Applicant v. Children’s Aid Society of Northumberland, 2012 CFSRB 9

CHILD AND FAMILY SERVICES REVIEW BOARD

Applicant

v.

Children’s Aid Society of Northumberland

REASONS FOR DECISION ON MERITS

Date: February 13, 2012

Citation: 2012 CFSRB 9

Indexed as: Applicant v. Children’s Aid Society of Northumberland (CFSA s.36)

INTRODUCTION

1[The Applicant] filed an application under section 36 of the Child and Family Services Act (the “Act”) to the Child and Family Services Review Board (the “Board”) on September 28, 2011 for a review and determination of his placement at [the Facility].

2The Applicant brought this application because he had his placement reviewed by the Residential Placement Advisory Committee (“RPAC” or “advisory committee”) in [ ] on two occasions, with reports dated January […], 2011 and September […], 2011. He was dissatisfied with the RPAC recommendation that he remain at [the Facility], where he was placed by the Children’s Aid Society of Northumberland (the “Society”).

3This Application was heard by the Board on December 20, 2011 and on January 20, 25, and 26, 2012. The Board had to determine, based on the best interests of the Applicant, the appropriate placement for him. The issue was whether or not a less restrictive placement, such as a community based therapeutic group home or foster home, was appropriate. Also at issue was the appropriateness of [the Facility] as a placement, given several concerns raised by the Applicant.

4The Applicant’s position was that he wanted to be moved from [the Facility], his current placement, to a home based therapeutic setting that was less restrictive.

5The Society’s position was that given the Applicant’s background history and his current need for a structured environment, [the Facility] was the most appropriate placement for him.

6After careful review of the evidence, the Board has decided to discharge the Applicant from the residential placement at [the Facility]. The reasons for this decision and the Board’s order follow.

PRELIMINARY MATTERS

Order from Youth Court

7Before the current hearing, an order was obtained from the Youth Court, authorizing the use of the Youth Criminal Justice Act (“YCJA”) materials for the purposes of this hearing. This was required by the Board under the strict privacy provisions in the YCJA.

Jurisdiction

8On December 20, 2011, the Board heard arguments as to whether the Board lacked jurisdiction in this matter pursuant to the section 34 of the Child and Family Services Act, which reads as follows:

34. (1) In this section,

“residential placement” does not include,

(a) A placement made under the Young Offenders Act (Canada), under the Youth Criminal Justice Act (Canada) or under Part IV (Youth Justice).

9The CFSA specifically excludes from review any placements that are made under the YCJA. These placements are not subjected to the RPAC process and there is no appeal to the Board in these circumstances.

10The question for the Board was whether the Applicant’s placement was a child welfare placement and thus within the Board’s authority to review, or whether it was a youth justice placement and thus, outside of the Board’s authority.

11The Board found that it has jurisdiction to review the Applicant’s placement because it is a child welfare placement. The Applicant’s probation order did not convert the placement to a youth justice placement. This is so because of the wording of the order. The probation order dated May […], 2011 stated that the Applicant must:

“reside with:

at place approved by youth worker”.

12Under section 55 (2) (g) of the YCJA, the Youth Court can make a probation order that a youth “reside at a place that the provincial director may specify”. This was not that type of order. Rather, it was a looser probationary term. The probation order contains a series of boxes followed by language corresponding with the type of probation terms available under the YCJA. The box that is ticked off is the box corresponding to an order that a youth reside with a parent or adult under section 55(2) (f). The box corresponding to an order to reside under section 55(2)(g) is not ticked off. Had the Youth Court intended to make an order to reside at a place specified by the Provincial Director, it would have checked off the appropriate box which contains that wording.

13Further, the Applicant’s probation order used the language of “approved” and not “specified”. The term “approve” is defined as: “confirm, declare acceptable, give a favourable opinion”. The term “specify” means: “name or mention expressly; name as a condition” [definitions from: Canadian Oxford Dictionary (2nd)]. The probation officer (the youth worker) did not direct the Applicant to reside at [the Facility], but rather, had an obligation to approve (or not) his placement.

14The Applicant was placed by the Society at [the Facility] on July […], 2010. This was clearly a child welfare placement. Nine months later, he was placed on probation on May […], 2011. No change occurred, so it can be assumed that the probation officer “approved” of his existing child welfare placement. Had she not done so, the wording of the order suggests that the Society and not Probation would have had to find a new placement and take that placement to the probation officer for approval.

15An example of what could amount to a youth justice placement would be if the court named a specific facility or made an order giving the provincial director the authority to specify or direct the placement. This case is distinguishable from the Board’s decision in RP11-0001. In that case, the Court made an order for deferred custody requiring the Applicant to reside in such place as the Provincial Director or the Provincial Director’s delegate may specify.

16Having determined that it had jurisdiction, the Board proceeded to hear the application.

Order of Proceedings

17Counsel for the Society objected to the order of proceedings. In reviews of residential placement, it is the Board’s practice to have the Society proceed first, followed by the Applicant. The Society submitted that an Applicant should go first, as is the general rule in legal proceedings.

18The Board controls its own process. The Board engages in several types of cases under the CFSA involving the placement of children and youth. This includes emergency secure treatment, removal of children from foster care and from adoption placements. Under the Board’s Rules (or practice) in each type of case, the party seeking to justify the decision or placement (the Society or the facility) goes first and not the Applicant. This is so because they know the basis for making the placement or the decision. For reviews of residential placements, knowing the rationale behind the decision to place a child in a particular setting helps set the context for the parties and aids in the flow of coherent information. The Applicant can then respond. Should the Applicant’s evidence reveal information about a placement that is new, it is important that the Respondent be given a right of reply. This occurred to some extent in the present case and the Society declined to lead reply evidence.

