V.L. v. Youthdale Treatment Centres, 2013 CFSRB 14

CHILD AND FAMILY SERVICES REVIEW BOARD

V.L.

v.

Youthdale Treatment Centres

REASONS FOR DECISION

Date: March 13, 2013

Citation: 2013 CFSRB 14

Indexed as: V.L. v. Youthdale Treatment Centres (CFSA s.124)

INTRODUCTION

1This is an application by V.L. (the “Child”) who is now 13 years old asking the Board to review the decision made by Youthdale Treatment Center (”Youthdale”) to admit her in its Secure Treatment Program. The Child was admitted to Youthdale on January [ ], 2013 the day before her thirteenth birthday. The Durham Children’s Aid Society (“Society”) sought the Child’s admission to Youthdale because of her escalating violence, self-harm, drug use and unsafe sexual behaviour. The Board heard the application on February 5, 2013.

2The Board must decide, on a balance of probabilities, whether each of the criteria set out in subsection 124(2) of the Child and Family Services Act, R.S.O. 1990 c.C.11, as amended(the “Act”) were met at the time of admission. Youthdale’s position is that all five criteria had been met and that the application should therefore be denied. The Child’s position is that criteria (a), (b), and (e) had not been met and that she should be released.

3For the reasons that follow, the Board found that the Child does meet all of the five criteria for admission and dismisses the Child’s application.

PRELIMINARY ISSUES

4Counsel for the Child objected to the admission into evidence of the Statement of Reasonable Grounds, also known as Form 14, the Emergency Admission to Secure treatment Program, a one page administrative document and the Admission Summary. All those three documents were signed by the admitting psychiatrist of Youthdale. Given the Child’s liberty interests were at stake Counsel argued the Child had the right to test all the evidence through cross-examination. Counsel relied on M.N. v. Youthdale Treatment Centres (CFSA s.124), 2011 CFSRB 11 and K.L. v. Youthdale Treatment Centres (CFSA s.124), 2011 CFSRB 32.

5Counsel for Youthdale advised she did not intend to call any psychiatrist to testify to the disputed documents. She asked the Board to treat the documents as business records or, alternatively, to admit the documents and decide what weight to be given to them.

6In the circumstances the Board refused to admit the three documents. There is nothing to distinguish this case from the circumstances in issue in S.I. v. Youthdale Treatment Centres (CFSA s.124), 2010 CFSRB 30 at paras. 13, 26 and 29, and the Board adopts and applies those reasons. Specifically, in S.I. the Board found:

As a preface to both evidentiary rulings, the Board reiterates that the onus in establishing that the five criteria are met rests with Youthdale. The onus is on the balance of probabilities. There is nothing in the CFSA which permits the Board to make a determination on a summary evidentiary basis. This means that it is Youthdale’s responsibility to ensure that important witnesses who have evidence about the criteria are available. This is particularly the case regarding clinical witnesses who make the assessment about the existence of the criteria as a pre-requisite to admission and who can assist the Board in making a determination in the best interests of the child. (...)

With respect to the documents at issue, the Form 14 and the Admission Summary, the Board finds that the documents are not business records. Section 35 (1) of the Evidence Act (Ontario) defines a business record as any writing or record made of any act, transaction, occurrence or event if made in the usual and ordinary course of any business, provided it was usual to make such a record. A psychiatrist’s opinions about why a child should be held in a locked facility and the factual basis for those opinions are not a record of an act, occurrence or event. (...)

The Board is satisfied that where the physical liberty of a child is at stake, that child should be accorded a high level of procedural fairness and due process. The principles of fundamental justice which include procedural fairness and the duty of procedural fairness standing alone would dictate that the Child should be given the option of testing the evidence of the person responsible for depriving her of her liberty. (...)

FACTS

7The Board heard the testimony of the Child and Youth Worker of the group home F., the Child Worker from the Society and the Psychiatric Crisis Worker from Youthdale. The Child did not testify.

