CHILD AND FAMILY SERVICES REVIEW BOARD

Applicant

v.

Society

REASONS FOR DECISION

Date: August 6, 2013

Citation: 2013 CFSRB 38

Indexed as: Applicant v. Society (CFSA s.61)

INTRODUCTION

1This is an application by the foster mother (the “Applicant”) under section 61(7.1) of the Child and Family Services Act, R.S.O. 1990 c. C.11, as amended (the “Act”) for a review of the April 26, 2012 removal of two girls and two boys (the “Children”) from the Applicant’s foster home by [ ](the “Society”).

2The Society removed the Children because they substantiated that one of the children (K) sustained abusive sexual activity by the foster father and all children were at risk of emotional harm and/or had sustained emotional harm while in the care of the foster mother.

3The Applicant is seeking an order rescinding the decision of the Society. She believes it is in the best interests of the Children to be returned to her care because the Children had been in her care continuously since 2002 (the girls) and 2004 (the boys). The foster mother and her husband, the foster father, had hoped to eventually adopt all four children.

4The Children’s position is that they do not wish to return to the Applicant’s home. The Children were represented by counsel from the Office of the Children’s Lawyer (“OCL”). The OCL did not support their return because of the nature of the sexual abuse and the emotional harm which the Children confirmed to the OCL.

5The hearing was lengthy and took place between June 2012 and January 2013. On January 23, 2013, the Board released its decision. The Board confirmed the Society’s decision to remove the Children. The Board has determined that it is not in the best interests of the Children to be returned to the care of the Applicant. These are the reasons for the Board’s decision.

BACKGROUND

6The two boys are biological brothers. The oldest boy (E) is 15 and the youngest (B) is 11 years of age. They became Crown Wards in November 2005 and were placed in the Applicant’s foster care in July, 2004 while in temporary care and custody. Both boys had had complex needs at the time of apprehension. The two girls are biological sisters. The oldest (K) is 16 and the youngest (J) is 15 years of age. They became Crown Wards in January 2004 and were placed in the Applicant’s foster home in December 2002 while in the Society’s temporary care and custody. The Applicant and her husband have been married for 35 years and have been fostering for 15 years.

7On April [ ], 2012, K disclosed to her biological sister and then to the Applicant that she had been sexually touched by the foster father. The Applicant confronted the foster father and asked him to leave the home. The foster father at the insistence of the Applicant had presented himself at the local police detachment and self reported that he had sexually assaulted his foster daughter (K). He was arrested and charged with one count of sexual interference. He had conditions of release which included: no contact or communication with the two foster daughters, the Applicant and the oldest foster son. He also had a condition of no unsupervised contact with children under the age of sixteen which precludes his being alone with the younger foster son. The Applicant brought all four children to the police detachment the morning of April 18th to give statements.

8On April [ ], 2012, there was conflict between the Applicant and K in the foster home. The Applicant requested a respite placement for K. The Society, after attempting to de-escalate the situation, placed K temporarily in respite care that evening at the insistence of the Applicant. On April [ ], the Society removed all the children from the home due to the high care-giver child conflict, the verified sexual abuse by the foster father and the risk of emotional harm to all children.

9On May [ ], 2012, the Society met with the Applicant in her home and delivered letters of verification of the findings of their investigation which had led to the removal of the children from her home and indicated to the Applicant that they were closing her home as a foster home.

10On May [ ], 2012, the Ontario Court of Justice removed the restriction on the Applicant’s husband that prohibited him from residing in the home of the Applicant. He returned to the home that day. Restrictions remained, however, with regard to communication and contact with the foster children. At the time of the Board’s hearing, the criminal proceedings against the foster father had not concluded.

11Subsequent to the removal of all children from the foster home, there were disclosures by all four children of alleged historical incidents in which the foster father used physical force including one occasion which resulted in injury. There were also allegations made by two of the children that that they were afraid of the foster father particularly after he had been drinking. Verification of these allegations was made through investigation by the Society and a letter of verification was provided to the Applicant on June 6, 2012.

12There has been no communication with or access to the children by the Applicant since their removal from her home on April 26, 2012.

