Applicant v. Society, 2015 CFSRB 05

CHILD AND FAMILY SERVICES REVIEW BOARD

Applicant

v.

Society

REASONS FOR COMPLIANCE DECISION

Date: February 3, 2014

Citation: 2015 CFSRB 05

Related to 2014 CFSRB 58 (Order), 2014 CFSRB 64 (Decision) and 2015 CFSRB 15 (Amended Confidentiality Order)

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

INTRODUCTION

1This is an application for a review of the Applicant’s residential placement under s. 36 of the Child and Family Services Act, R.S.0. 1990, c. C11 as amended (the “Act”) to the Child and Family Services Review Board.

2The Board heard the application, made an Order, now reported at Applicant v. Society (CFSA s.36), 2014 CFSRB 58, (the “Order”) and rendered Reasons For Decision, issued November 13, 2014 to be reported Applicant v. Society (CFSA s.36), 2014 CFSRB (the “Reasons”). The Board stayed seized over implementation for a period of time. The Board now has to determine whether the Society complied with its Order in a manner consistent with its Reasons. The Board will not repeat information from the Reasons in the Compliance decision. For ease of reference, the Reasons and the Compliance decision should be read together.

3The Board ordered the Applicant to be moved, within a month, to a treatment foster home and also made an order about an assessment through [a children’s health program].

4The Applicant was moved to a foster home with an outside paid resource on November 14, 2014.

5The Applicant alleged that the Society had not moved her to a treatment foster home and that the Society had not complied with the order relating to [the children’s health program].

6The Board heard evidence on January 14 and 15, 2015 regarding compliance with the Order. The Board finds that the Society has not complied with the placement aspects of the Order, including with respect to the type of placement and consultation.

7The Board also finds that to date, the Society has complied with the aspect of the Order requiring it to make a referral to [the children’s health program] as an incident of placement.

ANALYSIS

8In terms of compliance, the first issue in this case is whether the foster home that the Applicant was moved to is a treatment foster home. The Board has determined that it is not. The second issue is whether the Society consulted with the Applicant as required by the Order. The Board has decided that the Society did not consult appropriately. The third issue is whether the Society has made the requisite referral to [the children’s health program]. The Board has determined that the referral was made in compliance with the order.

9The contents of the Order are as follows:

1. The Applicant shall be discharged from the residential placement at [group home] within 30 days of the date of this order.

2. 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 to [a children’s health program] for determination and implementation of treatment options.

3. 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.

4. The Board will remain seized for 60 days from the date of this order for implementation purposes.

10The Applicant was moved to [an Agency foster home]. [The Agency] is an outside paid resource that provides supports, including clinical supports, to its foster homes. The Society did not examine or consider available beds within its own roster of treatment foster homes but made a decision that its own foster homes could not meet the Applicant’s needs, without doing any analysis of what was in fact available. The Society turned immediately to outside paid resources looking first at parent led group homes, which is not what the Board ordered. [The Agency] was the first foster care providing option it looked at, although it did consider others.

11The Applicant’s “profile” posed a significant barrier in the search for an appropriate foster home in terms of outside resources. The profile included assessments that referred to information that the Board found in its Reasons to be inaccurate. The Board accepts that the Society did not have the benefit of its analysis of that information when the Order was issued and this affected the Society’s decision-making. We address this concern below.

12The Society ruled out a treatment foster home at another outside paid resource, [Service Provider], because the foster mother was new, untested and was a former ward of the Society. It thought this might cause a “conflict” but when the worker asked the service provider if it thought it would be an issue, it advised that the foster mother had had a positive experience with the Society. No one explored this option with the Applicant or her Counsel. The Applicant’s evidence was that she would be open to this option. This option was in [ ] and closer to the Applicant’s family.

13The Board heard from the Resource Worker, the Resource Supervisor, the new Children’s Services Worker, the Director of [the Agency] and the Foster Mother about the foster home. The Board also heard from the Applicant’s Advocate about privacy and other concerns about the placement that were raised by the Applicant.

14The Society’s evidence was that it chose the foster home because of the Foster Mother’s background and life experience and because [the Agency] as an outside resource could “layer in” supports. These supports include a youth worker at 25 to 40 hours per week and therapy outside of the home.

