SB v. Children’s Aid Society of Hamilton, 2019 CFSRB 72

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

SB Applicant

-and-

Children’s Aid Society of Hamilton Respondent

DECISION

Adjudicator: Michele O’Connor Date: November 05, 2019 Citation: 2019 CFSRB 72 Indexed As: SB v Children’s Aid Society of Hamilton (CYFSA s.120)

APPEARANCES

SB, Applicant Self-represented

Children’s Aid Society of Hamilton, Respondent Mr James Wood, Counsel

Introduction

1S.B. (“the Applicant”) filed an application against the Children’s Aid Society of Hamilton (“the Respondent”) on May 23, 2019 under section 120(4)4 and 5 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1, (the Act)

2A Pre-Hearing was held on July 30, 2019, in which it was determined that there would be a hearing with respect to the Applicant’s allegation that the Respondent has not heard her service concerns or heard her when decisions were made and has not provided her with reasons for decisions that affected her interests regarding the care she received while in Society care for the period February 2010 to May 2011.

3The Child and Family Services Review Board (“CFSRB”) must decide whether the Society met its obligations regarding both aspects of the Applicant’s complaint

4The hearing was held on October 23, 2019. I heard evidence from MB, the Applicant’s father, and from the Applicant on her own behalf, and from GB, the Children’s Services Worker “(the worker”), on behalf of the Society. Documentary evidence was filed by the Applicant.

5For the following reasons, the CFSRB finds that the Society did hear the Applicant’s concerns about food and routines in the foster home. However, it did not investigate or allow the Applicant to be heard on the more significant issues of possible sexual and other forms of abuse by her older brother CB, or on the safety concerns of the Applicant and younger brother G about returning to their mother’s care. The Society also failed to provide the Applicant with satisfactory reasons for its decision to recommend and pursue a court Order returning the Applicant and her brother GB to the care of their mother rather than to their father.

BACKGROUND

6The Applicant (born February 17, 1998), her brother, GB (born May 23, 1999), and her older brother, CB (15 years old at the time) were apprehended from the care of their mother in February of 2010. The Society placed the 3 children together in the foster home of MA and FA. Their older brother, AB, was an adult at the time but he was unable to assume full-time care of his siblings when their mother was hospitalized for serious mental health issues. He called the Society for assistance.

7The Applicant’s mother is CV. She had a long history of mental health problems and CAS involvement. The Applicant’s father is MB. The parents separated in approximately 2000 at which time CV was granted custody of the 4 children. MB was to have had “reasonable and generous access”. Not long after the Order was made, CV relocated and MB lost touch with his children. He was contacted by the Society when the children were placed in care in 2010 and became quickly re-involved. At the time of the apprehension MB was living in Northern Ontario. He had suffered and was recovering from a stroke. He moved back to the area where his children were living on learning where they were.

8CB was placed in the same foster home as G and the Applicant until February 2011 when he returned to CV. The court ordered that all 3 children return to her care but the Applicant and GB refused to leave the foster home. At this point the Applicant disclosed that she had been sexually abused by CB in their home and in the foster home. The Society re-admitted the 2 children, conducted an investigation with the police, and CB admitted to the abuse. GB and the Applicant remained in the foster home until their discharge to their father’s care in May 2011.

9Prior to the court Order that they return to CV’s care in February of 2011, the Applicant and her younger brother raised concerns to the workers about various safety risks. They also refused to attend access with her.

10The Applicant has not been involved with the Society since her discharge from care 8 years ago, in 2011. She lives with her father and is in her 4th year at university.

11The Applicant’s complaint has 3 components. One is that her concerns about day to day issues in the foster home were not heard. The other is related to the Society’s failure to listen to her and her brother GB or give them an explanation for its decision to recommend to the child protection court that they be returned to their mother’s care. In its materials and in oral submissions the Society advised the court there were “no child protection concerns”. This recommendation was made despite the 2 younger children’s clear and consistent reports of safety concerns in that home, their express desire to be placed with their father, and reports from MB about CB’s behaviour with his younger siblings, his bullying and abusive behaviour of them.

12The Applicant also asserts that the Society should have investigated the possibility that she was being or had been sexually abused by CB based on reports to the worker from the foster mother. She says no one investigated or even spoke with her about the possible sexual abuse until after she refused to leave care and made the disclosure, several months after the foster mother reported it.

ANALYSIS

13The relevant provisions of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14 (“the Act”) in this matter are:

s.120(4) The following matters may be reviewed by the Board under this section: …

4. Allegations that the Society has failed to comply with subsection 15(2);

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

S15(2) Service providers shall ensure that children and young persons and their parents have an opportunity 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.

s.120(7) After reviewing the complaint, the Board may:

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

(e) dismiss the complaint.

14In PO v. Family and Children’s Services Niagara 2012 CFSRB 38 at paras. 14 -15, the Board described the purpose of provisions equivalent to s.120(4)4 and 5 of the Act in its predecessor legislation. The Board described the purpose of sections 68.1(4) 4 and 5 of the Child and Family Services Act, RSO 1990, cC.11 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 her concerns are taken seriously and dealt with thoroughly.

15This description of the purpose applies to the current legislative scheme. Moreover, the right to reasons under the Act means a right to a meaningful explanation about decisions that affect the applicant’s interests, In JG v Windsor Essex Children’s Aid Society, 2013 CFSRB 8, the CFSRB held that:

With respect to s.68.1(4) 5 (now s.120(4)5), what constitutes sufficient reasons is a matter to be examined in each case in the context of that particular situation. This may include an examination of the timeliness and the level of detail provided, A parent must be given sufficient information regarding the factors that were taken into account in making the decision to allow him or her to understand why and how the decision was made.

