A.T. v. Youthdale Treatment Centres, 2014 CFSRB 3

CHILD AND FAMILY SERVICES REVIEW BOARD

A.T.

v.

Youthdale Treatment Centres

REASONS FOR DECISION

Date: January 16, 2014

Citation: 2014 CFSRB 3

Indexed as: A.T. v. Youthdale Treatment Centres (CFSA s.124)

INTRODUCTION

1This is an application by A.T. (the “Child”) who is now 12 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 December 27, 2013. The [local children’s aid society] (“Society”) sought the Child’s admission to Youthdale because they felt she had “suicidal ideation” and self-harming behaviour. The Board heard the application on January 3, 2014.

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.

3The Child’s position is that none of the criteria have been met and that she should be released.

4For the reasons that follow the Board finds that the Child did not meet criterion (a) as set out in s. 124(2) that the Child has a mental disorder. As such, the Board was obliged to release the Child and the Board’s reasons do not address criteria b) through e).

PRELIMINARY ISSUES

5The Office of the Children’s Lawyer (“the OCL”) appeared as Counsel for the Child. The OCL objected to the admission into evidence of medical opinion documents tendered by Youthdale that were not authored by the Psychiatrist presented as witness by Youthdale, [witness Psychiatrist]. These documents were authored by the admitting psychiatrist, [admitting Psychiatrist]

6Further, the witness proposed by Youthdale, [witness Psychiatrist], is the psychiatrist who has seen the Child a number of times since her admission. The OCL’s position was that it would be very difficult for the currently-treating psychiatrist, if she were a witness, to ignore all the information she gained about the Child after the Child was admitted

7Counsel for Youthdale informed the Board that [the admitting Psychiatrist], despite being present in the building during the hearing, was not available to testify, not even on the phone. She asked the Board to admit the documents and decide what weight to be given to them.

8In the circumstances the Board refused to admit the documents.

9There is nothing to distinguish this case from the circumstances in issue in S.I. v. Youthdale Treatment Centres (CFSA s.124), 2010 CFSRB 30, 2010 CFSRB 30 at paras. 13, 26, 29 and 32, 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. (…)

The Board could reach this same conclusion under a Charter analysis or procedural fairness analysis. The Board can exclude the evidence under s. 24 of the Charter or by virtue of its discretion to control its own proceedings and to refuse to admit any evidence that would lead to a denial of procedural fairness. The language in section 15 of the SPPA is permissive: the Board may admit the document. The Board is not compelled by s. 15 of the SPPA to admit the documents; it merely has the discretion to do so. In refusing to do so, the Board is not finding s. 15 of the SPPA unconstitutional. Rather, the Board is applying the law, namely the Charter and the prevailing administrative law principles as established by the courts. (…)

10As that case noted, the best interests of the Child are served by the legislated review process, the application of the Charter and the protection of procedural fairness where liberty is at stake and these considerations guide the Board’s use of discretion to admit hearsay evidence under the SPPA.

BACKGROUND

11The Board heard the testimony of two Psychiatric Crisis Worker from Youthdale (PCW1 and PCW2), the Child Protection Worker from the Society (CPW) and the Child.

12The Child is 12 years old and looks older than her stated age. She has been in the temporary care of the Society since November 22, 2013. Until then, she lived with her parents and her younger brother. The Child disclosed to her school social worker that she had been physically abused by her father for years and that she had witnessed ongoing domestic violence of her father towards her mother as well as her maternal aunt who lived with the family for a period of time. The Child reported having suffered injuries after being beaten by her father with objects such as broken chair legs. She stated that her father regularly punched and hit her in the head hard enough to cause nausea and had once pulled her hair hard enough to cause her scalp to bleed.

13The Child also reported to the school social worker that her mother suffered from anxiety, depression and an eating disorder and that she had been hospitalized in the past for suicide attempts. The Child reported being fearful of her father but also angry at him. She felt protective of but also angry at her mother for failing to protect her and for taking her father’s side during conflicts.