Preliminary Matters

13The Society challenged the Board’s jurisdiction, submitting that the Board had no authority over an actual removal for risk, but only over proposed removals under s. 61 of the Act. The Applicant and the OCL submitted that the Board had jurisdiction as the legislation did not explicitly remove the Board’s authority where a child has been removed for risk. The Board found that it had jurisdiction and proceeded to hear the merits of the application. The Board has exercised its jurisdiction in the past in cases involving removals for risk as opposed to proposed removals. Reference may be made to the following decisions: (Applicants v. Durham Children’s Aid Society (CFSA s.61), 2013 CFSRB 12; L.D. v. Dilico Anishinabek Family Care (CFSA s.61), 2009 CFSRB 75.

14Further, the question of risk of harm to a child is a relevant best interest factor which the Board has also dealt with in previous cases under section 61 in making its determination of what action is in the best interests of the child (Applicants v. Durham, supra; L.D. v. Dilico, supra). The fact that risk of harm is involved does not deprive the Board of jurisdiction.

15On June 20, 2012, the Society brought a motion, asking the Board to dismiss the application for mootness. As noted above, the foster father was charged criminally and had a no contact order with three of the four children and under the order, could not be left alone with children under the age of 16. The anticipated trial date was September, 2012. At the time of the motion, the foster father had returned to the foster home and the Applicant’s stated plan was to have the foster father remain in her home, with the children. The Society’s position was that the application was moot because the Board could not order the children back into the Applicant’s care because of the no contact order, since she intended to continue to have the foster father live with her.

[16] Relying on its reasoning in: Applicants v. Jewish Family and Child Services of Toronto (CFSA s.61), 2011 CFSRB 16 the Board found that the application was not moot because the no contact order was interim (until trial) and was not a final order.

17The Board also heard a motion from the Attorney General, seeking to quash the summons of the police officer which required the officer to bring video statements from the children, the Applicant and the foster father which were part of the Crown Brief. The Attorney General’s position was that allowing the Applicant access to the various video statements could taint her evidence in the criminal proceeding either through the potential for her to tailor her evidence or because it couldn’t be known whether her recollection would be tainted by what she had heard in the Board’s proceedings. The Board did not quash the summons but provided direction to the parties on which statements would be admitted and on what conditions.

ANALYSIS

18The Board has determined that the action that is in the best interests of the Children is to confirm the Society’s decision to remove the Children.

19In reaching its decision, the Board considered the following overarching principles contained in sections 1, 2, and 3 of the Act:

1(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.

Other purposes

(2)The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

3. To recognize that children’s services should be provided in a manner that,

i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment,

ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,

iv. includes the participation of a child, his or her parents and relatives and the members of the child’s extended family and community, where appropriate.

20In accordance with section 61(8.6) of the Act, the Board must decide what action is in the best interests of the Children. The Board considered the following factors in section 37(3) to be relevant to its determination of best interests:

1. The Child’s physical, mental and emotional needs and the appropriate care or treatment to meet these needs.

2. The Child’s physical, mental and emotional level of development.

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

4. The Child’s relationships and emotional ties to a parent, sibling, relative, other member of the Child’s extended family or member of the Child’s community.

5. The importance of continuity in the Child’s care and the possible effect on the Child of disruption of that continuity.

6. The Child’s views and wishes, if they can be reasonably ascertained.

7. Any other relevant circumstance.

21The main issue for the Board in this case is whether the Applicant met and can meet the emotional and physical needs of the Children. This includes an analysis of whether there was a risk of physical and/or emotional harm should the children be returned. The Board looked at the question of potential risk to the Children as part of and in the context of the best interest considerations. The Board also had to weigh the Children’s needs, wishes, place in a family and the importance of continuity of care balanced with the question of risk. The Board finds that the Society has established that the Applicant, through her actions and omissions, was emotionally harmful to the children and that there is a risk, on the balance of probabilities, that she would be so in future. The risk of physical and sexual harm if the Applicant continues to reside with the foster father is also a factor to consider that impacts on both the physical and emotional safety of the Children. Therefore, the Children’s needs cannot be met by the Applicant.

