Applicant v. Society, 2014 CFSRB 64

CHILD AND FAMILY SERVICES REVIEW BOARD

Applicant

v.

Society

REASONS FOR DECISION ON MERITS

Date: November 13, 2014 Citation: 2014 CFSRB 64 Related to: 2015 CFSRB 5, 2014 CFSRB 58 (Order), 2015 CFSRB 05 (Decision) and 2015 CFSRB 15 (Amended Confidentiality Order) Indexed as: Applicant v. Society (CFSA s.36)

INTRODUCTION

1The Applicant filed an application under section 36 of the Child and Family Services Act, R.S.O. 1990, c. C.11 as amended (the "Act") to the Child and Family Services Review Board (the "Board") on August 27, 2014 for a review of her placement at [Group Home] and a determination of her placement.

2The Applicant brought her application because she had her placement reviewed by the Residential Placement Advisory Committee (RPAC) in the [Region] in [date]. She disagreed with the RPAC recommendation that she remain at [Group Home], where she was placed by [the "Society"].

3This Application was heard by the Board on September 22, 23, 24 and October 1 and 2, 2014. The Board had to determine, based on the best interests of the Applicant, the appropriate placement for her. The issue was whether or not another placement, closer to her family was appropriate. Also at issue was the appropriateness of [Group Home] as a placement, because of the Applicant's specific needs and concerns.

4The Applicant's position was that she wanted to be moved from [Group Home] to a placement closer to her family and to a placement that better addressed her need for a quieter environment as well as a better match to her cultural heritage. She also raised issues with the level of monitoring exercised at her school placement and the lack of age appropriate reading material provided to her.

5The Society's position was that the Applicant needs the current placement at [Group Home] because of the recommendations made in the assessment conducted at the [the Treatment Centre], where she was placed before [Group Home], because of sexualized behaviour concerns. The Society submitted that the Applicant required a treatment setting and that [Group Home] specializes in the treatment of sexualized behaviour and trauma. The Society submitted that no other placement is available that meets the recommendations of [the Treatment Centre].

6On October 17, 2014, the Board found that [Group Home] was not the appropriate placement for the Applicant and ordered that she be discharged from the residential placement at [Group Home]. The reasons for this decision are set out below.

BACKGROUND

7The Applicant is [age] old. She likes to read and write. She has been in care since [date]. She came into care because of her mother's difficulty managing her behaviour as well as allegations of physical abuse. During the investigation, the Applicant disclosed having engaged in sexual relations with a number of boys and men from her neighbourhood since age 12, some of them reported to be gang affiliated. Later in her placement, she also disclosed having been sexually abused at age 7 by [a person].

8Before coming into care the Applicant lived with her mother and some of her siblings, including her [ ] sister. Her father did not reside with the family and he had passed away [date] from [ ]. While she was still residing at home, the Applicant was seeing a therapist for individual and family sessions.

9Her first placement in care was at a Foster Home. During this placement, the Applicant participated in a psychological assessment in [date]. The findings of this assessment suggested that she presented with symptoms of PTSD, social skills difficulties, symptoms of anxiety, depressive affect and thoughts, conduct problems and sexual preoccupation. The psychologist was of the opinion that the PTSD was most likely related to a history of physical abuse, the witnessing of the physical abuse of her [sibling], witnessing community violence, being sexually victimized and the death of her father.

10A number of recommendations were formulated by the psychologist including: permanency planning as soon as possible, conduct of a psycho-educational assessment and speech and language assessment, individual therapy to reduce the symptoms of PTSD and the related anxiety and depression, relaxation exercises, supervision of interactions with boys and men in the neighbourhood, expansion of her emotional repertoire, sexual education health and safety program with a focus on risk reduction, exploration of areas of interests and expertise to engage in more age appropriate activities, one on time special time with her care giver to feel sustained care and attention and to develop an appropriate caring intimate relationship including some physical tactile closeness with the foster mother.

11This placement ended in [date] because the Society felt the foster home no longer could provide the level of safety the Applicant required. This stemmed from an incident where the Applicant, posing as an older female on social media, invited an older male to attend her home to engage in sexual activity. This male attended at the foster home while the Applicant was at school.

12The Applicant was then placed at [ ] Treatment Center in their emergency secure unit for 30 days after which she was placed at [the Treatment Centre] in the [ ] unit on [date] and remained there until her current placement at [Group Home] which started on [date].

13While the Applicant initially filed an application to the Board to have the emergency secure treatment placement reviewed, after she was told by her Society worker that if she was released by the Board she would be placed in a home 2 to 3 hours away from [the Region], the Applicant withdrew her request for review.

14Similarly, when the Applicant was told that the Society wanted her to remain at the [the Treatment Centre], the Applicant initially did not consent to the placement. She was told once again by her Society worker that, if she did not consent to this placement, she would be placed in a home 2 to 3 hours from [the Region]. Following this discussion, the Applicant signed the consent to remain at [the Treatment Centre].

15During her stay at [the Treatment Centre], she participated in a speech and language assessment which suggested expressive and receptive language difficulties as well as higher level language problems. However, it was unknown to what extent any of these were exaggerated by her emotional issues. In that same period, she participated in another psychological assessment which suggested that she was at high risk with respect to sexual issues, that she had low self-esteem, a preoccupation for sexual behaviours and that she was using sex to overcome her emptiness and lack of ability to deal with interpersonal issues.

16Upon the Applicant's discharge in [date], [the Treatment Centre] indicated that she did very well expressing her feelings in her journal and that should be encouraged in order to understand her feelings and what she is going through. The psychiatrist also recommended that she be placed in a very structured and secure placement with no access to the City, males and the internet.