15The Foster Mother has taken psychology courses for 5 years in another country. She has worked teaching young children and at a day care and has done volunteer work at a community centre in the [city] area, teaching dance and doing individual advocacy for some of the youth. She is not a psychologist in Canada, nor does she have experience, backed by training, specialized parenting or working with young women who are victims of abuse and sexual abuse. She was a foster parent for 4 months before the Applicant came into her care and she had had only one other foster child in her home.

16The Society has a list of “Competencies” that applies to its selection of the three tiers of its foster homes. The three tiers are: Regular Level 1, Specialized-Level 2 and Treatment-Level 3. The Board heard evidence that the Treatment foster homes are experienced foster parents, with additional training and skills. According to the Resource Supervisor, foster parents graduate up to the next level of foster caring, based on a review. Although the Society can provide support to its foster homes, none of the foster homes are defined by the Society’s competencies but rather, by the ability of the foster family to work with the child, the Society and other resources. The competencies rest with the foster parent. The Society and [the Agency] could not dispute that the Foster Mother was not an experienced foster parent; however, it was felt that with her education, experience and the supports offered by [the Agency], she could be considered a Treatment Foster home. The Board disagrees.

17The Foster Mother has little to no experience as a foster parent and no additional training related to youth like the Applicant who have special needs as victims of abuse. The Society’s criteria for treatment foster home refer to “has taken several elective training courses” and “has taken additional training in the community, on topics which are relevant to a specific child or circumstance in their home”. That is not the case for the Foster Mother. She has simply not been a foster parent long enough to have demonstrated the competencies as described in detail in the Society’s own list of standards. As is the practice with Society foster homes, she has not graduated from one level of fostering to the next, based on a review.

18In addition, in her short time as a foster parent to the Applicant, she has made critical errors that belie her ability to achieve the necessary or desired competencies, including the first competency on the Society’s Treatment –Level 3 list which is to: “create a safe environment which is conducive to the care of children and responsive to the identified needs”. When on an outing with the Applicant, the Foster Mother went to speak to some individuals and when the Applicant asked her why she was speaking to them, she said words to the effect that “at least I am not asking them for sex”. In the context of the Applicant’s story (or for any teenaged girl) this was completely inappropriate. Understandably, it made the Applicant feel that it was targeted to her and judgmental; she felt uncomfortable and upset. She does not like the Foster Mother and does not trust her. This comment undermined the relationship building.

19The Foster Mother did not deny making the comment. She explained to the Board that she knew the people and provided a few more details to the Board; she told the Applicant that she was joking. None of the additional context changed the impropriety of the comment. Although witnesses for the Society agreed that this comment was concerning, the Foster Mother was asked to apologize to the Applicant and this was sufficient for the Society and for [the Agency]. The Applicant felt that her apology was “excuses” and she didn’t believe it was genuine.

20The second concerning event was the Foster Mother sharing information about her past abuse by her own mother and allegedly showing her scars to the Applicant. This happened one or two weeks into the placement and again the day before the compliance hearing. The Foster Mother told the Board that she had told the Applicant about her own abuse but that, although she had bruises, she hadn’t shown them to the Applicant. The Board then wonders how the Applicant would know of the marks if she hadn’t seen them or at least been told about them. The Applicant testified that this was not helpful to her. According to the Applicant, this was an attempt by the Foster Mother to get the Applicant to talk to her. It made the Applicant feel sorry for the Foster Mother. The Director of [the Agency] testified that he was not made aware of this second incident but at this point in the relationship between the Applicant and the Foster Mother, this type of sharing of experience would be a concern.

21The Applicant’s Advocate testified that the issues the Applicant has raised with him have to do with her lack of trust with the Foster Mother relating to the monitoring of her cell phone that the Applicant wasn’t initially aware of, internet access and use of the house phone to call her lawyer and advocate and the incidents. The Applicant sees it as helpful to call her lawyer or advocate. The Foster Mother testified she feels that she should talk to her first and suggests she do so to the Applicant.

22In terms of steps to be taken in the placement to foster a positive development of the Applicant's cultural identity, this was an important part of the Board’s decision. Under the Foster Parent Competencies for Treatment Foster Homes, a treatment foster parent: “Respects the primary family’s cultural and spiritual practices and can integrate them into the day-to-day care of the child” and “assists the child to understand and value their cultural and spiritual differences”.

23Asked what practices she provided in her home to address the Applicant's cultural needs, the Foster Mother said she knew a Native Woman and they went to her cultural events and that the Applicant saw her mother. The Applicant is not First Nation’s. She testified that nothing has been done regarding her culture at the foster home, except that she listens to some music.

24The Board noted the Applicant’s desire for exposure to French and tutoring in the Reasons. This was not pursued by [the Agency] or the Foster Mother because they considered tutoring in French wasn’t a priority when the Applicant had other subjects she needed help in and she wasn’t taking French. This misses the point of exposure to French as a language and as part of the Applicant’s past life experience as addressed in the Reasons.

25The foster home does not meet the Society’s own standards to be a treatment foster home. The Foster Mother lacks the experience, the demonstrated ability and has not had the opportunity in her limited time as a foster parent to graduate from level of fostering to another or to be subject to a review process. She has made critical errors that take her outside of meeting more than one of the Society’s own benchmarks.

26The support of [the foster home] is not adequate to make the home a treatment foster home. [The Agency] was not aware of one of the incidents and did not follow up on the other in any meaningful way. The Board heard evidence that what [the Agency] has in place in terms of a youth worker and clinical supports can be “layered in” to a society treatment foster home. This was contemplated by the Board’s original order. An outside paid resource may have much to offer but whether a foster home is a “treatment foster home” will in any given case, depend on the experience and competencies of the foster parent as evidenced by the Society’s own expectations.

27Of note, the Applicant has built a relationship with the youth worker which is a positive aspect of the placement. It appears to be helpful and to involve some coaching while participating in recreation. However, this support alone is not enough to bring the foster home up to the level of a Treatment Foster Home and compliance with the Board’s order. The Society’s own standards are detailed and clear and built around a full time parent who meets the criteria. The Board’s order was that the Applicant be placed in a treatment foster home and that, in addition, she have a one to one youth worker over and above the treatment foster home. The order was not that she be given a part time youth worker, instead of a treatment foster home.

28The Applicant is also doing well in school academically and likes her school. She has a supportive school administrator who does not judge her but provides appropriate consequences, including a suspension. Unfortunately, the administrator is retiring in the near future. If possible, the Applicant would like to remain at her school but she understands that a move to a treatment foster home may mean she has to change schools. While the Foster Mother appears to have a good working relationship with the school, this alone is not enough to render the foster home a treatment foster home. The Foster Mother has been able to work with this support but this has not been assessed over time in combination with the other competencies of a treatment foster home, as per the Society’s practice. The school administrator is clearly a key piece of building positive relationships with the school.

29The foster home is not a treatment foster home and thus the Society has not complied with the Board’s order numbered 2 requiring placement in a treatment foster home.

Consultation

30An integral part of the order was consultation with the Applicant, through her counsel. The order (and the further order below) reflect important provisions in the Act which mandate the Society to consult with youth in care about placement and about decisions that affect their interests. The obligations of a society in terms of considering the child’s views and wishes are set out in section 61 and 2 (2) which provide that:

61(1) This section applies where a child is made a society ward under paragraph 2 of subsection 57 (1) or a Crown ward under paragraph 3 of subsection 57 (1) or under subsection 65.2 (1).

(2) The society having care of a child shall choose a residential placement for the child that,

(e) takes into account the child’s wishes, if they can be reasonably ascertained, and the wishes of any parent who is entitled to access to the child.

2. (2) Service providers shall ensure,

(a) that children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving; and

(b) that decisions affecting the interests and rights of children and their parents are made according to clear, consistent criteria and are subject to procedural safeguards.

31The Applicant provided a wish list about her placements. The worker took her list and did not ask her a lot of questions about it. According to the Applicant’s undisputed evidence, the worker told her it would probably be unlikely they would find a home with the same cultural background and that she would look into a home with a mom and dad.

32The Society did not provide any details about its own foster homes to the Applicant’s counsel and only presented options that involved parent led group care or which were willing to take the Applicant based on her profile. This left two options. The Applicant felt that she really didn’t have a choice. She felt she had to stay at [group home] or go to the [foster home]. She went for visits to the two [Agency ] homes and was not comfortable with the dog in one home: that home was withdrawn as an option because the youth was not leaving and there was no bed. The Applicant was then left with the Board’s deadline and only one option. After her overnight trial visit to the foster home, she told her worker she didn’t like it. Her worker asked her to be more specific.

33The Applicant wrote a letter outlining her concerns about the foster home to the Society. Her Children’s Services worker was aware of the letter which she got just prior to taking the Applicant to her placement, but never read. The Resource Supervisor was aware of the letter but told the Board that this was for the Children’s Services Worker to read. Thus, it appears that no one in a decision making role saw or considered the Applicant’s objections. The failure to canvass internal options and the [Service Provider’s foster home] option with the Applicant and the failure by the Applicant’s own worker to read her letter, is not indicative of hearing or considering the Applicant’s views and wishes. This process fell far short of the type of genuine communication and consultation at all stages expected by the Board. For the sake of future clarity, the Board outlines the consultative steps to be taken in future in its additional order.

34The Board did not receive a request for an extension from either party, which could have allowed for further consultation.

35The Society has not complied with the Board’s order numbered 3 regarding consultation with the Applicant.

[Children’s Health Program]

36As part of placement, the Board ordered that the Society make a referral to [children’s health program] for determination and implementation of treatment options for the Applicant. The Society has made a referral as required, has attended meetings and a case conference and is awaiting the treatment recommendations and assessment from [children’s health program]. The Applicant is cooperating with the [children’s health program] process. The Board appreciates that its order referred to [the children’s health program] implementing the treatment recommendations and understands from the evidence that [the children’s health program] may not be the ultimate service provider. The key will be whether the Society ensures that the treatment recommendations of [the children’s health program] are implemented and integrated into the Applicant’s placement.

37The Society has complied with the part of order numbered 2 that relates to a referral for [the children’s health program] up to this point in time.

ORDERS

38With respect to placement, the Board makes the following orders in addition to its existing orders, to ensure compliance.

The Society shall:

1Unless the Applicant consents otherwise, locate a home that meets its own criteria for a treatment foster home based on the qualifications and experience of the parent(s) in the home and not of the outside resource.

2Provide the Applicant’s Counsel with a list with a brief description of all internal treatment foster homes with beds for females currently available and allow the OCL to talk to any of the foster parents.

3The Society shall then provide a copy of a revised profile of the Applicant to those treatment foster homes identified by Applicant’s Counsel as warranting further consideration.

4The Society shall also approach the [Service Provider] foster home to see if it is still available. The Society will provide the contact information regarding this foster home to Applicant’s Counsel.

5The Society shall also send a revised profile to the outside paid resources that it had previously approached and open up discussions with them about placement. It shall provide information about its contact, to the Applicant’s Counsel.

6The revised profile shall contain a one page summary about the Applicant consistent with the Board’s reasons for decision and shall not contain any assessments reports or references to facts found by the Board to be inaccurate. The profile will explain that the child has been referred to [children’s health program] for a treatment plan. The Applicant’s counsel shall approve the new profile.

7Once all available beds have been identified, the parties shall meet, with Counsel and if the Applicant wishes, her Advocate, so that the Applicant can be heard, in person. The Applicant will then have five days to put her thoughts in writing and share them with the Society, if she wishes. The Society shall consider the Applicant’s views and wishes and will prepare a letter explaining its final decision with reference to what factors it considered and what weight it gave to the Applicant’s views and wishes.

8The Board shall remain seized until further notice.

REVISED CONFIDENTIALITY ORDER

39Pursuant 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. The Society shall be permitted to share the Board’s Order, its Reasons For Decision and its Compliance decision in this matter with [the children’s health program] and with the upcoming foster home and if applicable, the upcoming foster home provider.

SHEENA SCOTT

_____________________

Sheena Scott

Presiding Member

NATHALIE FORTIER

_____________________

Nathalie Fortier

Vice-Chair