14According to the CPW, following the father’s arrest as a result of the Child’s disclosures, the mother reported to the police that the Child lied about the abuse and that the Child had threatened to stab her with a knife. The mother reported a broken television, broken glass and a slashed couch in the home which the mother indicated was all caused by the Child and she did not want her back in the home.

15The child and her brother were apprehended at school by the [society] on November 22, 2013. The Child was hospitalized at the [hospital] on November 22, 2013 and released on November 27, 2013. The Child was admitted at the Youthdale Secure Treatment Centre on December 27, 2013 and sought to have her Emergency Admission reviewed by the Board on December 31, 2013. The Board heard the Application for Review on January 3, 2014.

ANALYSIS

16The criteria that the Board must apply in secure treatment reviews are set out in the following legislative provision:

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.

17Each of the above criteria must be met at the time of admission to confirm the Child’s placement at Youthdale. In this application, the Board was not satisfied that the Child had a mental disorder and thus the Board released the Child.

Criterion (a) the Child has a mental disorder.

18The Board is not satisfied that at the time of admission, the Child had a mental disorder within the meaning of the Act. A mental disorder is defined as a substantial disorder of emotional processes, thought or cognition, which grossly impairs a person’s capacity to make reasoned judgments.

19The Board finds that there was insufficient evidence before it to conclude that the Child had a mental disorder within the meaning of the Act. Youthdale did not put before the Board the testimony of its admitting psychiatrist and his medical diagnosis that the Child has a mental disorder. Nor was there a medical diagnosis of any kind before the Board that could be evidence that the Child had a mental disorder at the time of admission.

20Further, the behavioural evidence before the Board did not establish the existence of a mental disorder. The Act is specific in defining a mental disorder as a substantial disorder of emotional processes, thought or cognition which grossly impairs a person’s capacity to make reasoned judgements. While the evidence shows that the Child exhibited some behaviours that were indicative of some emotional deregulation following her apprehension, it cannot be qualified as substantial. As well, there is no evidence that the Child’s capacity to make reasoned judgement was grossly impaired at the time of admission.

21The CPW testified that on November 22, 2013, when she called the mother to inform her of the apprehension, the mother reported concerns of self-harm about the child, stating that she had cut herself on her arms once in the last 6 months.

22As a result of this report and of the abuse suffered at the hands of her father, the CPW asked the Crisis Mental Health Worker from the [Agency] team to proceed with a trauma assessment of the Child. The [Agency] worker reported to the CPW that the Child told her she has had suicidal thoughts since grade 2 and she used to hold her breath until she passed out. The [Agency] worker also reported that the Child told her she would kill herself that night if she was taken to a foster home. The CPW also testified that when she told the Child she was concerned about her suicidal statements, the Child told her that anyone in her situation would feel suicidal, that it was normal and she did not understand why she needed to go to the hospital.

23The CPW took the child to the [hospital] where she was hospitalized until her release on November 27, 2013. The CPW testified that during the intake examination at the hospital, she observed scars on the Child’s forearms, about 20 cuts, some very straight some diagonal, all healed. The CPW testified that the Child told the doctor the “cuts” were caused by her cat.

24Upon her release, the Child was placed in the same mixed modality foster home as her brother [foster home A] and remained there until December 6, 2013. On that day, the foster mother fell ill and had to be hospitalized. The Child and her brother were then replaced in two different foster homes as it was felt that they had different needs. The CPW testified that the Child’s brother had adapted very well as the Child has exhibited difficult behaviour such as swearing, defiance and being withdrawn. The Child was placed in a new mixed modality foster home [foster home B] and remained there until her admission to Youthdale on December 27, 2013. As with [foster home A], the Child received the services of a Child and Youth Worker as well as additional supports and the plan was to assess her needs to determine and appropriate placement as mixed modality homes are short term placements, usually for three months.

25There are no specific events that led to the Child’s Emergency placement at Youthdale. The CPW testified she was in contact with the foster mother and the [Agency] worker who continued to see the Child for counselling following her apprehension.

26The CPW testified the foster mother reported the child was withdrawn in the home and did not interact with any of the other foster children who were all older than the child. The foster mother reported the child exhibited very poor hygiene and self-care skills, not showering or changing clothes for days. The foster mother reported to the CPW the child slept in her clothes on top of the blankets and constantly wore a hoodie sweater that she kept pulled over her head at all times, even in the house. The foster mother also reported the Child refused to eat anything else than fast food.

27The CPW also testified the Child did not make eye contact and gave minimal yes/no answers when questioned by the workers or foster mother, but spoke out some more when she had something to ask.

28During that period, the Child attended for access visits with her mother at the Society’s office. The CPW testified she supervised two access visits herself. The CPW testified she observed the Child to be verbally lashing out and swearing at her mother; she appeared angry and told her mother she wanted to leave the visit almost immediately.

29When asked why she had sought to have the Child admitted at Youthdale, the CPW confirmed that there was no incident that resulted in the Child’s admission to the Secure Treatment program at Youthdale but that rather it had been planned, weeks ahead, with a view to obtain an assessment of the Child’s needs and to determine a placement appropriate to those needs. The CPW testified that she had not seen any change in the Child with the intervention offered in the foster home and she was looking for a more psychiatric approach. The CPW added that she felt the Secure Treatment setting was necessary because she felt the Child was not receptive to voluntary participation with services. When asked if any consideration had been given to the non-secure residential program at Youthdale, the CPW testified that there was no bed available and there was a substantial wait list for that program.

30The CPW also testified that, at the time of the Child’s admission to Youthdale, she had not been referred to counselling other than with the [Agency] worker, she had not been referred for a psychological assessment nor was any appointments made yet with the psychiatrist following her release from [the hospital] a month before. Finally, the CPW confirmed that during the Child’s placement in foster care following her release from hospital, the Child had never expressed suicidal thoughts or attempted suicide.

31The Child testified that she did cut herself once when she was about 7 years old. She explained that she was not trying to kill herself but was letting out anger at her father. She testified that friends showed her other ways to let out her anger, such as ripping up paper, and that she had not cut herself since then.

32The Child was asked if she had told the [Agency] worker she would kill herself if placed in foster care on November 22, 2013. She testified that she did say it but that she was lying. She explained she felt no one was listening to her about the abuse by her father and she wanted her mother, her brother and her cat to be safe. She stated she lied because she felt the Society workers were not listening to her and she was afraid her brother would be placed back at home. She testified that she told the workers almost immediately that she had lied about wanting to kill herself but they did not believe her and took her to the hospital.

33When asked about her mother’s allegation that she threatened her with a knife, the Child testified that she did not do it. She stated she confronted her mother about this story and her mother told her she is sorry.

34The Child testified that she has continued to see the [Agency] worker for counselling before her admission at Youthdale and she found it helpful to speak with her. She testified that she was talking about her relationship with her mother in counselling. She added that her mother had also met the [Agency] worker and they were supposed to have a joint session on Friday December 27, 2013, but she was taken to Youthdale instead that day.

35When asked about the slashed couch seen at the house, the Child answered that it was as a result of the last fight with her father when he threatened to hurt her cat. She was scared because he had hurt her previous cat. She testified that she took her cat to try and protect it and tried to throw it out of the window to get it away from her father but the cat clawed at the couch and that is how it got ripped as the couch’s fabric was not strong. She testified it was during the same fight that her father threw her against the television and it fell on her and broke. She said her father told her he hit her because she needed to be more “tough”.

36The Child was asked about her experience in foster care. She indicated that she did have a friend when she was at [foster home A] but she left to move back with her mother. She testified that it was pretty good at [foster home A], the children there were 5, 8 and 9. She explained that soon, [foster parent at foster home A] fell ill and she was sent to [foster home B]. The other children there are pretty old, 16 and 17, but one girl is nice and she took her to the mall and had a snow ball fight with her. They watch television and play video games. The child was asked about her lack of eye contact. She testified she does not really notice this but some people in her class have told her she stares too much.