22There are a number of factors that the Board found relevant in making its decision which include: the incident of sexual interference with the foster daughter by the foster father; the Applicant’s intent with regard to the return of the foster father to the family home; the reasons for the removal of the Children from the foster home by the Society; and the Children’s views and wishes.

The Incident

23The testimony of all parties at the time of disclosure about the incident of sexual assault by the foster father of K was consistent. The foster father went to the police detachment on his own volition on the night of April [ ], 2012 and gave his statement. The police constable who took the statement from the foster father testified that he stated that he had inappropriately touched his foster daughter, he understood that what he did was wrong and he understood the consequences of his actions. The constable further testified that once the foster father stated that he had touched his foster daughter’s breasts, she arrested him.

24The police constable also testified about the statement provided to her on the night of April [ ], 2012 by the foster daughter, K. She testified that K stated that she was to go to karate with her siblings but stayed home instead due to an altercation between her and her sister. She was alone in the house with the foster father. She was on a reclining chair and was wearing her karate outfit. The foster father was standing behind the chair and was brushing her hair to relieve the stress from the altercation. At some point he stopped brushing her hair, and started rubbing down her arms, then he touched both her breasts with his hands over her clothes. He stated to her that he was falling in love with her. K. was shocked and froze and he said “is this too far for the first time?” She said that he had never done anything like this before. He “looked serious” and that frightened her. He said to her that it was best not to tell mom or anyone else. He then went to the kitchen and acted as if it had never happened. K was consistent in her description of the incident to her sister, her foster mother, the police officer and the Society’s child protection worker.

25The police constable also testified that she had interviewed the Applicant and taped it on video. The Board viewed the video of the Applicant’s testimony. The Applicant reported that K had disclosed the incident to her foster daughter (J) and J had encouraged K to tell the Applicant. K described the incident to the Applicant. The Applicant said to the police constable that her husband was in “jeopardy of losing us, losing everything”. She asked how “the 2 girls could ever trust given their history and now this incident”. She stated that she had told K that she had done the right thing in telling her. The Applicant stated in the interview that “thank God that kid told me. This may not be the end of it, people don’t stop”. She also stated that K begged her not to say anything to the foster father. The Applicant confronted her husband privately and he admitted to touching K. The Applicant told her husband to pack his bags and leave. The husband then phoned their adult biological daughter and arranged to stay at her house. Their daughter told the Applicant that her father had admitted that he had touched K’s breasts and that he was sorry. Their adult biological son came over at that time and he called the police detachment to report the incident and get direction on the steps to take. The foster girls went to the police detachment that evening with the Applicant and the Applicant returned with the other Children to give their statements the following morning.

26From the accounts of the police officer and the Society, the Applicant acted appropriately and with sincerity at the time of disclosure and reporting the incident to the police. She immediately believed K, responded appropriately to her at the time of disclosure, without delay confronted her husband and demanded that he leave the home. This insured the protection of the children. She then proceeded to report the incident to the police with the support of her adult children.

27On a balance of probabilities, given the testimony of the police constable, the Applicant, the adult son, the voluntary admission by the foster father and the recorded testimony of the other children, the Board concludes that the incident did occur as described. Furthermore, because of the area that he touched, the nature of the statements made by the foster father to K which include: “falling in love”; “going too far for the first time” and keeping the secret; the foster father’s own admission to wrongdoing, the Board concludes that the incident was sexual in nature. The Board also concludes that this incident represents a violation of the foster child’s sense of security and wellbeing and supports the Society’s view that it constitutes sexual harm that was intentional.

The Return of the Foster Father to the Family Home

28From the outset of the hearing, the Applicant testified that she wanted the Children returned and her husband to reside in the house as well. Initially, she stated that her husband had not been convicted and that he should be able to return to the home when the Children are not there due to the no contact condition. His business and livelihood were located in the home. She testified that she was having difficulty not having contact with her husband and that it was a challenge to do everything including parenting without him. She indicated that she intended to repair the relationship with her husband.

29The Child Protection Worker and the Children’s Service Worker testified on separate occasions that the Children had indicated to them prior to their removal that the Applicant was under stress and leaned on the foster father for support and he wasn’t there. The workers testified that the Children felt a sense of responsibility to compensate for his absence. These workers also testified that the Children were aware that the Applicant wanted the foster father to return.

