J. C. v. Children’s Aid Society of Niagara Region, 2016 CFSRB 27

CHILD AND FAMILY SERVICES REVIEW BOARD

J. C.

v.

CHILDREN’S AID SOCIETY OF NIAGARA REGION

REASONS FOR DECISION

Date: July 12, 2016

Citation: 2016 CFSRB 27

Indexed as: J. C. v. Children’s Aid Society of Niagara Region (CFSA s.68)

INTRODUCTION

1J. C. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) pursuant to subsection 68.1(4) 4 and 5 of the Child and Family Services Act, R.S.O. 1990, c.C.11, as amended (the “Act”), against the Children’s Aid Society of Niagara Region (the “Society”) on January 27, 2016.

2The Application consisted of the following complaints under s.68.1 (4) 4 and 5 of the Act, as summarized in the Pre-Hearing Report dated March 31, 2016.

That the Society has not heard the Applicant’s service concerns or heard him when decisions were made and has not provided him with reasons for decisions that affected his interests, regarding the following:

1. Failure of the Society to respond to the Applicant’s initial report of concern in July 2015;

2. Conduct of the investigation of the Applicant’s August 2015 report of concerns regarding the abuse of his son by the mother; including timeliness of interviews with the child and various witnesses;

3. Conduct of the protection workers during the investigation; including timeliness of contact with the Applicant, failure to contact witnesses, failure to consider contradictory medical information and failure to consider evidence of abuse provided by the Applicant;

4. Failure to provided services for the family;

5. Treating the Applicant unfairly because he is a custodial father rather than a mother.

3The Board must decide whether or not the Applicant’s concerns were heard by the Society and whether or not the Society gave the Applicant reasons for its decisions. The hearing on the merits was held on February 2, February 25 and June 21 2016. The Board heard testimony from the Applicant and from a Society family services worker (the “worker”) and supervisor at the hearing.

4For the reasons set out below the Board finds that the Society did hear the Applicant’s concerns as required by section 2(2)a of the Act, and that the Society did provide him with reasons for the decisions made in response to those concerns as required by section 68.1(4) 5 of the Act.

BACKGROUND

5The Applicant is the father of [ ] (the “Child”; DOB: [ ]). The Child resides in the home of the Applicant and the Child’s stepmother. The Child was placed in the sole custody of the Applicant by decision of the court on November 21, 2014. The Child’s mother was granted access to the Child on a twice weekly basis and alternating weekends under this order.

6The application to the Board relates to the Society’s most recent involvement with the Applicant with respect to a joint child abuse investigation by the Society and local police. The joint investigation was undertaken as the result of the Applicant’s initial allegation reported to the Society in July 2015 and subsequent additional allegations that the Child’s mother had engaged in physical and sexual abuse of the Child.

7The Board must decide whether or not the Applicant’s concerns were heard by the Society and whether or not the Society gave the Applicant reasons for its decisions. The hearing on the merits was held on June 23 and 24, 2016. The Board heard testimony from the Applicant and from a Society child protection worker (the “worker”) at the hearing.

ANALYSIS

8The relevant provisions of the Act are as follows:

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;

68.1(1) If a complaint in respect of a service sought or received from a society relates to a matter described in subsection (4), the person who sought or received the service may,

(a) decide not to make the complaint to the society under section 68 and make the complaint directly to the Board under this section;

68.1(4) The following matters may be reviewed by the Board under this section:

1. Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 68(1) as required under subsection 68(2).

2. Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation.

3. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.

4. Allegations that the society has failed to comply with clause 2 (2) (a).

5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

6. Such other matters as may be prescribed.

68.1(5) Upon receipt of a complaint under this section, the Board shall conduct a review of the matter.

68.1(7) After reviewing the complaint, the Board may,

(a) order the society to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation;

(b) order the society to provide a response to the complainant within a period specified by the Board;

(c) order the society to comply with the complaint review procedure established by regulation or with any other requirements under this Act;

(d) order the society to provide written reasons for a decision to a complainant;

(e) dismiss the complaint; or

(f) make such other order as may be prescribed.