37The Child was asked about school. She stated that when she stayed at [foster home A] she remained in her previous school where she was in grade 7 in a regular class. She testified it was really good and she had 7 best friends there and they played during recess and passed notes in class and sometimes they got in trouble because of the notes. She testified she was in the arts club and the reading club and she also ran in the track and field competitions in the past where she came in 4th out of about 50 at one competition. She wanted to try out for the team this year but she stopped going to that school when she was moved to [foster home B]. She was told that [foster home B] was too far from her school and she would be registered in a new school after the holidays in January. As a result, she was not in school at all since December 6, 2013. Her brother continued to attend the same school as his new foster home was close to the school.

38The Child was asked if she was physically aggressive with her mother. She denied ever being physically aggressive with her mother. She stated her mother tried to hug her at the first visit and she “braced herself” because she did not want a hug from her mother. She did admit swearing at her mother and calling her stupid a few times because her mother swore at her and called her names, but this only occurred at the first two visits. The Child also denied being defiant with staff stating she usually listen and her friends call her teacher’s pet. She denied ever swearing at staff.

39When asked if she knew what depression means she answered that she did because her mother is depressed. She denied being depressed herself. She testified she does not take any prescription medication nor has she ever taken any her whole life.

40When the Child was asked about the statements regarding her lack of hygiene the Child explained that she does shower and change clothes every day. She testified it is true that she wears the same clothes all the time but washes them. She explained that this is because she does not have a lot of clothes: 3 shirts, 4 pants and 7 hoodie sweaters. She testified that [foster parent at foster home B] told her they would go shopping to get her some clothes but never did. She testified no one ever mentioned to her or asked her directly whether she showered at the foster home. She also explained that she wears her clothes to sleep because she has only one pyjama and it looks like a “giant rabbit suit” and she does not want to wear it.

41The Child also testified that the body odor the Youthdale Psychiatric Crisis Worker smelled when she visited her in her bedroom was due to her previous roommate. She explained that the girl she shared the room with was the one who had a strong body odor. She was also older and used alcohol and, as a result, her bed and blankets retained a strong odor. The Child testified that the girl had been moved but [the foster mother] had never washed the blankets, despite the Child asking her to do so, and the smell remained in the room

42The Board finds that the behaviours recounted by the CPW who was told of it by the school social worker, the [Agency] worker, the mother and the foster mother, may indicate that the Child experienced some turmoil around her disclosure of the ongoing abuse at the hands of her father and her resulting apprehension; however, it does not imply that the Child had a mental disorder.

43The Child engaged in one incident of self-harm many years before the current events. She made a disclosure of wanting to kill herself once on the day of the apprehension to the [Agency] worker but recanted it immediately and explained credibly why she had lied on that day.

44There was some evidence of emotional dis-regulation evidenced by diminished affect and engagement. This however was easily understandable when considering the Child had recently disclosed longstanding abuse by her father and had recently been apprehended. Further, after only two weeks, she had to be re-placed unexpectedly as the foster mother became ill and was taken out of her regular school and separated from her brother as a result. The Board finds that the testimony of the CPW clearly indicated that, while she appeared to genuinely care for the Child and seek what is in her best interest, she applied to place the Child in a secure treatment program in order to have the Child assessed and not because the Child suffered from a substantial disorder of emotional processes, thought or cognition which grossly impairs the Child’s capacity to make reasoned judgements.

45The CPW testified that there was no event that triggered the secure treatment application and the Board heard no evidence of a substantial change in the Child’s presentation between her release from hospital on November 27, 2013 and her admission to Youthdale on December 27, 2013.

46Overall, the Board was left with a lack of information and of any clinical analysis of the behaviours that would take them out of the realm of an expected reaction to a very recent turmoil in a Child’s life.

47The Board finds that criterion (a) was not met.

CONCLUSION

48Pursuant to section 124 (13) of the Act, the Board was not satisfied that the criterion 124 (2) (a) has been met and, therefore released the Child under section 124(13) of the Act, on January 3, 2014.

CONFIDENTIALITY ORDER

49Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties 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.