17As a result, on [date], the Applicant was placed at [Group Home] in a rural setting 2 to 3 hours from [the Region].

18Almost immediately, the Applicant raised her concerns with this placement and has voiced them to her Society worker and to the RPAC for the last year.

ANALYSIS

19Under section 36(1) of the Act, a child who is twelve years of age or older and lives in a residential placement that she objects to can apply to the Board to review the placement. Section 36(1) provides:

36(1) A child who is twelve years of age or older and is in a residential placement to which he or she objects may, if the placement has been reviewed by an advisory committee under section 34 and,

(a) the child is dissatisfied with the advisory committee's recommendation; or

(b) the advisory committee's recommendation is not followed,

apply to the Board for a determination of where he or she should remain or be placed.

(6) After conducting a review under subsection (2) the Board may

(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.

20Section 1(1) of the Act states that the most important purpose of the Act is to "promote the best interests, protection and well-being of children". While the Board is determining placement on a fresh (de novo) basis and not reviewing the RPAC decision, the Board also considers the factors that the RPAC is mandated to consider in section 34(10) of the Act that provides:

34(10) In conducting a review, an advisory committee shall,

(a) determine whether the child has a special need;

(b) consider what programs are available for the child in the residential placement or proposed residential placement, and whether a program available to the child is likely to benefit the child;

(c) consider whether the residential placement or proposed residential placement is appropriate for the child in the circumstances;

(d) if it considers that a less restrictive alternative to the placement would be more appropriate for the child in the circumstances, specify that alternative;

(e) consider the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity; and

(f) where the child is an Indian or native person, consider the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child's cultural identity.

21In this case, the Board considered the following criteria:

a. The child's physical, mental and emotional level of development, her 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 she would benefit from the program.

b. The child's cultural background.

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

d. The child's views and wishes.

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

f. Other relevant circumstances

22With 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 RPAC advisory committee must recommend a less restrictive service where it considers that the provision of a less restrictive service would be more appropriate.

23The onus is on the Society to show that the current placement at [Group Home] is in the Applicant's best interests, on the balance of probabilities. After hearing the evidence, the Board was not satisfied that placement at [Group Home] was in the Applicant's best interests. The Board determined that placement closer to her home community in a treatment foster home was in the Applicant's best interests and therefore the Board ordered that the Applicant be discharged from her current placement.

The child's level of development and needs

24The Board considered the Applicant's physical, mental and emotional level of development. The Board also considered the related best interests factor: 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 she would benefit from the programs. These two criteria were considered together as they are connected through the evidence.

25There was no dispute by either party that the Applicant has special needs. The dispute is in terms of defining these special needs and determining how they are best served. The Society wants the Applicant to remain in her current, "stable" placement indefinitely and the Applicant wants to move closer to her family and community, in a family based setting rather than remain in the "treatment" facility.

Psychological assessments and treatment plans

26A number of assessments were performed on the Applicant over a period of two years to evaluate her emotional and behavioural functioning. The first, and most comprehensive assessment that was available to the Board, was performed while she was residing at the foster home in [date] and was based on review of the Society's file information as well as observation and clinical interviews with the Applicant, and psychological testing.

27The Applicant was found demonstrating behavioural symptoms of anxiety and withdrawal within the "at risk" range, suggesting a moderate level of maladjustment.

28Looking at trauma symptoms including PTSD, the Applicant [information about the Applicant's history that she told the assessor]. In response to these experiences, the Applicant indicated experiencing the three key symptoms related to PTSD: Re-experiencing, Increased Arousal and Avoidance, within the "mild to moderate" range.

29Results from a self-report questionnaire indicated that the Applicant's personality profile suggested she was currently repressing her dependency needs from earlier years and instead was focussing on a push for autonomy. She presented as independent minded and projected a sense of confidence and boldness in her interactions with peers and seemed unconcerned by or without fear of the consequences of her actions. She anticipated being disillusioned in relationships with others and, as a result, could behave in an unruly, obstructive manner; creating the expected disappointment she had experienced in the past. When seeking some intimacy from family and peers, she felt deeply untrusting, fearful of domination and suspiciously alert to efforts that might undermine her autonomy. Her feelings of anger and resentment prevented her from accepting dependency and nurturance, thus her autonomy drives ended up permeating most of her relationships.

30Clinical signs at the time of the assessment suggested she most likely grossly under reported clinical problems. However, she did report some thoughts of self-harm and suicidal ideation that presented mostly when she did not "get her way" or when she felt no one understood her. She reported not having a suicide plan. The psychologist found strong evidence of a propensity to exhibit conduct problems related to hostile feeling. Her responses also suggested she suffered from a variety of attention and impulse control difficulties. Results of the projective testing and clinical interviews suggested the Applicant saw herself as exhibiting depressive affect including feelings of loneliness, sadness and distress.

31The findings of this assessment suggested that the Applicant presented with symptoms of PTSD, social skills difficulties, symptoms of anxiety, depressive affect and thoughts, conduct problems and sexual preoccupation. Her symptoms of PTSD suggested that she was in a high state of arousal and as such, she was easily vulnerable to be triggered by internal or environmental cues when they reminded her of previous traumatic events and evoked overwhelming, confused, repressed feelings; which could trigger impulsivity leading to impulsive inappropriate social sexual behaviours or to depressive withdrawal. She was found to be most likely triggered by cues related to feelings of rejection, worries of abandonment and loss, especially by boys or men. The Applicant tried to cope with her traumatic experiences by using a self-protective dismissive style in which she denied, avoided and distanced herself from experiences of trauma. As such, she relied on the compulsive control of her negative feelings of sadness, anger and fear through false-positive thinking.

32The assessor found that several factors have most likely contributed to the Applicant's vulnerability to the sexual solicitation of boys and men in her community. She may have possible cognitive and language deficits as well as attention deficits leading to poor impulse control and poor judgment. She also feels a sense of inner emotional emptiness and has repressed unmet needs for care and emotional intimacy as well as unresolved feelings of rejection abandonment from the loss of her father, all leading to traumatic grief. Her "acting out" behaviour relating to her mother's rules may have been propelled by anger and resentment related to past emotional disappointments and feelings of rejection related to her relationship with her mother as well as a desire to exert her independence outside the home, as she feels hopeless about obtaining care within the context of family relations. As well, her history of being a victim of physical abuse in the home led to the development of compulsively compliant behaviour in the home in relation to authority figures, out of fear of domination and harm. This left her unwittingly projecting a sense of vulnerability, putting her at risk for further victimization by making her a target for predators in the community.

33The Assessor commented on the Applicant not viewing herself as a victim but rather as a willing participant: her own identity seemed to be related to her ability to attract members of the opposite sex, please them and obsessively maintain their attention in order to keep the painful feeling of rejection and abandonment at bay. It seemed she had given up hope that she could obtain any nurturance, care or a sense of intimacy within the context of a caregiving relationship with an attachment figure. This profile put her at risk for further victimization and ultimately put her safety at significant risk in the future until these psychological conflicts could be resolved. In order to assist her resolve these issues, the assessor recommended a number of measures geared towards improving her self-esteem, developing a trusting relationship with a caregiver and, generally, addressing the symptoms of the trauma she had suffered.

34Of importance to the Board, it was noted that at the time of this initial assessment, the Applicant had not yet disclosed having been sexually abused by [a person] at age 7.

35The report of the assessor was provided to the Society worker in [date] and it does not appear, from the evidence heard, that most of the recommendations were acted upon. The Board did hear evidence that the Applicant was referred to the [children's health] program to work with a nurse on sexual education, this continued until her current placement and appeared to be positive for the Applicant. It was however discontinued when the Applicant was moved to the remote rural location of [Group Home].

36The Board also heard evidence leading to the conclusion that the level of supervision of the Applicant that was recommended in the assessment was not consistently applied while she resided at the foster home; despite the fact that the Society workers testified they believed it was the case. The Board heard that the foster mother did not always pick up the Applicant from school and that she sometimes was left to walk back home on her own through the neighbourhood. It was one of such occasions that the Applicant engaged in performing sexual acts on boys from her school instead of working on a group school project as she had told the foster parent.

37It was also clear from the evidence that the Applicant had unsupervised access to the internet while residing at the foster home. The Board heard evidence that the Applicant had made up a fake identity on social media where she presented as an 18 year old female.

38These two factors contributed to the Applicant's actions of [date], where she invited an adult male over the internet to the foster home to have sex; which led to the Society moving her from the foster placement to [the Treatment Centre].

[The Treatment Centre] Assessments

39Following the Applicant's admission at the [the Treatment Centre] in [date], the treating psychiatrist requested from the Society that a Sexual Risk Assessment be done regarding her sexual preoccupations. The psychiatrist indicated that the trauma assessment that was completed indicated a preoccupation for sex and sexual relationships and her feeling of being obsessed with sexual relationships with boys and men. A sexual risk assessment would help identify her risk in the community and suggestions for placement and further treatment. However, this specific assessment was never performed. The Board initially heard from the Society's Child Services worker that she did not know if the assessment had been performed. Similarly, the Clinical Director at [Group Home] testified not knowing if this assessment was ever completed.

40During the testimony of the previous Child Services worker, the Board heard that a decision had been made not to perform a sexual risk assessment on the recommendation of the Society's staff psychologist who felt it would not provide anything more than was already known from the initial trauma assessment. This recommendation was made without seeing the Applicant. The Board finds this conclusion troublesome as it had been a recommendation of the treating psychiatrist at [the Treatment Centre] who had been aware that a trauma assessment had been completed and yet recommended that a sexual risk assessment be performed. The more specialized information that would have been gathered in such an assessment would have been helpful to the Society in exploring the most appropriate placement for the Applicant and it would have shed light on the least restrictive option that could safely meet the Applicant's needs.

41A psycho-educational assessment as well as a comprehensive language assessment and comprehensive psychological testing were performed in [date] while the Applicant was placed at [the Treatment Centre]. The Board was not presented with these reports but informed through the Discharge Summary from [the Treatment Centre], as well as through the testimony of the Society worker, of the findings and recommendations stemming from these assessments. In summary, the language testing revealed both expressive and receptive language difficulties as well as higher level language problems. However, it was also suggested that it was not known to what extent if any these issues were exaggerated by her emotional issues. She was found to have strength in expressing herself in writing.

42From the psychological testing, consistent with the findings of the previous psychological assessment performed in [date], it was suggested that the Applicant was at high risk with respect to sexual issues. She was found to have low self-esteem, a preoccupation for sexual behaviours, to be using sex to overcome emptiness and to lack the ability to deal with interpersonal issues. The recommendations at the Applicant's time of discharge, in [date], were that she be placed in a setting with no access to the City, the internet or to males, in a place that is very structured and secure. The Board heard from the Society that it is on these recommendations that she was placed at [Group Home].

The [Group Home] "Assessment"

43Three months after her placement, the Directors at [Group Home] met with their consulting psychologist to "review" the Applicant in order to provide treatment recommendations and develop a treatment plan. It is to be noted that the Applicant was never seen by the consulting psychologist and that the information upon which the recommendations were made was provided through the Society's "Social History" document and by the two Directors of the [Group Home] who in turn had received their information from Society workers. This proved very troublesome to the Board. Indeed, the Board realized that some very substantial factual inaccuracies had been transmitted from one person to the next, from one part of the file to another, from one service provider to the next and, like in the notorious "telephone game", exaggerations and inaccuracies on the original facts took a life of their own and affected the decisions made about the care and treatment of the Applicant.

44Some examples of these factual inaccuracies are as follows:

1. The Society worker testified that the Applicant was present at a shooting. No corroborating evidence was presented in that regards such as police reports or testimony of a witness. Similarly, the Clinical Director testified that the Applicant was a witness to a shooting at [...] neighbourhood. However, the Board heard from the Applicant that she was not present at this incident but rather had been at home when it occurred and that she had only seen police vehicles and news vans through her bedroom window. The Board heard no evidence that would lead to it not believing the Applicant's version of the events. The Board found that the Applicant was not present during the shooting.

2. The Society worker gave evidence that while at [the Treatment Centre], the Applicant refused to eat because [...]. This was allegedly reported to her by the treating psychiatrist who did not testify before the Board. The Applicant explained that she had tried to clarify this misunderstanding with the worker on a number of occasions to no avail. The Applicant indicated that what she did say to the psychiatrist when explaining why she did not want to eat lunch was that she had gotten in the habit of not eating lunch while attending school because during lunch time, she would [...] and did not have an appetite to eat anything after doing so. This explanation made a lot more sense to the Board than the version reported by the Society worker. The Board was also presented with documentary evidence of journal writings made by the Applicant where she had voiced the same feelings of not wanting to eat when thinking of her past sexual behaviours. These journal entries were made prior to the hearing in the context of the Applicant's therapy and therefore, the Board found that they accurately reflected the Applicant's feelings about her occasional aversion to food better than the version of the psychiatrist as reported by the Society worker.

3. The Clinical Director also testified that the Applicant was a victim of [a specific sexual assault...]. When asked during cross examination where she had received this information the Clinical Director wavered in her statement and indicated that she was not certain it had been [...], that it may have been [...] and that she believed she had gotten the information from the Society worker. In cross examination, the Clinical Director confirmed that the Applicant had told her she was never [...]. When asked what she thought of the Applicant's denial of this fact, the Clinical Director simply indicated that the Applicant was in denial without providing information as to why she had not believed the Applicant. In her testimony, the Applicant explained that she tried to clarify this inaccuracy. She had stated to her worker that she had had sexual relations with a large number of boys in her life, [...]. She testified that she had never indicated that [...] and she never mentioned [the specific sexual assault...]. During her testimony, the Applicant confirmed this version of the events as well as the fact that she had informed both her workers and the staff at [Group Home] that these events were reported inaccurately and the Board has no reason to not believe her and therefore prefers her version of the facts to that of the Society worker and Clinical Director.

45Therefore, as a result of the information provided by the Clinical Director, the consulting psychologist concluded her report by stating that the Applicant was benefiting from the structure and supervision provided by the residence and that although the Applicant had not engaged in sexualized behaviours with the other residents, it was

... important that [Group Home] staff remain hyper-vigilant in supervising her, as she will continue to be invested in returning to her pattern of sexual acting out. [The Applicant] will likely require long-term therapeutic intervention, given that it will take considerable time for her to adjust to the emotional and physiological changes inherent in reducing her dependence on hyper-stimulation. During this period, she will continue to benefit from consistent daily routines, consistent predictable interactions with the staff, and the opportunity for group activities with stable peers. Finally, it is important to note that [the Applicant] may continue to refuse clinical work, such as active counseling. However, [the Applicant]'s experience of consistency, stability, and safety should be regarded as an integral part of the treatment work, and as having equivalent value to individual counseling or group work.

46She concluded her report by stating that the residence's staffs needed to focus their intervention on helping the Applicant reframe her perception that sexual behaviour was her only avenue of self-esteem, competency and ability to control the outside world, and allow her to build a healthier future using more adaptive coping strategies.

47Unfortunately, there is no mention of the nature of the plan, on a practical level, of how the staff was to achieve this goal. This was similarly reflected in the testimony of the Clinical Director of [Group Home] heard by the Board.

48The Board heard from the Clinical Director that the residence followed a psychodynamic model which

(...) assumes that an issue underlines the behaviour and the goal of the program is to explore that issue; to bring it forward, to address it rather than just stop the behaviour.

49She stated that the program actually does not target the behaviour and try to make it go away, but that "when the behaviour fades, it would be a sign that the issue is getting resolved". To achieve this goal, she testified that individual therapy was the preferred model.

50The biggest concern that faced the Board having heard this testimony is that the entire treatment plan and strategy put in place by the Clinical Director at [Group Home] was based on a distorted idea of what the "underlying issue" was. Her plan was to treat the Applicant as a victim of [a specific sexual assault...] and witness to a shooting resulting in PTSD through individual therapy. The Clinical Director testified that it was her opinion that the Applicant's therapy was not progressing because she was not opening up about those two specific events which the Board found did not occur.

51In fact, the Board heard the testimony of the Applicant that she clearly, repeatedly and consistently indicated both to her workers and staff at [Group Home], and to the Board directly, that she was not the victim of [the specific sexual assault], as described by the Clinical Director. What she did admit to was having engaged in sexual behaviour with a large number of boys and men on separate occasions, [...].

52It was clear to the Board that the Clinical Director at [Group Home] has been engaged in an attempt to treat the Applicant for the wrong trauma, based on inaccurate and exaggerated information, while the real ones were left unaddressed. This despite the fact that her "consent" to the sexual activity was not valid, as it was tainted by her pre-existing trauma resulting from the physical abuse at the hands of her mother and brother, as well as the earlier trauma of the sexual assault by [a person] when she was 7 years old and the fact that she was not old enough to form a valid consent to this activity.

53With regards to the treatment modality, the Clinical Director testified that, while individual therapy was the preferred method, if a child did not respond to this model, the facility would "try to adapt to the child's preference". She indicated the facility had a variety of non-traditional treatment methods to offer. She mentioned social skills taught through drama; which she described as "less apparent directly as a therapy but achieves the same goals". She also testified to the fact that the "entire program" is a therapeutic environment. In her own words, she stated that "in a foster home you would take a child out for treatment, in my home, the placement is the treatment". Other possible therapeutic tools she mentioned included art therapy, giving the Applicant the chance to "experience being a child" by going camping and roasting marshmallows and group work for anger management. Mostly, the "therapy" used with the Applicant was to let her write her journal and letters to staff as she wished. The Board heard multiple times that this was basically the main form of therapy used for the Applicant.

54The Board finds that the treatment that was offered to the Applicant was not adequate to address her needs. [Group Home] operated on recommendations that were based on inaccurate facts and therefore, they were not able to develop an appropriate plan of care for the Applicant.

The Applicant's privacy interests

55Throughout the hearing, the Board heard testimony about "letters" written by the Applicant where she reflected on past events of her life and also on her feelings about these events and their effect on her. These letters were for the major part given to a Child and Youth Worker at [Group Home] with whom the Applicant was starting to build a trust relationship. This worker gave the letters to the Clinical Director. The Applicant was aware that the worker would do so. However, the Clinical Director then had the letters typed by her secretary and provided some of them to her consulting psychologist and to Society workers. This was done without the Applicant's knowledge or consent. The Applicant learned of one such instance where it became apparent the Applicant's worker had shared the letter with the family services worker who shared the content of one of the letter[s] with the Applicant's mother who in turn confronted the Applicant with this information.

56It is very disturbing that such an action took place. It is not entirely clear to the Board for what purpose the letters were shared with the Society workers. It was submitted by the Applicant's counsel that this was done as a means to provide information to be used in the Child Protection Proceedings in support of the Society's position. Considering the specific selections of letters made by the Clinical Director to provide to the Society and considering that neither Society workers testified that they had any direct involvement in any treatment planning for the Applicant, it appears to the Board that this was likely the real purpose of this disclosure.

57However, regardless of the intention behind the action of the Clinical Director, the sharing of the Applicant's letters is concerning to the Board. These letters formed the content of her therapeutic process as well as the basis for the trust she had started building with the Child and Youth Worker. Sharing these letters was detrimental to her progress as it went squarely against one of the basic recommendation made by the initial assessor to have the Applicant develop a trusting relationship with a caregiver. This was also detrimental to the Applicant's emotional wellbeing and the Board did take these actions in consideration in the determination of the appropriateness of the current placement.

Need to develop self-esteem

58The psychological assessments performed on the Applicant all indicated that she required encouragement and strategies to develop better self-esteem. Throughout the testimony of the Clinical Director of [Group Home] as well as Society staff, the Board heard evidence that led the Board to conclude that both the [Group Home] and the Society failed to follow this very basic recommendation. For example, when the Applicant requested to attend a French Immersion program for school, it was denied without proper research into this possibility.

59The Board heard from the Clinical Director that she believed that in order to attend such a program, the Applicant would have needed to have French language education rights. The Clinical Director indicated this was the information provided to her by the Child and Youth Worker assigned to accompany the residents in the community school. This information was incorrect and a simple search on the local school board web site would have provided accurate information; [...].

60The Clinical Director, when asked whether the Applicant had been in a French immersion program before being in care of the Society, testified that she was not sure but believed the Applicant had "some exposure but not a lot". Not only is this incorrect, no one, not the facility nor the Society, bothered asking the Applicant whether she had attended such a program when she was in her mother's care. The Board did ask the Applicant who confirmed she had been enrolled in a French immersion program when she lived at home. Furthermore, even acting on the inaccurate belief that the Applicant could not attend a French immersion program, [Group Home]'s Clinical Director decided not to provide the Applicant with a tutor to continue developing her French language skills. The reason provided to the Board was related to the cost of such a service.

61During her stay at [Group Home], the Applicant also requested to learn a musical instrument, the trumpet. The Clinical Director indicated that it was suggested to the Applicant she could pursue learning a musical instrument through school. The Applicant indicated that she preferred to learn privately. The Board heard from the Clinical Director that this request was denied because the Applicant was not a Crown Ward and she did not want to incur this expense for a child who might return to live home. The Board is concerned by this approach to determining what expense is going to be incurred, especially when the clinical recommendations would have indicated a need to encourage the Applicant when she voiced a desire to engage in an age appropriate activity such as this.

62The Board also heard that the Applicant was not offered art therapy during her stay, despite an express affinity and skill for drawing and despite the Clinical Director having indicated earlier in her testimony that this was one of the therapeutic methods that could be effective with the Applicant and indicated given that she was not engaged in traditional one on one talk therapy. The Clinical Director once again indicated that various programs were offered on a rotation because the facility cannot offer everything all the time as it would be too costly.