9In P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 33 at paragraphs 13-14, the Board described the purpose of s.68.1(4) and (5) as follows:

The obligations under s. 68.1(4)4 and 5 reflect the importance of active participation for parents, providing them with the opportunity to have some degree of influence in the process. This is facilitated through genuine communication, giving applicants the opportunity to have input into decision making and to have enough information to make informed responses to, or accept decisions.

To be heard involves active listening, discussions, the society’s taking steps to address the Applicant’s concerns and communicating this to her so that she feels that her concerns are taken seriously and dealt with thoroughly.

10To meet the statutory obligation reasons must be timely and detailed and the Applicant must be given sufficient information to understand what factors were considered in making a decision and why.

11The Board examined in detail the issues identified in the Pre-Hearing Report, as follows.

Issue 1: Failure of the Society to respond to the Applicant’s initial report of concern in July 2015

12The Applicant testified that he phoned the Society on July 27, 2015 and described his concerns about the Child and his behavior to an intake worker. In his testimony, he stated that given the appearance of the Child’s penis and his behavior, the Child’s step-grandmother thought the signs and symptoms suggested sexual abuse. He stated that the intake worker said she would take notes and someone from the Society would be back in touch with him within 48 hours. He also stated that he was looking for some guidance from the Society at the time. He did not receive a call back.

13The call was documented and a review of the Service Casenote made by the intake worker on the same date does not reference sexual abuse per se. The note indicates that the caller reported having taken the Child to the hospital after a return visit with his mother because his penis was swollen and infected in appearance which may have been the result of irritation due to the fact that the Child was not circumcised. It was also noted that the caller reported that the Child was observed to be making masturbatory gestures while on the toilet which the caller took to be atypical for a child his age. There is not an explicit statement that the Applicant made about possible sexual abuse or suggestive of sexual abuse. Nor is there any mention of a call back to be made to the Applicant with 48 hours.

14The Society worker testified that when calls such as the one described are received, one of the first things that is done is to code the concern reported using the Ontario Child Welfare Eligibility Spectrum (the “Spectrum”). The Spectrum is a tool designed to assist Society staff to make decisions about eligibility of service at the time of referral. The worker stated that the concerns reported did not meet the threshold for intervention when reviewed against criteria outlined in the Spectrum. Therefore, no action would be taken.

15The Society acknowledged that the Applicant did not get a call back and that there was no concern that the Child was in imminent danger at that time. It further acknowledged that the Applicant should have received a written response summarizing the Society’s decision with reference to the Spectrum given his concerns as the custodial parent of the Child.

Issue 2: Conduct of the investigation of the Applicant’s August 2015 report of concerns regarding the abuse of his son by the mother; including timeliness of interviews with the child and various witnesses, and

Issue 3: Conduct of the protection workers during the investigation; including timeliness of contact with the Applicant, failure to contact witnesses, failure to consider contradictory medical information and failure to consider evidence of abuse provided by the Applicant

16The Applicant testified that he contacted the Society again in August and reported that the Child had returned home from a weekend visit with his mother dirty, with unbrushed teeth and a bruise. He stated the worker called him back and asked to set up an interview with the Child on August 28, 2015. The Child was interviewed and the Applicant gave the worker a letter from the Child’s day care provider in which she noted the bruise. He also stated that he gave the worker a photo of the bruise on the same date.

17The Applicant stated that the worker called him to set up a meeting sometime before September 10, 2015 for the purpose of having the local police investigate his allegations. The steps in the investigation process were not explained to him and no outcome was reported to him. He contacted the worker in October and November and was informed by the worker that the investigation was still going on. During the November call he reported that he was told that the investigation now included new allegations in September of alleged sexual abuse as well as the allegations made in August.

18The worker testified that the Applicant made the allegation about the Child being dirty and bruises on his arm and leg on August 25, 2015. The worker contacted the local police to report this allegation. She explained that the Society has a special unit that works jointly with the police to investigate allegations of physical and sexual abuse. She was advised by the police to conduct an exploratory interview with the Child and did so on August 28, 2015. She confirmed that the Applicant gave her the note from the day care provider on that date. She also noted that the Applicant informed her on the same date that he would not be permitting the Child’s mother to have access until the investigation was completed. The Child disclosed information in this interview that conflicted with the information already reported.

19As a result and following discussions with the police, the police notified the worker on September 9, 2015 that it planned to conduct another interview with the Child. The Applicant was informed of this on the same date. The Child was interviewed by the police on September 10. 2015 and disclosed that his mother had squeezed his arm using a pinching motion.

20The Child’s mother was interviewed on September 11, 2015. She denied the allegation and suggested that the Applicant was coaching the Child. The Society also contacted the maternal grandmother at her request. She reported that she had never seen any bruises/injuries on the Child. The Child’s mother had been living with the maternal grandmother at the time of the investigation. She had no concerns regarding physical discipline by the Child’s mother.

21Before the investigation of this matter could be finalized, the Society received another referral. On September 24, 2015, a community urgent care centre reported that the Child had been brought to the centre by the Applicant after a visit with his mother and his penis was red and swollen to almost twice the normal size. The Child had told the Applicant that “mommy touch it”. The Child made no other disclosures at that time.

22A worker (“new worker”) covering for the worker who testified phoned the Applicant the next day, September 25, 2015, to inform him that the Society had received this report and both the worker assigned to the open investigation file as well as the detective were on vacation. The Applicant stated to this new worker that he would not be permitting any access with the Child’s mother until he could follow up with the assigned worker.

23The worker advised the detective of these new allegations and spoke with the Applicant on September 29, 2015 upon her return from vacation. The Applicant informed her on that date that he had reported an allegation of sexual abuse in July and nothing had been done about it. This is the subject of issue 1.

24The Child was interviewed by the detective on September 30, 2015. He did not make any disclosures of sexual touching by his mother. The Applicant informed the detective that he would not be providing access until the matter was resolved. Meanwhile, the Society was receiving calls from family members and the mother in support of either the Applicant or the mother.

25On November 9, 2015 the Applicant met with the worker and raised a number of concerns, namely why the daycare provider had not yet been contacted and why the worker was calling estranged family members. He also informed her that the detective had informed him that the investigation was complete. On November 13, 2015, the worker followed up and advised the Applicant that the investigation was not concluded. On December 3, 2015, she spoke with the daycare provider who stated that she had no information to support that the Child’s mother had caused harm.

26The worker provided medical documents to a medical doctor on December 3, 2015 for his review. The doctor advised that the Child had a common medical condition as a result of having an uncircumcised penis. The worker informed the Applicant on December 7, 2015 that there was no medical evidence of sexual abuse. She followed up with the doctor on the same day to further discuss his opinion and was informed that the Child was prescribed antibiotics because of an infection, a common occurrence in males who are uncircumcised. He confirmed that there was no physical evidence of sexual abuse. She shared this information with the Applicant in a return call on the same day. She also shared with him that the nurse from the urgent care centre had indicated that the Child had not made any disclosure of abuse.

27The worker met with the Applicant, the stepmother and the Child on December 10, 2015. During a private interview with the Child, he told her that his mother had squeezed his arm and his penis because she was mad. She advised the Applicant of this and he informed her that he was not going to allow access by the mother. She reported this information to the assigned detective.

28The worker spoke with a number of individuals (some of them because they called the Society) including the Applicant, the Child’s step-mother, the Child’s mother, both grandmothers and the step grandmother, the Applicant’s brother, the day care provider and medical professionals during the period of time leading up to this application.

29The worker’s testimony on the incidents reported to the Society in August and September was detailed and consistent with the Applicant’s testimony. All of the contacts referred to by the worker were supported by case notes made by her and submitted into evidence.

30The testimony and records of the worker provide a detailed picture of the ongoing activities of the Society in response to concerns raised by the Applicant and the reasons for the actions taken. The allegations were serious ones and involved the efforts of both the police and the Society. There was also a history of conflict between the Applicant and the Child’s mother and several individuals communicated with the Society in support of one parent or the other. Throughout the period that the allegations were made in August until the submission of the application to the Board, the Child was in the care of the Applicant with limited access to the mother. The Society believed that the child was not in need of protection given that the Applicant had custody of him and the allegations that led to the investigation were not about his care of the Child. During the same period, the Applicant was either withholding access or seeking a change in the access order as a means to ensure protection of the Child.