30The Workers each testified that the Children spoke of a discussion that took place in the home a few days after the disclosure about the collective desire to have the foster father return. This put considerable pressure on K who felt anxious, unsafe and unprotected at the thought of the foster father’s return. She indicated to the Workers, however, that she was conflicted in her response at the time of this discussion because she didn’t want to be ostracized by her siblings.

31The therapist for the family indicated in her testimony that the return of the foster father to the home without adequate preparation and intervention would lead to a sense of betrayal on the part of all the Children and they may perceive that the Applicant chose the foster father over them. Their trust and sense of security would be violated.

32It was apparent through the testimony of the Applicant and the Society staff that the relationship between the Applicant and K became stressed at the time that she began to question K on the validity of her allegation. The Workers testified that K told each of them on two separate occasions that the Applicant asked her directly if she had misunderstood the whole incident. K wondered if the Applicant believed her.

33The Applicant testified that she had asked K this question after having a similar conversation with J about K’s truthfulness. The Workers indicated that K was upset that she questioned her recall. Furthermore, she felt guilty and concerned that her siblings would also blame her for the disruption in the family following her disclosure. The Children’s Service Worker also indicated that the Applicant had threatened K with regard to an upcoming conversation with another Child Protection Worker who was investigating the allegation. K indicated to her that the Applicant had told her that she had better “think about what she was going to say”. The investigating Child Protection Worker testified that at the verification meeting with the Applicant that she had asked the worker if “she believed everything that K says”.

34In her testimony, the Applicant stated that she found the information shocking at the time of disclosure. She indicated that she didn’t believe that K thought that it would go this far and sometimes K should not be believed. Furthermore, she testified that she believed that there was nothing sexual about the touch. She also testified that she didn’t believe that the foster father had stated that he was falling in love with K; nor did he ask if he had gone too far. Moreover, she testified that it was “not inappropriate touching”. “He touched her while brushing her hair and he brushed dandruff off of her”. In addition, she indicated during her testimony that “he touched her over her clothes” and this was a minimal thing that was blown out of proportion”; “K and her husband were the only two there and everything else is hearsay”. She testified also that she regretted calling the police. These statements are a clear indication that she did not believe K. and she minimized the impact of the foster father’s behaviour on the Children. Indeed, she testified that she didn’t believe that the Children were harmed in any way.

35The Child Protection Worker, the Children’s Service Worker and the expert witness testified that this, coupled with the knowledge of the Applicant’s desire to have her husband return to the home led to a sense of betrayal and a lack of a sense of physical and emotional safety for K. The expert witness testified that this would be generalized to all children in the home i.e. if the Applicant doesn’t believe K then perhaps she won’t believe me when I have something important to say. The children would experience a lack of emotional and physical safety.

36The Applicant testified about the nature of her familial relationships, her lifestyle and her expectations of herself and others. Family with wholesome values was foundational to her worldview. She spoke of her marriage as a harmonious partnership in which longstanding agreements between them underpinned their communication and problem solving. She testified that as foster parents, they made no distinction between their biological children and their foster children. Indeed she indicated the importance of having trusting, meaningful relationships with the traumatized children whom they fostered.

37The Applicant and her husband appeared absolutely dedicated to the healing and wellbeing of the children in their care. They resided in a country environment surrounded by pets, healthy produce, daily routines, frequent family celebrations and a network of extended family and community. The Board understands that the allegation and verification of the abusive incident between her husband and her foster daughter shattered the Applicant’s cherished worldview. Through her testimony, it was clear that her identity, sense of self worth, and her vocation were dependent on this worldview. The Board acknowledges that in order to reconcile the weight of the disclosure with her loyalty to her husband, the Applicant minimized and denied its significance or impact on her foster children. She testified that it was just another “bump in the road” and not that different from the other challenges they had faced in the past. The Applicant rationalized the significance of the incident from being sexual touching to “brushing dandruff off of K”; a misunderstanding; a non truth; not inappropriate. This reconstruction of the evidence by the Applicant allowed for her to justify the return of her husband to the family home. The Children were removed from the home on April 26, 2012 and subsequently, the foster father returned to the family home on May 29, 2012.

