANALYSIS

Jurisdiction Decision

9The Applicants are complaining that they were not provided with explanations regarding their concerns about the safety and wellbeing of their granddaughter; their concerns about the lack of parenting skills of their granddaughter’s mother and their concern that the Society allowed their granddaughter to return to the care of her mother; and more specifically, why the Society did not respond to their offer of a kinship placement for the Child.

10The Board must decide if it has jurisdiction over the matter pursuant to subsection 68.1(4) 5 of the Act, which deals with allegations that a Society failed to provide reasons for decisions that affect a complainant’s interests.

11The legislation states:

68.1 (1) If a complaint in respect of a service sought or received from a society relates to a matter described in subsection (4), the person who sought or received the service may

(a) decide not to make a complaint to the society under section 68 and make the complaint directly to the Board under this section.

68.1(4)

The following matters may be reviewed by the Board under this section:

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

12The Board heard the Society’s jurisdiction motion on January 13, 2012. The Society submitted that the Applicants did not fall within the purview of s.2 (2) (a) in that they are not “children and their parents” and could therefore not complain that their rights accorded by this provision had been breached. Section 2 (2) (a) states:

2(2)(a) 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.

13The Board agrees with the submissions of the Society that the Applicants were not parents under s. 2(2) (a) of the Act and therefore they did not qualify as parents to complain about services sought or received from the Society under s. 68.1 (4) 4 of the Act.

14The Society argued further that the Applicants were not persons seeking or receiving services from the Society. The Society explained that their contact with the Applicants was solely to serve the father. The Society further argued that they did not engage the Applicants in any provision of service. The Applicants could therefore not make a complaint to the Board in respect to services sought or received.

15The Society submitted that they did not accept the Applicants’ invitation to have themselves as a potential kin placement and it was beyond the jurisdiction of the Board to review the placement decisions of the Society.

16The Board finds however, that the Court has a statutory obligation, prior to making any decision about temporary care, to consider kinship placements. Section 51 (3.1) which is part of the child protection section (Part III) of the Act states that:

51(3.1) Before making a temporary order for care and custody under clause 2 (d), the court shall consider whether it is in the child’s best interest to make an order under clause 2 (c) to place a child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.

17Therefore, the Society has a corresponding obligation to follow up on kinship options. The Applicants made an expression of interest to the Society to be considered for kinship placement. This created an association between the Society and the Applicants.

18“Service” is defined in the Act to include a child welfare service, which in turn includes a service provided under part III of the Act [s. 3(1)]. Assessing the propriety of a kin placement is a service provided to the grandparents under the child protection provisions of the Act. Further, the decision not to consider them for placement affected their interests as required under s. 68.1(4) 5. Grandparents, as kin, have a bond to their grandchildren that is recognized in the Act. Their interest in this bond and in becoming caregivers for their grandchild was impacted by the decision.

19As such, a service was sought by the Applicants and their complaint relates to a decision that affected their interest under 68.1(4) 5 of the Act. Therefore the Applicants qualify to have their complaint reviewed by the Board as persons seeking or receiving service.

20The Board finds that it has jurisdiction under section 68.1(4) 5 of the Act to hear the complaint from the Applicants. Section 68.1(4) 5 empowers the Board to review whether the Society offered explanations to the Applicants about the decisions that they made with regard specifically to the Applicants desire to offer a kinship placement in their home.

Decision on the Merits

21The Board must determine if the Society has failed to provide the Applicants with reasons for decisions that affected their interests in its decision regarding kinship placement. The Board has determined that the Society did not meet its obligations to the Applicants.

22The Grandmother attended the hearing and will be identified hereinafter as the “Applicant”. The Board was satisfied that the Grandmother had the permission of the Grandfather to represent his interests at the hearing.

23The Applicant testified that there was no contact with the Society for over two weeks after the initial phone call in which the Society’s social worker indicated that the Child had been taken into care. The social worker was seeking the whereabouts of their son. The Applicant explained that after numerous calls to reach the worker, she finally was able to speak to the Supervisor who explained the entire process for kinship placement.

24The Applicant stated that the worker called a couple of days later to say that other people were interested in providing care and the services of the Applicants were no longer required. Furthermore, from the time the Child was apprehended (September 2010), until the date the application was made to the Board, neither the Applicants nor the Father knew where the Child was living. They gained information that the Child had been placed with a maternal aunt through a Facebook page in January 2012. The Applicant further stated that no explanation was given about why the Child wasn’t placed with the Applicants.

25The Protection Supervisor who testified on behalf of the Society stated that the Child had been placed in a kin in care home on October [ ], 2010, shortly after the apprehension had occurred. This home was that of the maternal aunt who was a trained foster parent with the Society. The aunt had heard that the Child and her sister had come into the care of the Society, were in a receiving home and were about to be moved to a foster home. She called the worker immediately and asked that both children be placed with her. This was an ideal opportunity because her home had been pre-approved, which facilitated an immediate placement for the two girls. The Protection Supervisor also stated that this arrangement suited the Society’s goals of having a minimum number of moves for the girls and for returning the children to the mother in December, 2010.

26The Applicant indicated that she was satisfied that the Child was being well looked after and was safe in this kin care home and her interests were being met. However, she felt that her rights were not observed.

27The Protection Supervisor apologized to the Applicant for the Society not having called the Applicant back at the time of the placement with the aunt. She testified that in this situation, the Society would have indicated where the granddaughter was residing, given an explanation of the reasons for this kinship placement and the reasons for the decision not to place the granddaughter with the Applicants. Both the Protection Supervisor and counsel on behalf of the Society, expressed their empathy to the Applicant and apologized for not following up with the Applicants, as would be the normal course of action by the Society in similar circumstances.

28The Board accepts that the testimony of the Society’s witness was consistent with that of the Applicant. Both the Society and the Applicant concur that the Society failed to provide explanations in a timely manner to the Applicants about why they were not considered for kinship placement. This lack of information negatively impacted the Applicants.

DECISION

29The Board finds in favour of the Applicants with regards to their complaint under s. 68.1(4) 5, that the Society has failed to provide them with reasons for a decision that affected their interest related to the placement of their granddaughter with them in a kinship care.

30The Board notes the apology provided by the Society to the Applicants. It also considers the reasons given to Applicant during this hearing to be adequate and does not order written reasons.

ORDER

31The 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 internet.

Richard Linley

Richard Linley

Presiding Member

Judy Finlay

Judy Finlay

Panel Member

John Gates

John Gates

Panel Member