8The Child was born on [ ]. Her mother was pregnant at a very young age, used drugs during pregnancy and has a serious mental health diagnosis. The Child was removed from her care in 2000 and placed with her grandmother who was granted custody in 2002. The grandmother cared for the Child until one year ago when she returned to live with her mother. The Child’s father has an extensive criminal history and a history of mental illness.

9The Child was admitted to hospital on November [ ], 2012 following a serious suicide attempts when she tried to hang herself. Her brother rescued her. She was involuntarily admitted (“formed”) on November [ ] and discharged on December [ ], 2012.

10The Child came into the care of the Society on November [ ], 2012 when she was left alone at the hospital as her mother, who appeared to be under the influence of drugs, had to be escorted outside the hospital premises.

11In the hospital discharge summary the Child acknowledged extensive use of drugs, including cocaine, provided by a group of older peers and “that she had engaged in unprotected sex and promiscuity which is suspected to be in change (sic) of her use of substances”. The discharge summary refers to a “total indifference about her safety and the risk taking behaviour”. Blood tests confirmed drug use. The Child at the time of the hospitalization was only 12 years old.

12After her discharge from the hospital she was placed in the group home W. She was transferred to the group home F. on December [ ], 2012 and to the group home T. on January [ ], 2013. She was finally admitted to Youthdale on January [ ], 2013.

13During the period between December [ ], 2012 and January [ ], 2013, the Child ran away from the group homes on 10 occasions. On one such occasion, on January [ ], 2013 she left the group home in the evening and came back 2 days later with bruises around her neck which looked like hand marks. She disclosed that a male in the community put her against a wall and attempted to strangle her. She said she was unconscious for 10 minutes. She also disclosed unsafe sex during her absence. She ran away for a few hours on January [ ], [ ] and [ ], 2013. Upon her return on January [ ], she was angry and tossed a chair breaking ceramic tiles.

14On January [ ], 2013 she was absent without leave from 7pm to 2:50 am. She was downtown in an unsafe area. On January [ ], 2013 she ran away from 10:40 pm to the next day at 11:30 pm. She openly told her mother and sister of her sexual exploits with men and women in the community, which led to police involvement. She also disclosed that she had taken drugs over the weekend of January [ ], 2013 and that she distributed some of the drugs to other youth at the residence.

15During her stay in the group homes, the Child has self-inflicted cuts on numerous occasions and attempted suicide once. During her stay at the group home W. on December [ ], 2012 she broke a bottle of beer and used it to cut her wrist. Around that date, she sat on the ledge of a window, and attempted to jump. The staff had to restrain her and one of them was injured. She was taken to the hospital, and discharged to the group home.

16On December [ ], 2012 she gave herself some superficial cuts with a butter knife that did not require medical treatment. On January [ ], 2013 after getting upset by the relationship between 2 peers, she used a razor blade to cut her forearm. She did not need stitches. There were approximately 40 superficial cuts on a space of 6 by 8 inches that could be observed. She did give back the blade to the worker when asked to do so but started to play with her blood and to show her arm to a peer. On January [ ], 2013, after being upset with a peer, she went in the backyard, broke a bottle and threatened to swallow pieces of glass. The group home called the police who took her to the hospital where she was not admitted.

17The Child has also erupted in violent behaviour, sometimes in an unpredictable way. During the meeting prior to her transfer to the group home F. on December [ ], 2012, she stormed out of the premises and stayed outside in a very cold weather only wearing her sweater. She kicked and broke a lamp post. According to the witness she almost walked in front of a truck but did not need to be physically restrained in order for her to stop. The reaction was triggered by a discussion on the frequency of her contact with her father. It took her a while to calm down and she finally came back in so she could be driven to the group home.

18The Child engaged in violent behaviour on January [ ], 2013 where she damaged property at the group home by making holes in walls with a broom, one of them being almost 3 feet by 3 feet exposing electric wires. She finally calmed down after a few hours. The facility did not call the police as the witness said she did not need to be restrained.

19On the January [ ], 2013 the first meeting scheduled with a counsellor, she left after 15 minutes saying she was not coming back. She also made threats to harm the counsellor. On the same evening she became upset and started to throw bricks at the garage door, threatening staff and peers. The staff advised her that they would have to call the police but she did it herself and the police came to the group home.

20On January [ ], 2013, she seriously assaulted a peer at the group home. This peer was aged 17 with whom she had sexualized behaviour during her stay. The Child started to tell her how she felt about her, that she loved her and the peer told her that she could not say that back. She became physically violent, punched her, choked her a couple of times, ran after her, kicked her legs and ribs, bashed her head against a brick wall, put her against a railing and tried to choke her again. She was moved the next day to the group home T.

21At her last group home on January [ ], 2013 she experienced another out of control moment where she threatened to break the television and ran away. She started to pull the TV but stopped herself, kicked the coffee table and stated that she needs to be locked up. She made reference to her past suicide attempt and said that she would try again.

22Finally, on the day of her admission to Youthdale, she had a sudden, aggressive outburst and put a hole in a wall and ripped down the blinds in the room where she was with her Child Worker and threatened to run away again. The Child Worker had to leave for her safety.

23The Child Worker and the Child and Youth Worker testified that a lot of the issues causing the Child to react with impulsivity revolve around peers and her perception that they do not like her. The unpredictability of the behaviour is seen as concerning and more than is generally observed in the behaviour of youth in a group home setting.

24The Child Worker requested the admission of the Child to Youthdale on January [ ], 2013. The main concerns were the promiscuity, self harm and drug use. She was concerned that the Child would get hurt during her encounter with older men in unsafe situations.

ANALYSIS

25The Board found that the Child met all five criteria at the time of the admission.

Counsel for the Child contested criteria a, b, and e of section 124 (2) of the Act. Counsel did not dispute Youthdale met criteria c and d. The Board’s analysis will only address the disputed criteria.

26Pursuant section 124 (13) of the Act

The Board shall make an order releasing the child from the secure treatment program unless the Board is satisfied that the child meets the criteria for emergency admission set out in clauses 124 (2) (a) to (e).

27The criteria set out in section 124 (2) are the following:

124(2) The administrator may admit a child to the secure treatment program on an application under subsection (1) for a period not to exceed thirty days where the administrator believes on reasonable grounds that,

(a) the child has a mental disorder;

(b) the child has, as a result of the mental disorder, caused, attempted to cause or by words or conduct made a substantial threat to cause serious bodily harm to himself, herself or another person;

(c) the secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm to himself, herself or another person;

(d) treatment appropriate for the child’s mental disorder is available at the place of secure treatment to which the application relates; and

(e) no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances.

Criterion (a) “the child has a mental disorder”.

28The Board was satisfied that the Child had a mental disorder at the time of her admission. A mental disorder is defined in section 124 (13) of the Act as “a substantial disorder of emotional processes, thought or cognition, which grossly impairs a person’s capacity to make reasoned judgments”.

29As the evidence established, the Child committed one serious suicide attempt that resulted in a hospitalization of 5 days. She also threatened to harm herself by sitting at the ledge of a window while living in one of the group homes. She ran away 10 times from two group homes between December [ ] and the date of her admission to Youthdale on January [ ], 2013. During one of these incidents she was seriously assaulted by an older man, leaving marks around her neck. She found herself in unsafe areas during the night. She engaged in sexual behaviour exposing her again to older men in exchange for substances and other favours, demonstrating a lack of judgement about the type of circumstances could put her at risk.

30The medical discharge in December had noted that she was indifferent to her safety and during her stay in the group homes she demonstrated through her behaviour the same level of indifference, showing no improvement.

31The various violent incidents show a concerning level of escalating impulsivity and unpredictability in her behaviour and is also evidence of a substantial disorder of emotional process. The numerous incidents of self-inflicted cuts are also relevant in the analysis of her mental state as is the serious suicide attempt at the end of November.