38The Director of Services testified that the minimization of the impact of the incident, the lack of belief of K and the intent to have the foster father return to the home were significant factors in the decision to remove the Children. The expert witness, the Family Physician and the family’s therapist each testified that these factors were risk factors for emotional and physical harm to K and her siblings. The Board finds this evidence compelling and it was not challenged in any meaningful way by the Applicant.

Reasons for Removal of the Children from the Family Home

39The Society identified a number of concerns for the removal in addition to the sexual touching. These included the incident between K and the Applicant that led to the removal of K from the home for respite, the concern that K would be targeted and potentially scapegoated/ shunned by her siblings due to the response of the Applicant to the allegations. Since the Board is relying on the risks associated with the sexual touching and the Applicant’s firm position that the foster father will remain in the home, combined with the views and wishes of the children, in making its decision, the Board will not address the other concerns in any detail, except to the extent they inform the sexual touching risk and the children’s views and wishes.

Views and Wishes of the Children

40The boys and girls were separately represented by counsel from the OCL. Both counsel submitted that since the removal of the Children from the foster home and the return of the foster father to the home, the points of view of the Children have changed. Furthermore, the opportunity or ability for the Children to return to the foster home is constrained by the fact that the foster home was closed by the Society and there are conditions placed on the foster father in terms of his contact with the Children. Three of the four Children are adolescents and are able to freely express their wishes and make decisions for themselves.

41The boys’ counsel stated that for months E has been consistent and clear in his wishes. He does not want to return to the foster home whether the foster father is residing there or not. Counsel submitted that E has no trust in the foster father because of what he has done and is adamant that he remains with his brother B.

42Counsel advised that B was initially ambivalent about his wish to return to the foster home. At first he expressed a desire to be with the Applicant but did not understand that this was not possible if the foster father resided in the home of the Applicant. Recently, B has indicated that he does not wish to return to the foster home under any circumstance. B is also resolved in his wish to remain with his brother.

43The three older Children, according to their counsel, all believe that the incident occurred and it has shattered their sense of trust in either foster parent. They all disclosed historical incidents of excessive use of physical force by the foster father that they experienced or witnessed. This further eroded their sense of loyalty or belonging with the foster home.

44The girls’ counsel submitted that both girls wanted nothing to do with the foster father and would never live in a household with him. Both girls have had a close but conflicted relationship with the Applicant. Their ambivalence towards her is related to their inability to comprehend why she chose the foster father over them. They both are experiencing a tremendous sense of loss and the sadness related to the situation; that loss has turned to anger. Neither girl wishes to see the Applicant or return to the foster home.

45In summary, all the Children expressed that they do not wish to return to the foster home. They offered their opinion after a period of stability in new foster environments. The initial and primary conclusion of all the Children was that they did not want to return to the foster home if the foster father was there. Subsequently, they experienced a sense of betrayal by the Applicant for allowing the foster father to unconditionally return to the home and this lack of trust led to their desire not to return to the foster home under any circumstances. The expressed wishes and views of the Children weighed heavily in the Board’s decision.

46The Board’s remedial authority is clear under s. 61 (8.6) of the Act:

The Board shall, in accordance with its determination of what action is in the best interests of the child, confirm the proposal to remove the child or direct the society not to carry out the proposed removal

47In cases where the children have already been removed for risk, as here, the Board’s remedial authority is to confirm or rescind the decision to remove the children, as opposed to the proposal to remove.

48The Board has determined that the action that is in the best interests of the Children is that they not return to the foster care of the Applicant. The Board wishes to acknowledge the long standing, meaningful relationship the Applicant had with the Children and its impact on their development. The minimization of the incident, the lack of acknowledgement of the potential emotional harm that this trauma and disruption can have on the Children and the intent to have the foster father remain in the home places the Children at risk of emotional and physical harm.

DECISION

49The Board confirms the Society’s decision to remove the Children from the foster care of the Applicant.

CONFIDENTIALITY ORDER

50Parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings.