Applicant v. Society, 2015 CFSRB 35

CHILD AND FAMILY SERVICES REVIEW BOARD

Applicant

v.

Society

REASONS FOR DECISION

Date: August 14, 2015

Citation: 2015 CFSRB 35

Related to: 2015 CFSRB 27, 2015 CFSRB 32 and 2015 CFSRB 33, 2015 CFSRB33

Indexed as: Applicant v. Society (CFSA s.36)

INTRODUCTION

1The Applicant, [ ] (the “Applicant”) filed an application under section 36 of the Child and Family Services Act (the “Act”) , RSO 1990, c.C.11, as amended, to the Child and Family Services Review Board (the “Board”) on June 5, 2015 for a review of her placement at [Facility] and a determination of where she should be placed.

2The Applicant brought her application because she had her placement reviewed by the Residential Placement Advisory Committee of [Region] (RPAC) on April 30, 2015. She was not happy with the RPAC recommendation that she remain at [Facility], where she was placed by [ ](the “Society”).

3This Application was heard by the Board on June 9, 17 and 29 and July 20, 2015. 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 less restrictive placement such as a group home or a youth shelter was appropriate. Also, at issue were the complaints by the Applicant about the [Facility] related to food, noise levels in the residence and that the other residents were sometimes loud and rude.

4The Applicant’s position was that she wanted to be moved from [Facility]. The Applicant felt that she had made great strides at the current placement and was ready to move. Her first choice was to go home and her second choice was to go to a group home or youth shelter.

5The Board advised the parties that the Board has no authority to decide whether the Applicant can return home.

6The Society’s position was that although the Applicant had stabilized, she needs the current placement at [Facility] to provide continuity in her care and to allow time to complete the program related to the family to ensure that the Applicant has a successful transition home.

7The Board confirms the Applicant’s placement at [the Facility]. The reasons for this decision are set out below. This decision should be read with the two Interim decisions regarding Youth Criminal Justice Act records and an order for production of clinical consulting notes from a witness found at: Applicant v. Society (CFSA s.36), 2015 CFSRB 33; 2015 CFSRB 27 and 2015 CFSRB 32.

BACKGROUND

8The Applicant will be [age] on [ ]. She likes to write lyrics, to play music and to “rap”. She also enjoys walking and hiking, speaking in French and writing. Her artistic expression is one of her strengths that she is most proud of.

9She came into the care of the Society on November 11, 2014 pursuant to a Temporary Care Agreement after an assault on her mother in which charges were laid. There is a youth court “order to reside” dated June 18, 2015.

10On November 11, 2014, the Applicant was placed at a group home operated by [Agency] in [City 1]. She went missing from this home on several occasions between December 16, 2014 and January 14, 2015 and incurred several charges during those absences. During this time frame, she spent time in [Youth Centre] and [Secure Detention Facility]. She also was a resident at [a Youth Shelter] in [City 2]. The Applicant had participated in psychiatric and psychological assessments as part of the youth court proceedings.

11Prior to the Temporary Care Agreement, the Applicant resided at home with her mother, her father, her older sister and her older brother. From December 2013 to November 2014, the family was receiving services from the Society. The Applicant had difficulties within the home and at school which were precipitated by mental health and behavioural concerns. For a period of time, she was residing part time at the [Shelter] in [City 3] with mental health supports from the [Facility]. Incidents of self-harm and suicide ideation led to an admission to the Child and Adolescent In Patient Unit at [Hospital] in May, 2014. That same month, [Shelter] would no longer accept the Applicant in their program due to their inability to manage the Applicant’s threatening behaviour.

12The Applicant returned home and continued to present with unsafe, challenging behaviours. She changed her appearance, spoke of participating in a gang culture, refused to attend medical appointments, and secluded herself in the home. Of importance is that the education system could not provide an appropriate academic setting during this time due to the Applicant’s mental health and behavioural needs. The Applicant’s father was frequently absent from the home due to the requirements of his job and the mother became less able to manage her daughter’s unsafe behaviours on her own. This resulted in the incidents that led to placement outside of the home in November 2014.

13The Society placed the Applicant at [Facility] on February 5, 2015. The Society’s considerations in making this placement decision included: the Applicant was requesting a placement change at that time; the Applicant had already been accepted and had toured the [ ] school program at [the Facility]; the residence was in close proximity to the family so that the father’s work schedule could be more easily accommodated; the mother was not willing to have her daughter return home; [Facility] had a family based model of support and intervention; and, [Facility] was able to provide the medical and mental health supports as identified in the court ordered assessments. Furthermore, the Society had made inquiries into other placement options and according to the Society, there was no other alternative that met the considerations listed above.

14The Applicant requested a review of her placement by the RPAC. The RPAC meeting was held on April 30, 2105 and they confirmed her placement at [Facility]. The committee cited the Applicant’s progress to date and that family work was about to commence at the time of the RPAC review as the reasons for its decision.

15The Applicant did not agree with this decision as she felt that she had made sufficient progress in the [Facility] program and was ready to move to a less restrictive placement such as a group home or shelter. She also stated her complaints related to food, noise levels and interactions with peers as reasons for a placement change. The Applicant worked with the Office of the Provincial Child and Youth Advocate in trying to get her placement changed, first through the RPAC and then by bringing an application to the Board on June 5, 2015.

PRELIMINARY MATTERS

16The Applicant’s Counsel raised the fact that the Applicant did not have independent legal advice or advice from an Advocate when signing the Temporary Care Agreement. This goes to the Applicant’s “in care” status and not to her placement. The Board will not look into the Applicant’s status. The Board’s authority is over placement.

17We also note that a [Facility] representative sat on the RPAC committee which was reviewing the Applicant’s placement at [Facility]. The Board is making a fresh determination of the Applicant’s interest and is not bound to give any weight to the RPAC recommendation. However, when the RPAC committee includes a representative from the placement under review, the Board will not give any weight to what cannot be seen as an objective RPAC.

ANALYSIS

18Under 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 “for a determination of where she should remain or be placed” if the child has already had an advisory committee review (RPAC) and is dissatisfied with the committee’s recommendation. The Board must conduct a review and having done so, may:

36 (6)

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

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

(c) confirm the existing placement.

19According to section 1(1), the most important purpose of the Act is to “promote the best interests, protection and well-being of children”. Section 36 does not come within a section of the Act that defines “best interests”. While the Board is determining placement on a fresh (de novo) basis and not reviewing the RPAC decision, the Board took guidance from the factors that the RPAC is mandated to consider in section 34 (10) of the Act.

20In terms of which best interest factors were relevant, the Board also took guidance from the definitions contained in the Act relating to child protection and adoption placement [s.37(3);s.136 (2)]. The Board took into account the following relevant considerations based on the sections noted above, which are also consistent with the case law about “best interests”:

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

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

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

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

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

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

21With 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.

22The onus is on the Society to show that the current placement at [Facility] is in the Applicant’s best interests, on the balance of probabilities. After hearing the evidence, the Board was satisfied that placement at [Facility] was in the Applicant’s best interests.

The Needs of the Applicant

23The clinical evidence indicates that the Applicant has significant emotional, behavioural and mental health needs that demand a placement that can provide ongoing medical and psychiatric assessment and treatment within a protected therapeutic milieu. The court ordered assessments conclude: “a working diagnosis of early signs of an emerging psychotic diagnosis”. The reports also refer to diagnoses of oppositional defiant disorder and conduct disorder with paranoid delusions, psychotic symptoms and disorganized behaviour. Reports indicate a Mild Intellectual Disability. The recent Follow Up Note from the Consulting Psychiatrist at [Facility] (June 2015), concurs that the Applicant is most likely demonstrating signs of Prodromal Psychotic Disorder. The family history of a psychiatric disorder may predispose the Applicant to a similar disposition. The reports provided to the Board conclude that the Applicant needs to be under the care of a psychiatrist to monitor her progress on medication; that further educational assessment and planning are required; that continued assessment, treatment planning and intervention is required with a coordination of goals between professionals working with the Applicant; and that a focus on family involvement is critical.

24The nature and progression of the behavioural and mental health concerns that necessitated admission to the [Facility] are noteworthy. The Applicant demonstrated very disturbing behaviour that led to the mother and the two siblings feeling unsafe when the Applicant is the home. The older sister indicated that she would leave the home if the Applicant returns. The episodes that led to the feelings of lack of safety for family members were life threatening. The Applicant also placed herself in unsafe circumstances with limited insight into the potential dangerousness. She demonstrated bizarre ideation, delusional thinking and unusual somatic complaints.

25The severity of the psychiatric concerns indicates the current need for a residential program with a treatment focus that provides the appropriate safeguards for the wellbeing of the Applicant and her family.

The Appropriateness of the Placement

26The evidence provided by all parties is that the Applicant has demonstrated tremendous progress and stabilization since her admission to [Facility]. She is compliant in the taking of her medication. She is actively engaged in the school program. She enjoys her participation in the music therapy program. She demonstrates no resistance to participating in assessment processes. She is learning coping strategies for her interaction with staff and her peers. She is gaining insight into familial relationships, can put words to her feelings and she is developing pro social skills. There are no signs of thoughts of self-harm, suicidal ideation or threats of aggression. She appears to have developed confidence and self-worth.

27The program opportunities provided at [Facility] are multi-disciplinary and multi modal in nature. Programs can be tailor made to accommodate the Applicant’s complex and unique needs. A one-to-one staff was provided to assist the Applicant in settling into the program. It offered her time away from the group of peers without isolation. An individualized approach was also offered regarding outings and social events. A nurse therapist is available to assist the Applicant with somatic complaints and medication needs. Child and youth workers, clinical social workers, occupational therapists and consulting psychologists, pediatricians and psychiatrists are available to meet the specific needs of the Applicant as identified by herself and the multi-disciplinary team. The Applicant engages with a music therapist which again addresses some of her unique needs in a non-traditional modality. She also participates in the [program] that facilitates artistic expression.

28The core components of the [Facility] as described by the Program Supervisor are: 1. Dialectical Behaviour Therapy which is introduced to assist young people with understanding and managing emotions through mindfulness and stress tolerance approaches. 2. The Family Preservation Model and 3. A Strength Based Approach to assessment and treatment.

29The Applicant was gradually integrated into the school program. Initially this was challenging for her but with the presence of a child and youth worker to support her, she made important gains. She was fully involved and demonstrating success in the school program by the spring.

Relationship with the Family

30The family component of the [Facility] has been a primary focus from the point of admission for the Applicant. It has been the expressed wish of the Applicant to be reunited with her family and her primary goal is to return to the family home.

31The family program offers multiple opportunities for a gradual integration of the Applicant back into [the] family home while paying attention to the individual needs of each family member. Regular phone calls to both parents are facilitated. The mother visits at [Facility] weekly and spends time with her daughter in a supportive, safe environment. This graduated approach to re integration soothes the mothers worries about the safety of herself and her other children in the home. The parents and the Applicant are given strategies to cope with day to day interactions and problem solving. The Applicant has the opportunity first for day visits and then weekend visits in the home with the availability of [Facility’s] staff for support and guidance as required.

32Dyadic counselling is provided to the mother and daughter and was the central component of family therapy at the time of the Board hearing. The siblings and the father will be engaged in counselling as well as part of the progressive approach to family reintegration. There is the opportunity for a 5 day program in which the Applicant will return home for weekends. This is part of the treatment plan. The parents and the staff at [Facility] observed positive changes in the familial relationships and the Applicants ability to express herself more effectively with her mother.

33Both parents expressed their wishes that their daughter not return home until she had completed the [Facility’s program]. They were each committed to the family work component of the program.

Continuity of Care

34The Society gave evidence that moving the Applicant to another placement at this time would interrupt the continuity of care. The Applicant has developed trusting relationships within the therapeutic milieu and an interruption of these attachments would be premature and may result in unnecessary regression in terms of the Applicant’s progress to date. The Applicant appeared to be thriving which can be attributed to the meaningful relations established and nurtured at the [Facility].

35The Board also heard evidence about the importance of continuing the school program at the [Facility] because it offers the full range of resources and therapeutic supports necessary for the Applicant’s success.

36The Board also heard evidence from all parties that the continuation of the full range of family supports provided by [Facility] was required at this time to ensure a successful reintegration of the Applicant into the family home. The parents stressed the significance of the continuation of this program component and were fearful that any interruption would affect the progress made to date.

Less Restrictive Option

37The Applicant’s wish was to be placed in a less restrictive environment such as a group home or shelter.

38The Board heard evidence from both parties that the Applicant had resided in two shelters in the past year. Neither shelter programs were able to provide her with the supports or resources needed to keep her safe from self-harming behaviours. Also, [the Shelter] had expelled the Applicant from the program due to her threatening and aggressive behaviours towards staff.

39The Society gave evidence that there was no other group care facility available in the local geographic area that could accommodate the needs of the Applicant and her family. The residential program would need to be local to facilitate the involvement of the family. The Resource Worker indicated that there was a lack of appropriate resources available in the local geographic area. There is no local program that offers psychiatric consultation, a family based model and a therapeutic day program. The Society also indicated that the severity of mental health concerns presented by the Applicant could not be accommodated by a foster care provider at this time. The commitment of the family necessitates a family treatment component that is integrated into all the components of an overall treatment plan. This is not available in any other resource in the local geographic area.

40The Board heard evidence that there wasn’t the ability to build an individualized program for the Applicant that would contain the necessary components of a treatment plan when she returns home. The Society and staff from the [Facility] indicated that there would be limited resources available to the family once the Applicant is fully integrated into her family home

41The Board determined based on the evidence that there is not an appropriate placement available to the Applicant that is less restrictive than the current placement that would meet the Applicant’s needs including her family-related therapeutic needs.

The Applicant’s Wishes and Views

42The Applicant had a number of complaints about the current placement which include the nature and choice of food provided, the noisiness of the residential setting and the loud and rude behaviour of the other residents.

43The Board acknowledges that the three complaints described by the Applicant would exist in both a shelter and a group home environment. Unfortunately, it is the nature of group settings.

44The Society provided evidence that [Facility] took action to mitigate these concerns. In terms of food and food preparation, the Applicant is able to bring in her own groceries, place them in a secure part of the storage or refrigerator area and with assistance make her own alternative meals or make suggestions to the cooking staff about her preferences. With regard to the noise level, the Applicant is being given increasingly more autonomy to leave the communal space and go outside “around the building”. With regard to interactions with peers, a one-to-one staff supports the Applicant in being apart from the disturbing interactions and also in providing skills to understand and manage her emotions and tolerate the stress created by these interactions.

45The Board has determined that the Applicant’s complaints are not serious enough to warrant removal from the current placement. Also, [the Facility] took adequate steps to mitigate the Applicant’s complaints.

46The Applicant expressed that she had made sufficient progress while at the [Facility] to justify a move to a less restrictive placement.

47The Board determined that the severity of the mental health concerns presented by the Applicant and the lack of availability of appropriate resources precluded a move to an alternate placement.

48These reasons are substantive and serious enough for the Board not to abide by the Applicant’s wishes and views at this time.

CONCLUSIONS

49The Board confirms the placement of the Applicant at [the Facility].

50The Board recommends the following:

1. That the Applicant completes the program at [Facility] with particular attention to the family treatment component and the school program.

2. That the Society, [the Facility] and the Ministry of Education ensure the completion of an educational assessment that will inform and guide the Applicants education plan both while attending the [Facility] school program and any community based educational program that the Applicant attends in the future.

3. That the Society considers a step down program when considering the Applicants transition home such as a treatment foster home. This resource should be able to assist the family in skill development as parents.

4. That specialized training and resources be provided to the parents to prepare them for the long term psychiatric needs of their daughter.

These are recommendations and not part of the Board’s order. However, they are consistent with the goals and evidence presented to the Board.

CONFIDENTIALITY ORDER

51Pursuant 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, except with an order of the Court or the Board, as appropriate.

SHEENA SCOTT _______________________

Sheena Scott

Presiding Member