31As of January 27, 2016, the investigation was still open. The situation as reported by the Society was complex and fluid and required thorough exploration. The Society acknowledged that it did not meet the timelines for concluding the investigation but considered those timelines as guidelines in such a fluid situation. The Society acknowledged and apologized during the course of the proceeding for the fact that it may not have provided at the outset a detailed overview of the process involved. However, it believed that the evidence supported its position that it responded to concerns as the Applicant raised them.

32Standard #7 of the Child Protection Standards in Ontario makes reference to the timelines for the completion of child protection investigations. The general rule is that an investigation be completed within one month of receipt of the referral and extended another month if it cannot be completed within a month. In addition, the standard requires that the person alleged to have caused the need for protection is provided verbal and written notice within 14 days following completion of the investigation. The standards are silent on notification of the outcome of an investigation being given to a custodial parent who makes allegations against a non-custodial parent such as in this case.

33Given this timetable and an ideal situation, the investigation into the allegations made on September 24, 2015 should have been completed by the end of November and the Child’s mother informed in writing by mid-December.

34The Applicant expressed his deep concern and anxiety stemming from the experiences with the Child and the resulting investigation process. It was also clear that he had expectations about the process and the outcome that may not have been consistent with the role and practices of the Society. His anxiety may have been minimized in the situation if he had been given a clear, detailed overview of the steps in the process at the outset of the investigation and a clear description of the Society’s mandate and role in such a case as his along with reasons why the process was so protracted.

Issue 4: Failure to provided services for the family, and;

Issue 5: Treating the Applicant unfairly because he is a custodial father rather than a mother.

35The Applicant testified that he never asked the Society for services nor did he have discussions with them regarding the provision of services. He stated that counseling for the Child may have been needed and he and the stepmother ultimately pursued it on their own.

36He also testified that the Society took more time with the Child’s mother and her support people when the investigation started and cited this as an example of alleged unfair or biased treatment. He testified that he expressed his view on the matter to the worker on November 8, 2015 and stated that the worker had knowledge that the mother was “lobbying” against him. Furthermore, he believed that the worker had given the mother her cell phone number.

37The worker testified that the Society had offered and provided access support services to the Applicant when requested. She also stated that if the outcome of the investigation into sexual abuse were verified, the Society might refer the family for appropriate services. She confirmed that the Applicant did not communicate a need for services and it did not have concerns about the care the child was receiving from the Applicant.

38With regard to the perception of bias, the worker testified that at different points during the investigation process, she would have spent more time gathering information from the mother and sources of information about her given that the allegations were about her. However, the record of contacts made and recorded in case notes make it clear that there were significant contacts with the Applicant to obtain and share information over the course of the investigation. The worker stated that she considered all of the information that the Applicant provided including the photo of the Child’s bruise, the letter from the day care provider and his statements. This was not all of the information that had to be considered and weighed. She clarified that she gave the Child’s mother her business phone number because she had had difficulty connecting with her during the investigation. She stated that she would have done the same for the Applicant had there been similar difficulties contacting him.

39The Board dismisses this part of the Application given that there had not been any request for or refusal of services by the Society. With regard to the Applicant’s perception of bias, the Society explained its actions to the Applicant regarding contact with the Child’s mother in person, e.g., on November 8, 2015 and during this proceeding.

CONCLUSION

40The Board concludes that the Society met its obligation to hear the Applicant’s concerns when he raised them and provided reasons for its actions when requested at the time or during this proceeding with regard to issues 1, 2 and 3. However, the Society acknowledged that the Applicant should have been given its decision in writing with regard to issue 1 and an overview explanation of the steps to the investigation process related to issues 2 and 3 at the outset of the investigation. Therefore, the Board orders the Society to provide the following in writing to the Applicant within 30 days of the receipt of this decision:

1. A summary of the Society’s decision and its reasons for the decision with regard to the matter under complaint with respect to issue 1; the written summary should include reference to the Spectrum given the Applicant’s concerns as the custodial parent of the Child; and,

2. A summary of the steps in a child protection investigation process with regard to allegations such as those made in August and September 2015 including reference to the Spectrum where appropriate and the Standards and detailed reasons why the process had not yet concluded by January 27, 2016, the date of the application to the Board.

CONFIDENTIALITY ORDER

41Pursuant 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.

GAIL GONDA

_____________________

Gail Gonda

Board Member