63Having heard all of the above evidence and reviewed the documentary evidence that was provided by both parties about the Applicant's physical, mental and emotional level of development, her physical, mental and emotional needs, including special needs and the appropriate care or treatment to meet those needs, the Board finds that the Applicant requires specialized treatment to address her emotional trauma resulting from her childhood sexual assault as well as the abuse she suffered at home. The Board also finds the Applicant needs forward looking therapy to assist her in developing coping mechanism to eliminate her problematic sexual behaviours. The Board finds the Applicant was not provided with appropriate care or treatment to meet those needs in her current placement.

THE CHILD'S CULTURAL BACKGROUND

64[Group Home]'s Clinical Director, when asked about the concerns that were raised by the Applicant about the placements failing to meet her cultural needs, minimized the importance of these cultural needs. The Clinical Director testified in a dismissive tone that "not all my staff know how to [do] her hair" and that the Applicant's mother was supposed to "take care of that" during the regular access visits in the Applicant's community. She indicated as well that generally at [Group Home] in order to encourage and recognize the residents' cultural identity, they were offered "cultural food", there were different flags in the residence, they attended at Native ceremonies and that they "make an effort to expose the kids to differences of all kinds".

65There is a very clear distinction between engaging in diversity education and recognizing the Applicant's own culture needs and encouraging her to continue developing pride in her cultural identity and, ultimately, providing services in a manner that recognize and take into consideration this identity. Especially in a case where the development of healthier self-esteem has been identified as an important clinical goal, one would expect the service providers to make a concerted effort to meet the child's cultural need in order to promote her cultural pride.

66Throughout her testimony, [Group Home]'s Clinical Director voiced personal views which reflected a background that does not match the life experience of a racialized youth from the city such as the Applicant. One very telling example of this is when she stated that, as part of her trauma treatment, the Applicant needed to experience being a child again. The Clinical Director's definition of this consisted in going camping, roasting marshmallows or jumping on a trampoline. It appeared to the Board that very little thought was put into adapting these views to the cultural life experience of the Applicant.

67Furthermore, the environment itself of [Group Home] was found to not be a good cultural match for the Applicant who is a racialized youth. When asked about her staff, the Clinical Director confirmed that none of them are racialized. The location of [Group Home], in a rural community 2 to 3 hours away from [the Region], is also a very foreign environment for the Applicant. The Society staff testified that this choice was made with a view to follow one of [the Treatment Centre]'s recommendations, i.e. that the Applicant be away from the City. However, it does not appear from the Society's evidence that any consideration was given to the cultural needs of the Applicant when the decision was made. The Society's obligations under section 1 of the Act mandates that services to children be provided in a manner that respect their culture, so long as it is consistent with their best interests, protection and well-being. It is not enough to state that a service is for the protection of a child, the Society must be able to show it has considered the cultural needs of the child even if, in the end, those needs must be subjugated to the protection factor. In this case, the evidence showed that the question was not even explored.

68Not only does the Act place a legal obligation on Societies to provide services in a manner that recognizes the client's cultural background, it is also a well documented fact that the cultural background of children who have been sexually abused bears implications for treatment. Clinicians' knowledge and consideration of the child and the family's cultural values, beliefs, and norms is essential when providing services to children who have been sexually abused.

69Once again, throughout the Clinical Director's testimony, the Board heard comments about the Applicant that were telling of the lack of investigation of the cultural implications on the therapeutic planning for the Applicant. Much was made by the Clinic Director about the Applicant's clothes indicating that, in her opinion, the Applicant dressed in manner consistent with gang affiliation and that her insistence on doing so reflected a passive aggressive trait of personality. However, the only fact to support this statement was that the Applicant "always wore the color red". On cross examination, when she was asked if it was possible that the Applicant simply liked the color red, the Clinical Director had no answer to provide. As well, various comments were made about the Applicant needing to be encouraged to dress with "modesty"; which has a moral connotation that taints the clinical neutrality of the placement.

70In this case, the Board heard evidence that leads it to conclude that the Society and the Clinical Director of [Group Home] exhibited either a lack of understanding of the impact of the culture of the Applicant on her needs and on the appropriateness of the placement at [Group Home] or a disregard of these facts and their effect on the placement planning for the Applicant.

POSITIVE RELATIONSHIP WITH FAMILY

71With respect to the importance of a child's development of a positive relationship with her parents and her secure place as a member of a family, the Applicant's relationship with her mother and siblings is important to the Applicant and she has made this position clear both to the Society and to [Group Home]'s Clinical Director.

72The Board finds that the distance between [Group Home] and the Applicant's home community creates a significant barrier to access to her family which is not in the Applicant's best interests. Furthermore, and more importantly, the Board heard testimony that lead to a conclusion that the Society workers involved as well as the Clinical Director have undermined the Applicant's continued development of a positive relationship with her mother.

73During the testimony of the Society workers and the Clinical Director, the Board heard very negative comments regarding the Applicant's mother. She was accused of undermining the Applicant's placement, of being uncooperative. The Clinical Director testified that she perceived the Applicant's mother as quite adversarial and that it was impossible to get her to understand the safety concerns for the Applicant.

74The Clinical Director also alluded to the fact she thought the Applicant's mother was not following the directives of the Society during access visits. Yet, despite an obvious ability to do so, the Society worker has never felt the need to attend for an unannounced visit at the mother's residence when the Applicant attends for her access visit with her mother. The worker also testified that to her knowledge there was never any incident of sexualized behaviours on the part of the Applicant during access, yet, the Clinical Director repeatedly testified that there was suspicion that such incidents could be occurring; she could not however give any evidence that it had indeed occurred.

75The Board was also presented with a number of emails exchanged between the Clinical Director and other professionals involved, from the consulting psychologist to Society representatives. The Board found the tone of the messages relating to the mother to be generally dismissive and disrespectful.

76Even though the Society has made a decision to seek permanent wardship of the Applicant, no final decision has been made by the Court in that regards and, as a result, it is the Society's obligation under section 1 of the Act to continue to promote the integrity of the Applicant's family unit. The placement at [Group Home] did not meet that obligation.

THE CHILD'S VIEWS AND WISHES

77The Act mandates that the Society take into account a youth's views and wishes in decisions about her or his placement [s. 61(2)(e)]. The Society should have consulted with the Applicant before moving her to [Group Home] but failed to do so. Not only did it not consult the Applicant, it disregarded her objections that were subsequently clearly stated on a number of occasions to a number of different persons. The stated reason for the dismissal of the Applicant's preferences has always been the Society's opinion that she required an isolated environment to address her therapeutic needs; however, it does not appear to the Board that the Society ever had a clear idea of what those needs really were or, how [Group Home] could meet her needs.

78As early as [date], the Applicant stated to her Society worker that she wanted to be moved from [Group Home]. She wrote a letter directly to her worker at the time explaining the reasons why she wanted this move. The Society worker testified that she received the letter and reviewed it at that time. Shortly after, the Applicant's file was transferred to the current worker. Her testimony was that she did not think she ever discussed the letter with the Applicant; in fact, she indicated that the letter had remained at her desk for the past 9 months, never even making it to the Applicant's file.

79Obviously, nothing was done about the Applicant's concerns during that period; this however, did not deter the Applicant and she continued to express her concerns to her worker both in her writings and when she met her worker for the mandated visits she had with her. The Applicant persevered in her attempts to have her views taken into consideration and she finally contacted the Advocate for Youth who assisted her with filing the current application.

80The Board finds that the Applicant's views and wishes are clear. She does not want to stay at [Group Home]. The evidence heard by the Board from all witnesses, including the Applicant, clearly shows that she is a quiet and introverted young woman. She has indicated numerous times that the environment at [Group Home] is disturbing to her. She finds the residents loud and she is upset when she witnesses the restraints that are performed on the other residents.

81The Applicant clearly stated at the end of her testimony that she wishes to be placed in a family environment where she will be cared for by "a mother and father". The Board gives significant weight to the Applicant's views and wishes. Her views and wishes are consistent with the Board's other considerations and favour a move out of the rural setting where she was placed over a year ago, closer to her home community.

THE APPROPRIATENESS OF THE PLACEMENT

82The Board considered the appropriateness of the Applicant's placement in her circumstances. The Board found that the placement at [Group Home] was not appropriate for the Applicant, due to the environment and the Applicant's experiences at [Group Home].

83In her application, the Applicant wrote to the Board that she found it difficult and distressing to be around youth who are acting out, who are loud and are then placed in physical restraint. She stated that she is also concerned about being constantly followed and monitored at school and would like to be provided with more age appropriate reading material. Finally she indicated that, being too far away, she felt isolated from her family.

84The Board was never able to obtain testimony that would clarify what the "program" at [Group Home] is exactly. The Board heard contradictory testimony from the various workers and the placement supervisor as to the nature of the residence itself. In turn, it was described as a group home, a treatment residence, a treatment facility. When asked by the Board specifically about the licence of the facility, the clinical director indicated: "there is not a category for the program we provide".

85The placement supervisor confirmed that [Group Home] operates under a regular group home licence. He also explained that [Group Home] is part of a group of outside paid resource with which a group of Children's Aid Societies have entered into a contract to provide care for some of the children placed in their respective care. The evidence of the Placement supervisor confirmed that his department had not done any searches for a placement with any other facility than the ones on this list. The Board finds that it was inappropriate for the Society to not look at any other potential facility that could have offered a less restrictive placement for the Applicant. The obligation to do so is clearly stated and in the Act, regardless of an existing contractual relationship between the Society and a possible placement.

86The Board also found it greatly disturbing that a self-proclaimed "Treatment Facility" without any specific licensing or designation could offer highly specialized services without any measure of qualifications and credentials. And, even though the Clinical Director indicated that she consulted with professionals such as psychologist and psychiatrist, the Applicant's day to day "treatment" was provided by regular child and youth workers. More than once, when asked what exactly is the treatment for the Applicant, given that she refused to engage in one on one counselling offered to her at [Group Home], the Clinical Director simply repeated that it was the environment itself that formed the treatment.

87When looking at the information that could be gathered about this "treatment environment", the Board was not satisfied that it was appropriate for the Applicant. The Board heard about measures in place that are more reminiscent of detention than treatment. There are locks on all doors and windows, the Applicant was not allowed to leave the property, she was not allowed to talk to other youths in the residence without staff present, she was subjected to rules about her clothing and hairstyles.

88Apart from the physical aspect of the air of "detention" in the [Group Home] residence, the evidence also presented an almost punitive approach towards the Applicant with regards to the sexual behaviour she has exhibited as a result of her own abuse. Words such as "she showed no remorse for", "choosing to act" or "realizing she has other options than to engage in sexual behaviour", repeatedly appeared in the discourse of the workers and Clinical Director. Instead of presenting her behaviours as symptoms of her own abuse, they were repeatedly qualified as problem behaviours, which entailed a level of choice. The narrative of the treatment plans through the various placements reflected this approach. The Board heard testimony and saw in the documentary evidence multiple references to sexual addiction and sexual obsession. The Board finds that it is apparent a critical aspect of the psychological causation of the Applicant's behaviour has been missed by the facility; that of the underlying cause of the behaviour.

89It is imperative that this Applicant be provided services by a specialized service that can determine the best course of treatment to address the issues that have been missed so far for the Applicant. Such services can be obtained from providers like the [Centre] that specializes in Children's Mental Health Services and is affiliated with the [university] or through the [children's health] program.

90Furthermore, the Board was disturbed by some of the statements heard regarding the rules imposed on the Applicant about her clothing. In the Society's Plan of Care dated [date], it is mentioned that when the Applicant arrived at [Group Home], staff went through all her belongings and put away some of the Applicant's shirts with "unpleasant writings or inscriptions". They also talked to the Applicant about appropriate dress, virtues and rules in the home. It should be noted that the clothes brought to [Group Home] by the Applicant were the same she had while residing at [the Treatment Centre]. The Board questions the level of scrutiny of [Group Home] staff in choosing how the Applicant should dress. Similarly, the Board saw in the documentary evidence that [Group Home] had refused to buy the Applicant "sweat pants" and had instead purchased "yoga pants". The Board also heard comments from the Clinical Director that she considered that every time the Applicant wore the colour red, it was an act of passive aggressive resistance to reinforce her gang affiliation.

91The Board was again concerned that the Applicant was not allowed to have reasonable privacy and possession of her own personal property. The Board did not hear any evidence that would have reasonably justified seizing the Applicant's clothing.

92Another aspect of the placement that disturbed the Board is the fact that no behaviour modification therapy was ever offered to the Applicant nor was the recommended referral to the [children's health] treatment program pursued once she was placed at [Group Home]. Not only was this highly recognized program referral abandoned, the ongoing sexual health education service that had been offered to the Applicant, and that she herself described as very helpful on a number of occasions to her worker, was abandoned once she was placed at [Group Home], likely because of the distance of the placement.

93There was no direct evidence to contradict what the Applicant said had happened at [Group Home]. The Board therefore accepts the Applicant's version of events. What the Applicant described is an environment that is causing her to feel more anxious and withdrawn; both symptoms that the initial assessment recommended to be on the lookout for; as they may indicate a worsening condition. The Clinical Director testified that the Applicant spent a lot of time by herself, in her room or in another room, isolated and not engaged in activities with the other residents. Yet, the Clinical Director did not see any problem with this fact. The Applicant also described how the environment, filled with problematic behaviours from the other residents that often resulted in restraints, were bothering her and making the facility a scary place to reside. Further, the stress the Applicant feels at being exposed to the crises of her peers is emotionally detrimental to the Applicant. The environment in [Group Home] is too volatile, chaotic and not in the Applicant's best interests.

OTHER RELEVANT CIRCUMSTANCES

94The Board throughout the hearing was witness to numerous difficulties with documentation from the Society and mostly from [Group Home]. Disclosure of relevant file material was not forthcoming it had to be addressed every day of the hearing. The Clinical Director, in her responses to the disclosure requests, appeared evasive. At the very least, the facility is not meeting its obligations on record keeping. This general state of documentation disorganisation reflects poorly on the facility and on its ability to provide care for children in general and the Applicant specifically.

95Similarly but to a lesser degree, the Board found that the Society workers involved in the care of the Applicant lacked organisation in their record keeping which reflects poorly on them meeting their obligations under ministry guidelines.

96These numerous disclosure issues resulted in unnecessary delays in the hearing process which in turn delayed the decision making. Such delays are not in the best interest of the Applicant.

97A second concerning issue arose during the hearing where witnesses were heard discussing testimony while a witness was in the middle of her testimony. When asked by the Board directly, the Society's placement supervisor confirmed he had "coached" [Group Home]'s Clinical Director on how to best present her program to the Board, as she had shared with him having found the first part of her testimony difficult. This practice is obviously inappropriate and also reflects negatively on the credibility of the evidence presented by these two witnesses.

DISCHARGE FROM CURRENT PLACEMENT

98The Board has determined that the placement at [Group Home] is not appropriate for the Applicant. Under the Act, the Board has two options when the placement is not appropriate: to name another placement, when it is satisfied that one is available or to discharge the Applicant from the current placement. In this case, the Society presented no details about any placement options except [Group Home]. Similarly, the OCL did not adduce any evidence of an alternative placement that would be available for the Applicant.

99The Board is also aware of its obligation to consider the least restrictive placement.

100The Board did not hear evidence about specific foster homes but heard evidence that the Society has treatment foster homes that are available in the [Region]. The capacity of these homes to meet the Applicant's special needs must be assessed and in a way that takes into account the Applicant's views and wishes.

101The Board is satisfied that other placements are accessible to the Society for the Applicant. However, the Board will not name a placement because the Society must explore the less intrusive option of treatment foster homes. The Board did not have sufficient evidence about the treatment foster homes to name a specific, available placement that would be in the Applicant's best interests. The Board is therefore discharging the Applicant from her current placement at [Group Home], which means she must leave that placement within 30 days of the order made on October 17, 2014 and go to another Society placement.

CONCLUSION

102The Board finds that continued placement at [Group Home] is not in the Applicant's best interests.

103As stated in the order of October 17, 2014, the Society shall place the Applicant in a treatment foster home with necessary additional services in place to ensure the safety and well-being of the Applicant, including, but not limited to, one-on-one support worker as required and referral an appropriate mental health service such as [Centre] or the [children's health program] for determination and implementation of treatment options. In the process of identifying and selecting the new foster home for the Applicant, the Society will consult the Applicant and inform her legal counsel about the proposed new placement and consider her input in the choice of the new placement.

104The Board will remain seized to monitor the implementation of the order.

CONFIDENTIALITY ORDER

105Pursuant 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.