BACKGROUND

19The Applicant, born December […], 1995, has just turned sixteen years of age. He has been in care since the age of 8. He was made a crown ward on October […], 2005. There has been sporadic contact with his mother, such contact usually initiated by the Applicant. In his eighteen months at [the Facility], he saw his mother for the first time at Christmas 2011.

20The family history is troubled and has contributed to attachment related issues for the Applicant. The Applicant has had difficulties relating to mood, impulsivity, relationship-building and oppositional behaviour.

21The Applicant was placed at [the Facility] on July […], 2010. [The Facility] provides a structured living environment for adolescent males. He lives at the [unit] at [the Facility], and he attends a section classroom on site. He is an intelligent young man who is an avid reader and writer. His long-term goal is to become a writer and a journalist.

22The Applicant is currently on probation for one year, based on one count of [ ]. His probation will end on May […], 2012.

23There were incidents in the Applicant’s background that led to the Society’s decision to place him at [the Facility]. This included sleep problems, many occurrences of going absent without leave (“AWOL”) and missing school, and a variety of defiant behaviours.

24The Applicant has made known to [the Facility] staff and to the Board his strong desire to leave [the Facility]. He believes he has gained as much as he can from his placement at [the Facility]. He also has raised concerns about the use of restraints, the amount of force staff use in the application of restraints, his failure to get staff to take him on community outings, the scope and impact of his meetings with his clinician, and the great amount of time he, like other youth, is required to spend in his room.

25At the hearing on the merits, the Applicant’s probation officer testified that she cannot comment on the appropriateness of the placement at [the Facility]. They do not place youth. Probation supports the placements of the Society and once a youth is placed, they approve the placement.

ANALYSIS

26Pursuant to section 36(1) of the Act, a child who is twelve years of age or older and lives in a residential placement that he objects to, can apply to the Board “for a determination of where he should remain or be placed” if the child has already had an advisory committee review and is dissatisfied with the committee’s recommendation. The Board must conduct a review and having done so, may:

36 (6)

(a) order that the child be transferred to another residential placement, if the Board is satisfied that the other residential placement is available;

(b) order that the child be discharged from residential placement; or

(c) confirm the existing placement.

27According to section 1(1), the paramount purpose of the Act is to “promote the best interests, protection and well being of children”. Section 36 does not come within a section of the Act that defines “best interests”. While the Board is determining placement on a de novo basis and not reviewing the RPAC decision, the Board took guidance from the factors that the RPAC is mandated to consider in section 34 (10) of the Act. The Board also took guidance from the definitions contained in the Act relating to child protection and adoption placement [s.37(3);s.136 (2)]. The Board took into account the following relevant considerations based on the sections noted above, which are also consistent with the case law about “best interests”:

• The child’s physical, mental and emotional needs, including special needs and the appropriate care or treatment to meet those needs, including programs available for the child and whether he would benefit from the program.

• The appropriateness of the placement in the circumstances, including whether a less restrictive alternative would be more appropriate.

• The child’s physical, mental and emotional level of development

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

• The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity

• The child’s views and wishes, if they can be reasonably ascertained.

28With respect to the less restrictive placement consideration, under subsections 61(2)(a) and (e) of the Act, the Society is obliged to choose a residential placement that is the least restrictive and that takes into account the child’s wishes if they can be reasonably ascertained. Upon placement review under section 35(3) of the Act, the advisory committee must recommend a less restrictive service where it considers that the provision of a less restrictive service would be more appropriate.

29When placed at [the Facility] on July […], 2010, the Society was looking for a setting that would provide a structured environment for the Applicant, after numerous unsuccessful placements in community settings, primarily group homes and foster homes.

30The Applicant’s placement history is relevant to the Board’s determination.

31The Applicant was apprehended on March […], 2004 and was placed in a foster home until April […], 2004. He was then placed in another foster home for just over a year with the [foster parents] (April 2004 to June 2005). This did not work out because they could not meet his needs and did not have training to deal with his responses. It was not the [foster parents’] choice for him to leave and [the foster mother] remains committed to the Applicant and to maintaining contact with him.

32He was then placed in a group home, [Group Home], in 2005, for three and a half years. He did relatively well until he was transferred to the group home for older youth. He was younger than the other youth and testified that he was bullied. He then ran away following a restraint, leading to a full scale police search. He was found at his mother’s. He then lived with a friend’s family for a few weeks. He was then placed in [an Organization] with a foster parent with staff support from March to April 2009. According to the Society, this was “not a good fit”. The Applicant then moved to [Organization B] for a brief time and then to another [Organization] foster home from October 2009 to April 2010. He was then moved to [Organization B] in [City], where he had difficulty sleeping and was up and out in the night. It was there that he had his worst experience and did not attend school. This move coincided with his transition into grade 9.

33When the Applicant was moved to [the Facility], the Society had concerns with his sleep patterns and with drug use. It was felt by the Society that the next level of intrusiveness was warranted. They looked at [the Facility]. They also considered [other facilities], both of which have intensive locked and unlocked treatment placement options. They chose [the Facility] because there was more structure and a treatment component which was not available at [the Group Home], where there was no counselling or treatment support. In July of 2011, following a period of “good behaviour”, [the Facility] moved the Applicant to one of its parent therapist homes [ ]. The Applicant ran away and was returned to the [unit]. The placement was not seen as a “good fit”. Approximately four months later (this included a time without medication), there was improvement in the Applicant’s interactions at [the Facility] to the point that it was consistently documented for a period of approximately two months leading up to the hearing.