32The evidence clearly shows that the Child was experiencing at the time of the admission, dysregulations of emotions and behaviours which greatly affected the Child’s thinking and judgement with serious consequences such as aggression, hopelessness, self destructive thoughts, threat and attempt to harm herself. The impaired emotional and thought process also resulted in very unsafe behaviour such as running, substance use and indiscriminate unprotected sexual involvement at a very early age.

33The inability to think through the consequences of her actions, and the easy triggering of negative behaviors were evidence of a substantial disorder of emotional processes, thought or cognition which grossly impaired the Child’s capacity to make reasoned judgments

34For these reasons, the Board was satisfied that the Child had met the first criteria at the time of her admission.

Criterion (b) the Child has, as a result of the mental disorder, caused, attempted to cause or by words or conduct made a substantial threat to cause serious bodily harm to himself, herself or another person.

35The Board was satisfied that the Child has, as a result of the mental disorder, attempted to cause or by words or conduct made a substantial threat to cause serious bodily harm to herself and attempted to cause serious bodily harm to a peer.

36Serious bodily harm is harm which is “not trifling or superficial” as stated in Children’s Aid Society of the Niagara Region v. H.P., 2003 2076 (ON SC) at para. 36.

37The Child made a serious attempt to hang herself in November 2012. This was clearly an attempt at serious bodily harm. In terms of threats, the Child threatened to jump from the ledge of a window. She also threatened to walk in front of a truck. On another occasion she threatened to swallow pieces of glass. If she had fallen from the ledge of the window, been hit by the truck or swallowed glass, she could have been seriously injured or worse and would have caused more than trifling or superficial harm to herself. The threats were substantial because there was a real possibility, based on her previous attempts, impulsivity and inability to control her behaviours that she might have gone through with her threats.

38With respect to other persons, the evidence established that the Child in one incident made an attempt to cause serious bodily harm to a peer at the group home. She seriously assaulted the other peer, bashing her head against the wall. This could have resulted in more than trifling or superficial injuries to the peer, given the intensity of the assault.

39These threats and the attempts were as a result of the Child’s mental disorder and in particular her inability to control her impulsivity when she became upset.

40Based on the above evidence, the Board was satisfied that criterion (b) was met.

Criterion (e) no less restrictive method of providing treatment appropriate for the Child’s mental disorder is appropriate in the circumstances.

41The Board was satisfied that no less restrictive method of providing treatment appropriate for the Child’s mental disorder is appropriate in the circumstances.

42Counsel for the Child argued that she did not receive the counselling she needed and without knowing whether the support of a psychiatrist would have helped, it is impossible to conclude that less restrictive method of treatment would not be appropriate. In the circumstances of this case, regardless of any lack of services leading up to admission, at the time of the admission, the Board is satisfied the Child was not safe in an unlocked setting.

43The Board found that the evidence has established that the placement of the Child in three different group homes was unsuccessful in preventing her from running away and putting herself in unsafe situations. No progress was observed in her behaviour while she resided in these unlocked facilities and the evidence was that she did not engage in treatment when it was offered. The placements allowed for community psychiatric care; however, on her first visit to her counsellor as recommended by [an agency] she left fifteen minutes later and said that she was not going back. In fact she made threats to harm the counsellor.

44The Board is satisfied that given the Child’s propensity to run away and her escalating behaviors, a locked setting was required as she can only receive appropriate treatment if she is contained. The Child will attempt to run from or disrupt a non-secure setting and she will only be able to benefit from treatment in a locked setting.

45Criteria c) and d) were undisputed by the Child. Based on that admission, the Board is satisfied that the Child met criteria c) and d) at the time of the admission.

CONCLUSION

46Pursuant to section 124 (13) of the Act, the Board was satisfied that the criteria in subsections 124 (2) (a) through (e) have been met and therefore dismissed the application of the Child, under section 124(9) of the Act, on February 5, 2013.

CONFIDENTIALITY ORDER

47Parties and their representatives must not use, share or disclose any documents or information provided or used in this application with anyone including the media or on-line. Any documents or information shared by the parties must be used only for the purpose of the hearing of this application by the Board.