34The Applicant testified that he has benefited from his current placement. He sees that he is much better able to control his behaviour, and that he is less argumentative than in the past. He said to the Board: “I’ve used [the Facility] as much as I can”.

35With regards to Dr. [ ]., the psychiatric consultant at [the Facility], the Applicant states that he is very satisfied with the medication regimen that Dr. [ ]. (“the psychiatrist”) has prescribed. When the Applicant moved to [the Facility], his problems sleeping were a significant factor in terms of his behaviour. He would be up all night and sleep during the day and school and behaviour would suffer. At [the Facility], the Applicant’s medication was monitored by the psychiatrist. He underwent a planned withdrawal of medications. His behaviour escalated and he asked to be put back on one of the drugs: [ ]. He saw the benefits of that medication which helps to regulate his mood and sleep. Currently, his sleep patterns are regular and he sleeps through the night.

36The psychiatrist was not called as a witness, leaving unanswered the current status of the numerous possible diagnoses listed in his report dated April […], 2009. The Board noted that it was of concern that there wasn’t a more recent psychiatric report available, given the date of the last report and the seriousness of the psychiatric illnesses that were being considered as possible diagnoses. It would be helpful to the Society to have an updated psychiatric assessment, possibly by a third party, to help in identifying the Applicant’s current condition and setting future treatment goals.

37There was some history and a suggestion of aggressive behaviour towards animals when the Applicant was younger. This has not reoccurred; in fact, the Applicant has done volunteer work at the [Agency] and has had a very positive experience with [the Facility’s animal] program. There was no evidence that animal cruelty was an ongoing concern. The evidence was to the contrary.

38The Applicant was so depressed by his placement at [the Facility] in September of 2011, that he cut himself with a vent cover after an incident in which he says staff threatened to send two youth to his room to beat him up. This incident involved conflict with staff and a restraint. The Applicant was on medication at the time that could have contributed to his reactivity. The Applicant’s evidence was that the staff report of the incident was exaggerated. In any case, it was an isolated event in terms of a gesture of self harm. Subsequently, the Applicant started to experience more of a sense of control over his behaviours and reacted less to staff. This could be attributed to the Applicant’s learning coping strategies and to the change in medication: both done with the help of [the Facility].

39The Applicant’s clinician (“Clinician”), explained to the Board his mode of counselling consists of avoiding intense discussion on feelings and affect, and instead focuses on behaviours, school achievements, and observable facts in day to day activities. His focus is on helping the Applicant with his reactions to stressors and not on insight based therapy, which he sees as not indicated for the Applicant. He did not feel that the Applicant needed to have therapy focussing on his past and its impact on him. He has seen improvements in the Applicant’s behaviour and school activities, especially in the last couple of months.

40The Applicant feels he is getting very little benefit from his sessions with his Clinician. He relates that their conversations are only about what he has done or what has happened in the past week. The Clinician charts behaviours. The Applicant indicates that the Clinician’s response to many issues that come up in their meeting is “just flow with it”. This is a recent strategy which has had an impact. The Applicant questions whether the overall approach is treatment. The Clinician’s intent in “flow” is to help the Applicant choose not to “flee” or not to “fight” in a difficult situation, but rather to learn to not necessarily agree but to accept a situation and “flow” with it. The Applicant recognizes that he has needed more active counselling; he also is adamant, and has indicated so to many people, that he is not interested in therapy that focus heavily on his past . He would like some help with the issue of present relationships with others with whom he interacts. He would also like more emphasis on discussing his future goals and how he could achieve them. He does not see [the Facility] as the place to get this still-needed counselling. The Applicant has a good history of keeping his scheduled appointments with his Clinician.

41While the Applicant has been very clear that he does not want to get into therapy where the emphasis would be on the past relationship with his mother and other developmental issues, he does see a need to focus on here-and-now issues such as how his behaviours, positive or negative, impact on his relationships with peers, staff, and others in the community. This level of insight would be acceptable and beneficial to the Applicant, but he is not getting this from his Clinician.

42Issues stemming from the likelihood that he has a mood disorder are re-enforced and aggravated by many situations at [the Facility], such as confinement to his room for some six hours per day, the constant threat of restraints, and the fact that he constantly gets overlooked for community outings because staff are permitted to choose to take the youth they like on outings. The Applicant interprets this as his not being liked or likeable, which reinforces his negative moods.

43A dilemma that presents itself for the Applicant is that the [the Facility] staff emphasize that he will be able to leave when “he does well”, yet he is severely restricted in this by the very limited opportunities to show that he is doing better, given the significant time he is required to spend in his room by himself, and in very structured activities like meal-times and school.

44The Program Supervisor’s, testimony spoke to a very high staff turnover. No exact statistics were submitted in evidence, but the Program Supervisor’s impression is that turnover would have meant that the Applicant would have seen some 20 new staff over the course of his 18 months at [the Facility]. The Board is concerned that it would be very difficult to maintain one-to-one relationships with youth and to attain therapeutic goals with this high rate of staff turnover.

45The Board is satisfied that with the help of [the Facility], the Applicant is currently stabilized on his medication for difficulties with sleep patterns and depression. He has developed a good understanding of the need for his medication, and is aware of the consequences if he were to go off his medication. His therapy model is behavioural in focus with an emphasis on how the Applicant does at [the Facility]. The Applicant has identified that he could gain more from another approach to counselling. He has started to make use of the skills he worked on with the Clinician in terms of “flight and fight” and has managed to modify his reactions. The Board is satisfied that from a treatment standpoint, the Applicant has stabilized and that he is open to further counselling.

[The Facility] rules and environment

46The Board heard from numerous staff of both the Society and [the Facility] that the program was a very structured program. This phrase would be repeated consistently, when discussing the general ambiance of the setting and the treatment needs of the Applicant. It appears to the Board that the rules that prevail at [the Facility] have become a hindrance to the progress of the Applicant.

47The Applicant and the staff are often in conflict over rules that appear overly rigid. The Applicant sees these rules as an effort to control him to an excessive degree. The rules also seem to have no underlying rationale to them, certainly not in a program that describes itself as a treatment program. For example, the Applicant’s bed time is 8 p.m.. This is so according to the Program Supervisor because prior to the last six weeks, he was unable to follow the rules or go to his room without being oppositional. It has stayed this way despite his acknowledged improved behaviour, without explanation except that he is “well on his way” to earning a later bed time.

48Further examples of the above are:

a) Between 8:00 and 9:00 p.m. the Applicant is confined to his room. During this period, the door of each room must be kept fully closed. One evening, the Applicant opened his door a few inches. Staff immediately pushed the door shut. The Applicant responded by opening the door again; the staff pushed it closed again. This escalated, with the Applicant once again opening his door slightly, with staff in turn pushing it shut forcefully. This rapidly escalated into a restraint in the Applicant’s room. This type of staff behaviour seemed unnecessary and unduly provocative in a rather insignificant situation.

b) If the Applicant needs to use the washroom during this 8:00 to 9:00 p.m. period, he is penalized by being required the next evening to be in his room 15 to 30 minutes earlier.

c) After 9:00 p.m., the residents’ doors are alarmed. If they need to use the washroom after 9:00 p.m., residents must first alert the staff, who will then disarm the alarm, and the resident can then proceed to the washroom.

d) At any time, a youth may be sent to his room for swearing or rude behaviour.

49The bedrooms are alarmed at night, requiring a youth needing to use the bathroom to first contact staff and wait for the alarm to be deactivated. The Board is concerned that this is a very intrusive procedure, with no obvious advantage for staff or the Applicant. The witnesses from [the Facility] did not provide a rationale for this practice.

50The Board is very concerned that sending the Applicant to his room as a consequence for unacceptable behaviour seems counter-productive, especially in view of the fact that he already spends hours alone in his room. As well, the Board is concerned about the amount of time that the Applicant, like other residents, is confined involuntarily to his room. The Applicant testified that all residents are in their rooms at the following times: 30 minutes after breakfast is finished, 20 minutes after lunch, 60 minutes after dinner, and for the Applicant, from 8:00 p.m. onwards until he falls asleep. The Applicant indicated that he typically goes to sleep at 11:30 pm, which means that he spends more than 6 hours daily by himself in his room. This evidence was not significantly different from that of the Program Supervisor who testified that youth spend time in their rooms after meals and school and when staff are preparing meals and preparing for outings. Some youth have a later bed time than the Applicant.

51The Applicant testified that he hates his room and that this puts him in a bad mood. He would very much prefer to play recreational sports, play video games, join in outings into the community, or work with staff at preparing dinner. He is bored when he is in his room. Residents are never allowed to visit one another in their rooms. For youth that have difficulty with relationships, both with peers and with adults, this extensive confinement to one’s room seems counter-productive.

52The Applicant’s worker from the Society, [ ], testified that she knew about his complaint about spending large amounts of time in his room. She was aware of the “one hour before bedtime” that he spent in his room. She indicated that she did not look into this issue further, nor has she spoken to the Applicant about it.

53The Board heard evidence about withholding the Applicant’s right to call the Office of the Provincial Advocate for Children and Youth (‘the advocate”). The Applicant testified that, after a particularly negative interaction with four staff, he wanted to call the advocate. This call was delayed by staff. The Applicant testified that, after he eventually called the advocate, the staff “started treating me badly”. The Board is concerned that the Applicant’s right to call the advocate was delayed and that a call to the advocate may have resulted in negative repercussions for him. Under section 103 (1) (b) (ii) of the Act, youth have an unqualified right to private access to the advocate at any time. This concern was raised for the first time in the Applicant’s testimony and the Respondent did not call reply evidence. The Board’s decision would not have been different if it had not heard this concern. However, the Board encourages the Society to look in to this issue.

54The Board concludes that the application of the rules is overly restrictive and at times, punitive, which is negatively impacting on the Applicant’s ability to feel that he has made progress. This was a clinical goal identified by his Clinician. For the Applicant, the lack of flexibility has served to fuel his feeling of defiance and has contributed unnecessarily to isolating him from others.

Restraints

55The Applicant complained about the number of restraints being used on him. The Society reports having received 15 Incident Reports and Serious Occurrence Reports between September […], 2010 and October […], 2011. A total of 17 Serious Occurrence Reports were submitted in evidence. Reference to other incidents, not necessarily involving restraints was included in the plan of care document, without details.

56[The Facility] currently uses the UMAB (Understand and Manage Aggressive Behaviour) model of restraints. Prior to 2011, [the Facility] used the TCI (Therapeutic Crisis Intervention) model. The improved outcome was described as fewer injuries to staff or residents with the UMAB model. All staff at [the Facility] have been trained in UMAB. [ ], Program Supervisor at [the Facility], has become a trainer for UMAB, and trains new staff when they start working at [the Facility]. He demonstrated for the Board some of the techniques used in this form of restraint. Substantially, it involves getting the resident on the floor, face down, and taking the outstretched arms upwards above the shoulder. This was described as uncomfortable, but not in any way painful to the resident undergoing the restraint. The Program Supervisor, [ ] also testified that the UMAB model makes much more use of verbal cues, before and in the early stages of the restraint, with the hope that the verbal cues will settle the behaviour for which the restraint is being used. However, when asked by the Board for some examples of verbal cues that the staff might use in an attempt to de-escalate a situation just before or in the early stage of a restraint, he was unable to come up with a single example of such verbal cues.

57The Applicant testified that most restraints to which he was submitted were painful. He indicated that when the arms get pushed upwards beyond a certain point, it becomes quite painful. This was contrary to the Program Manager’s evidence that restraints are “uncomfortable”. The Board accepts the evidence of the Applicant in this regard as he has experienced the restraints. Further, the Applicant described having heard on numerous occasions other residents screaming in pain when they were being restrained.

58According to the Clinician, [the Facility’s] restraint protocols are there to deal with physical aggression. The Clinician testified that for the Applicant, it is better to do “planned ignoring” of behaviours such as sit-ins, that don’t pose a risk. This would include throwing things in his room: “where there is no harm done”; the better practice is to ignore the behaviour and not try to stop it. According to the Program Supervisor, the main reason youth are restrained, including the Applicant, is that they are self abusive and physically aggressive to staff or peers. An examination of the reports on the use of restraints on the Applicant indicates that with a couple of exceptions, these are not the factors that precipitated the restraints. Rather, the practice was to try and stop “sit-in” type of behaviours, rather than ignore them as clinically indicated. This would then provoke or escalate the situation and a restraint would then be used.

59The Applicant is not aggressive and has not engaged in violent behaviour at [the Facility]. Testimony from [ ], the Applicant’s case manager at [the Facility], indicated that the Applicant has never needed a 1-on-1 staff, which is typically used with aggressive youth. Most of the Serious Occurrences concerning restraints gave no indication of any imminent harm to the Applicant himself or others as result of aggressive or threatening behaviour. Most restraints, it seems stemmed from issues of control in reinforcing the [the Facility] rules.

60The Applicant testified that several staff used the term “it’s go time” for example, in the context of saying to the youth something like: “if you hit me it is ‘go time’”, meaning they will “drop” the youth and restrain them. The message that the Applicant took from this was in the nature of a threat.

61The restraint that occurred on May […], 2011 led to concerns on the part of the Society. The worker [ ] reported that she had seen the Applicant with bruising and a red mark on his chin, as well as purple bruising on his left front/top of his shoulder. These marks were incurred during a restraint by the staff at [the Facility]. The staff alleged that the Applicant had been trying to incite a riot. The Applicant told his worker that he was holding on to a table and three staff “peeled him off”. What triggered this event was that the Applicant was not allowed to attend school that day because of a behavioural incident. In response, he sat in the kitchen with another resident and suggested they do a sit-in. The restraint followed.

62Another restraint of the Applicant on December […], 2010 resulted in his being seen at the Hospital. He was not treated for any injuries, but his elbow hurt after the restraint.

63While no exact statistics were provided, the Program Manager testified that almost half of front-line staff have come to [the Facility] from past employment in the fields of police work or correctional facilities work, or are striving to enter into the workforce as police or correctional staff. The ambiance at [the Facility], with its strong emphasis on imposition of rules, strict controls over residents, including an inordinate amount of time spent by themselves in their rooms, alarms and a heavy reliance on physical restraints, reflects a corrections-based approach. The Board is concerned that at least half the front-line staff have no formal training in child and youth work and no previous experience in a treatment setting. This may somewhat limit their understanding of the behaviour of residents and may increase the likelihood that they use restraints more frequently than required.

64The Board finds that the Applicant has been involved in restraints at [the Facility] that should have been avoided based on the purpose of restraints, the policy of de-escalation and the evidence of the Clinician.

Schooling

65Schooling, in a “section” class at [the Facility], has been beneficial to the Applicant. He described school as being one of the better parts of his experience at [the Facility]. He feels he has done well at the [the Facility] school. However, it does not offer an academic program, which is necessary if he is to go to University to become a journalist. He believes that when he lives in the community, he should attend a “section” class, as it is better to help him attain the credits and the grades that he needs to implement his goal of going to University or College.

66The Clinician recommended that when the Applicant leaves [the Facility], it would be advisable to do this in stages. If he leaves the residential program first, he should continue in the [the Facility] school program; alternatively, if he stays in the residential program, he should gradually start going to a community school.

67No evidence was submitted to show that there is a current Identification Placement and Review Committee (“IPRC”) recommendation. The Applicant has an Individual Education Plan. While [the Facility] does ongoing educational testing, the Clinician was unable to rule out the existence of what was described in an early report as complex learning disabilities. Knowledge of learning as opposed to behavioural needs might impact on the Applicant’s future education and placement.

68Denial of school has at times been used as a consequence for unacceptable behaviour. When the Applicant is withdrawn from school, he spends the day in his room. Withholding a youth from attending school, especially if this is a positive and a learning experience, seems a very regressive and counter-productive measure, especially in a setting where schooling is an important component of the program.

69The Applicant’s schooling at [the Facility] is not a concern to the Board. However, using denial of school as a punishment which further isolates the Applicant and leaves him with idle time is a concern.

Community activities

70[The Facility] staff testified that permission to go on outings in the community is earned. However, just because community outings have been earned does not guarantee that they will happen. The staff who take residents into the community have the right to pick and choose which residents they will take into the community and which ones stay behind. The criterion for this selection is whether the particular staff “likes” or “doesn’t like” a certain resident. This practice is accepted by the leadership at [the Facility], the Program Supervisor, on the rationale that it wouldn’t be fair to the staff to be forced to take youth that they don’t like. For many youth who have self-image issues, like the Applicant, receiving the message that he is not liked re-enforces feelings of self-doubt and self-worthlessness.

71The Applicant testified that, because of this practice, he is not included in outings into the community. His testimony was that some residents go into the community on most occasions, whereas others like him, are never taken for community outings.

72There is no current evidence of any acting-out in the community or drug use, behaviours which would make participation in community outings much more unlikely. Yet, he is not involved in community outings.

73The Applicant has been accepted into [Youth Program] very recently, yet there is no evidence that this will happen, unless there are changes to the current practices about community outings.

74The Applicant’s lack of community outings is based on staff “not liking” him, even though he is eligible to go into the community. This practice is not what would be expected in any residential setting. Rather, if community outings are indicated, they should occur, and staff should carry them out in a professional manner, personal preferences aside. The Board is satisfied that this practice has had a negative impact on the Applicant in terms of his self-esteem and his need for socialization.

Family contact

75The Crown wardship order of October […], 2005 stipulated that the Applicant’s mother would have access to the Applicant, as recommended by the Society and any treatment service providers, and subject to specific conditions being met. This does not appear to have happened since the Applicant’s placement at [the Facility].

76Prior to placement at [the Facility], the Applicant often saw his mother on a weekly basis. When he was in [City], he took the train in on his own to see his mother approximately every other week. In the 18 or so months of his placement at [the Facility], he saw his mother once, at Christmas 2011. The Society’s evidence was that the Applicant did not see his family because [the Facility] said it wasn’t clinically indicated. This is what the Society told the Applicant. The clinician at [the Facility], on the other hand, testified that he did not stop contact with the family and did not say contact was clinically contra-indicated. This begs the question as to why there has been no contact for such an extended period of time.

77There was evidence that the Society stopped access at the request of the mother because there were concerns with the Applicant’s visits within the mother’s home. The Society did not offer an alternate type of access arrangement, for example, at [the Facility] or at the Society offices.

78The Applicant’s best interests are not served by the lack of access to the very few people that he identified as caring about him (his mother, sister and [the foster mother]). The lack of clarity between the facility and the Society contributed to this situation. There was no evidence that it was a clinical decision based on the best interests of the Child. The recent visit between the Applicant and his mother at [the Facility] was successful, but there were no further visits scheduled.

Discharge planning

79The Applicant has clearly and repeatedly indicated that he feels ready to move on beyond [the Facility]. It has given him as much as he believes it can give him. In addition, he has indicated that if he is not moved by the Society on a planned basis, and in his best interests, he will on his own accord leave [the Facility] as soon as his probation order ends in May of 2012.

80The previously quoted subsection 61(2)(e) requires the Society to take into account the Applicant’s wishes, which in this case can be reasonably ascertained.

81The January […], 2012 “Plan of Care” document, fifteen pages in length, devotes three lines to the discharge plan. It again focuses on “his longer-term stability” at [the Facility]. “While there are no formal plans at this time for his discharge from [the Facility], he has made it clear that he wants to leave this facility, a matter that is under review”.

82There is a consensus among Society witnesses that if the Applicant continues on the path of improved behaviours for a period of time, they will support a move of the Applicant to a less restrictive environment. The period of time needed varied between witnesses. The Applicant’s worker said six months to a year; her supervisor who does not know the Applicant referred to: “a stabilized period of time and follow through on treatment required”. His clinician would not specify a timeline, but suggested that if the Applicant consistently showed a stable mood and behaviour, there would be a move to more independence. His evidence was that the Applicant’s mood is more stable, with some fluctuations. His use of the medication [ ] is consistent with his improvement. Overall, the Applicant’s impulse control has improved.

83The psychiatrist’s note on the plan of care documents suggests that an immediate transitional move to a less restrictive setting is warranted. In the “Plan of Care” document, under the heading of “Psychiatric Assessment”, it contains this entry: “Dr. [ ] said that [the Applicant’s] functioning has improved over time. He also felt that a ‘transition’ of [the Applicant] to an alternate environment might prove positive for him”. There was no evidence presented that this psychiatric recommendation is under active consideration for implementation. Further, there is no consistency in terms of timing of the Applicant’s potential move.

84The Applicant’s clinician believes that a very likely next placement for the Applicant will be in a Therapeutic Foster Home, with “professional parents” and additional staff support.

85The Clinician’s evidence was that [the Facility] was not saying the Applicant could not leave [the Facility]. He testified that the Society is interested in keeping the Applicant at [the Facility] and has given him the indication he may leave if he does well. He testified that [the Facility] has not heard from the Society what their plan is for a transition to a less intensive setting. He identified for the Board his belief of what results the Society would be looking for and expecting from the placement at [the Facility]: a durable mood stabilization, a diminishment of the socially unacceptable behaviour and increased good behaviour of the Applicant, both in the residence and in the school program, and an over-arching desire to do well in the goals he sets for himself. The Clinician indicated that he sees the Applicant as being at the early stages of a trend to achieving these results.

86The Applicant’s Clinician testified that if moved from [the Facility], the effect on the Applicant’s progress will “depend on where he goes”. He sees the Applicant as wanting help. He could not answer whether he would do better elsewhere, but it would depend on the placement. He acknowledged that the Applicant’s wishes were part of the process in terms of determining what is best for him. Further, it is also important for him to have a sense of progress. The Clinician’s biggest concern for the Applicant if he left [the Facility], would be in terms of schooling that did not have behavioural supports.

87The Board finds that the evidence on the timing of when the Applicant should leave is inconsistent and does not demonstrate commitment to discharge planning. Further, a delay in moving the Applicant is not supported by the position of the psychiatrist or by the importance of the Applicant having a sense of progress and of having his views and wishes heard.

Plans for Applicant’s future

88Regardless of where the Applicant is placed in his next placement after [the Facility], it is essential that he be able to have contact with family. In fact, access to his mother, his sister, and [the foster mother], the one former foster mother with whom he developed a good long-term relationship, will be crucial to the Applicant. They are the only three people in his life with whom he feels a strong emotional bond. Those contacts need to be facilitated and encouraged.

89The Applicant sees that the best placement for him, after he leaves [the Facility], is likely a therapeutic foster home. He would like a foster home where he would work to establish a relationship with the parents, instead of fleeing when difficulties arise, as he has done so often in the past. He seeks a foster home where the foster parent “cares about me”. In a foster home, he would want to spend less time in his room. He seeks an end to interaction with staff whom he sees as negative and angry. He recognizes that a return to the [foster parents] home is highly unlikely; but he still has frequent contact with [the foster mother], and this provides perspective and stability to his life at this time. Paradoxically, the Applicant states that his experience at [the Facility] makes him much more appreciative of the settings he was placed in before; unfortunately, at the time he did not realize that, and he recognizes that he contributed to the breakdown of past placements. With the experience of [the Facility], he states that he will apply himself much more diligently in making his next placement work as a long term one. He explained how he would go about building relationships. He realizes the need to work hard at upgrading his high school coursework since he wants to get into [ ] University to get a degree in journalism.

90The Applicant clearly realizes that he cannot go back at any time and live with his mother. While he wants regular contact with her, and while he sees her as one of only three people that truly care for him, he also realizes that she is caught up in a lot of family issues, and he does not want to get entangled in them again. The Applicant appears to have a very good understanding of the dynamics of his family of origin, and that it would not be in his best interest to be part of that family on a daily basis.

91The Society recognizes it is only a matter of time before the Applicant leaves [the Facility]. Yet there is an absence of concrete planning for this eventual need to move forward to a different placement. The Society did not put forth a comprehensive plan showing the next step in helping the Applicant become more independent in his next placement, and for eventually living on his own in the community. [The Facility] also is not looking at the future beyond [the Facility] for the Applicant.

92The only “Plan of Care” submitted into evidence by the Society was an extensive document completed on January […], 2012 by [the Facility]. The section “Treatment Goals” has a heading of “Outcomes To Be Developed”. The sole outcome sought is listed as follows: “To do well within [the Facility]; to enhance his social skills, sense of self.” After 18 months at [the Facility], the focus is still to have the Applicant adapt to and do well within the [the Facility] environment.

93The Board is concerned that there appears to be too much emphasis, after 18 months of placement, for the Applicant to learn to adapt and “do well” within the closed environment of [the Facility].

94The case management role of the Society appears to be limited to the Children’s Services worker visiting the Applicant on a regular basis, as happens with all youth placed in “outside institutions”. If the Society is actively planning for a placement beyond [the Facility], it was not made apparent to this Board. The Society receives reports from [the Facility], and that appears the basis of and sole source of information in the Society’s planning activities. Given that [the Facility] is still at the stage of working on the goal of having the Applicant “do well within [the Facility]”, it does not appear that there is a Society plan for the Applicant’s future in the community.

95It is in the Applicant’s best interests that he not be left in limbo. A proactive approach to his future is important to recognize his goals, his transitional age, his views and wishes, combined with his need to feel progress, the importance of socialization (rather than institutionalization) and the significance of his family to him.

Less Restrictive Placement

96The Board is satisfied that the Applicant should be in a less restrictive placement, as it is in his best interests.

97When placing the Applicant at [the Facility], the Society looked at secure treatment options. The Applicant does not meet the criteria for secure treatment. He is not a danger to himself or to others. His behaviour is oppositional. It was more so when he was placed at [the Facility] in July of 2010. The solution was to place him in a facility which is as close to a locked setting as one could get and to keep him out of the community. This appears to be a behaviour management strategy for a youth who was not sleeping and was not going to school and who defied house rules. The Applicant’s sleep patterns are now controlled through medication, which he has now demonstrated that he sees the value in taking. There is no evidence of any acting out in the community since his charges. The Clinician’s evidence was that the Applicant is not a physically or overtly aggressive person. Although he can be passive aggressive, there have been no violent episodes.

98The Applicant’s alleged inappropriate treatment of animals was in his past. He has recently worked directly with animals and has done well in those programs. The Applicant’s time at the [Agency] (through probation) and in the [animal] program at [the Facility], were positive.

99The Applicant has not had the opportunity to be in the community on outings, even though he has “earned it”. There is no evidence that his community involvement in sports in other placements was other than positive. According to his Probation Officer, there were no issues with substance use at the time he was sentenced. The Applicant testified that he is no longer involved with drugs and there was no evidence to suggest otherwise.

100The level of restrictions (including within [the Facility] and in the community) placed on the Applicant, is no longer necessary or in his best interests, given his age, his improved impulse control and his realistic educational goals. He needs to be socialized and to learn to cope in society and not in an institutionalized environment. The Society and the Applicant understand that he is of a transitional age and will at some point be in independent living. In the absence of safety concerns, the preparation for that certainty must start now. The Applicant has benefited from the structure of [the Facility]; however, an alternative placement can offer structure and consistency with fewer restrictions.

101The Board has three remedial options: to discharge the Applicant from his placement, to name an alternate available placement or to confirm the placement. Given the Applicant’s progress, the often punitive restrictiveness of his current placement and continued risk of inappropriate use of restraints, the Board cannot confirm the placement. On the other hand, the Board was unable to name a specific, available placement. The Society’s process for finding new placements is to go to the resource department. The Society did not call a witness currently working in the resource department and could offer no concrete alternative placements to [the Facility]. There was evidence that there are group homes and therapeutic foster homes in the area. There was some suggestion that the [foster parents] might be considered as a placement. However, without evidence from them about what supports they would need and given that they have several younger children in their care, this was not considered an available option by the Board.

102The Board is satisfied that for the above reasons, since a less restrictive placement is appropriate, the Applicant must be discharged from his placement at [the Facility]. It is then incumbent on the Society to find an alternative.

103The Applicant is entitled to receive a plan of care that is suited to his particular needs. It is very likely that a program will need to be “built” to provide the best program for the Applicant at this stage of his progression towards eventual independence.

104In terms of future placement, the Clinician’s evidence was that there should be staff helpers, individuals with behavioural techniques, psychiatric involvement for medication and graduated exposure to the community. According to the Clinician, individual therapy was not “deeply needed, only somewhat needed.” The Applicant is open to counselling and wants to benefit from it. What the Clinician describes is the type of supports that can be built into a placement that is less restrictive than [the Facility].

105Any setting must be with therapeutically trained parents and/or staff who are familiar with the fight and flight behaviours associated with attachment responses. The Applicant will test boundaries and he will require supports to control his impulses and to deal with change. The Society will need to work with a psychiatrist to monitor the medication which is working well at this time. Unsupported, any placement has a possibility of breakdown. The Applicant has indicated that he would rather not be in a group home. Some of the financial resources currently available to pay for the placement at [the Facility] could be made available to fund the extra supports needed by the Applicant in his next placement.

106The next placement will also need to be within reasonable proximity of an academic program with resource supports where the Applicant can focus on finishing his high school credits at a level sufficient to gain him entry into [ ] School of Journalism, or a similar program. The Society worker believed that the Society could purchase the [the Facility] school program. This would be a consideration for the remainder of this school year to ease in the placement change; however, the program does not offer academic level courses. This option would depend on agreement between the Applicant, the Society and [the Facility].

CONCLUSION

107The Board finds that continued placement at [the Facility] is not in the Applicant’s continuing best interests. The Applicant testified that he has received some benefit from [the Facility], but that it cannot provide for what he needs going forward. The care and treatment that he requires to meet his needs is best obtained in a setting which does not compromise his emotional and physical integrity, the progress he has made and his current level of mental and emotional development. He clearly expresses his need to get away from many of the arbitrary and punitive measures he is subjected to at [the Facility], such as the excessive time he is forced to spend in his room, restraints, his arbitrary and targeted exclusion from community activities and his isolation from family. His views and wishes are an important consideration, but more so when looked at in the context of the restrictive environment, his stabilization and his progress.

108A less restrictive placement is required for the Applicant. He is not physically aggressive, he is on a stable medication regimen, and is motivated to do well. He has clear career goals, but needs help to achieve these goals. A supportive and accepting placement, without the constant threat of restraints, will help him to continue to make progress to overcome past behavioural problems. Continuity of care is not a driving factor for the Applicant in terms of [the Facility] because it was not meant to be a permanent placement. It is hoped that the next placement will be the one that will help give the Applicant a strong base from which to move to independence.

109The Board recommends that a suitable placement be “enhanced” around the Applicant’s particular needs. The extra resources that are needed to tailor the program to the Applicant’s needs are available from the funds that would have been paid to [the Facility]. As well, placement near a school with a “section” or resource classroom should be considered.

110The Board recognizes that it will take a brief period where all parties will need to be patient while this placement and enhancement process occurs. While this period will present some stresses to the Applicant, he needs to see this brief period as an opportunity to move to and thrive in the environment he described in his testimony to the Board.

ORDERS

111The Board orders that the Applicant be discharged from the residential placement at [the Facility].

112This hearing was conducted in private and was not open to the public. Parties and their representatives and witnesses must not use, share or disclose any documents or information provided or used in this application with anyone, including the media or through the internet.

113The Society may use this decision internally within the Society for the purposes of implementing this decision and in discussions with the Applicant in planning for his care. The Society may use the information obtained at the hearing for the purpose of following up concerns raised by the Applicant, with [the Facility] and, with the consent of the Applicant, to be obtained through his counsel, with any other relevant agency. The Applicant may discuss this review process and decision with a therapist if the Applicant chooses to do so.

Sheena Scott

Presiding Member

Nycole Roy

Panel Member

John F. Spekkens

Panel Member