ISSUE 1 – Foster home issues

16The application includes several concerns about the foster home. In her testimony the Applicant expanded on each. Her concerns were as follows:

• Food restrictions – she complains that the foster home had set times to eat and a no-snacking rule. She sometimes was hungry or had to sneak food. She told her worker. GB testified that she was aware of the issue and intervened with the foster mother whom she encouraged to give the children some latitude until they became used to her schedule and her food choices. The Applicant said there was no real change but she did not complain again;

• Bullying – the Applicant said her life was made miserable by another foster child in the home who subjected her to repeated bullying. She told the foster mother but there was no change. She did not report this behaviour to the worker;

• Unjust punishments – the Applicant says that she was punished for the other foster child’s behaviour, sent to her room when the other child acted out. She acknowledged she told no one except her brother how she was feeling. It was linked to the bullying and she felt reporting it would make no difference;

• Meanness by the foster mother – the Applicant says the foster mother was often in a bad mood, upset or complaining about something. She said she spoke to her worker about the foster mother’s “nagging” but did not otherwise report it;

• Manner of morning wake-ups – apparently FA would wake the children by banging on the door, speaking loudly and flicking the lights on and off. The applicant complained about this to her worker. The next time FA woke them, MA told him not to be too loud and he responded sarcastically. The applicant testified “Nothing good came from reporting to the social worker”. In her application she states “After that, I felt my concerns would not be taken seriously and not respected. This proved to be true as there were other times MA would get upset if any of us complained to our social workers about her.”

• Personal belongings taken and not returned - there was an infestation of bedbugs in the foster home at some point not long after the Applicant and her brothers were placed. The Applicant felt like she and her brothers were blamed for the problem. All of their belongings were bundled and taken away as part of the extermination process and some items were not returned. The Applicant says she spoke with her worker and the foster mother about this. She said she got most of her personal belongings back when she left care except for some “keepsakes” which were not returned;

• Interference in family visits – the Applicant says the foster mother “hovered” over her visits with her older brother AB when he came to the home. She and G wanted to be able to spend their time together playing video games with him but the foster mother interfered. The Applicant spoke with a worker about this but AB stopped coming for visits so it was no longer an issue;

• Applicant’s hair - MA took the Applicant to a salon to have her hair straightened, The next day during a visit with her father and paternal aunt, her aunt did the Applicant’s hair and taught her how to do different styles with her curly hair which she had never learned before. On her return to the foster home, MA was very upset with her and the Applicant could not understand why she would take offence at her wanting to learn different techniques of managing her hair. Applicant said she simply did not speak to anyone about it because it was not worth arguing.

17The worker testified that she was surprised by the Applicant’s allegations about the foster home “given the high level of commitment and level of care and caring demonstrated by MA and FA.” She gave examples of how the foster family had gone beyond expectations in trying to help this family. They welcomed the Applicant’s older brother AB and her father MB for visits in the home. They allowed MB to use their car on occasion because he did not have one and was recovering from some health issues. They agreed to keep the Applicant and her younger brother after the court order discharging them and their refusal to leave. She had case notes about the food restriction issue, but she was otherwise unaware of the foster home concerns raised in the Applicant’s complaint. She believed the children were content and flourishing.

18The worker testified that she met with the Applicant frequently from the time of her placement in the foster home on February 10, 2010 until her discharge to her father’s care on May 25, 2011. She felt she had established good rapport with the Applicant and her brothers and that they had been provided with the space to talk about anything that may have been troubling them.

19The worker said she reviewed her recordings for the period 2010 – 2011 in preparation for the hearing and said she was unaware and therefore did not note many of the events described by the Applicant with respect to her treatment in the foster home.

20The Applicant admitted in her testimony that she did not bring most of her concerns about the foster home to the attention of her worker. Eight or nine years later it is clear that memories have faded and there is little that can be reconstructed from the Society record. The only recorded incident is that pertaining to the food restrictions. The Applicant told her worker about the problem. The worker discussed it with the foster mother. It is reasonable to conclude, with respect to the other foster home related complaints, that the worker would have followed up in a similar fashion had she been advised of the issue at the time.

21Regarding these foster home related complaints, I find that the Society did give the Applicant the opportunity to be heard. The Applicant had regular meetings with her worker. She admitted she did not take advantage of those opportunities because, in her view, “No good came from reporting to the worker”. On the facts as presented I cannot find that the Society failed to hear the Applicant or failed to give her the opportunity to be heard regarding these issues.

Issue 2 – Allegations that the Society failed to provide reasons for a decision that affected the Applicant’s interests

22There are 2 components to this part of the complaint. One is the Society’s failure to follow up on the possibility that the Applicant was being sexually abused in the foster home by her older brother. The second is the Society’s recommendation to the court that the Applicant and her siblings be returned to the care of their mother despite their reported safety concerns about her and the various problems in the foster home with CB with whom they would be living if they returned to their mother’s care.

23The possible sexual abuse was brought to the Society’s attention by the foster mother. She reported that she had found CB in the Applicant’s room late at night and in her bed a number of times. When asked, CB said that S (the Applicant) was calling him or that he thought she was too cold. S said nothing to her about it but the foster mother raised the question with the educational support worker (KP) advising that she was not sure the children had ever been spoken to about this. She advised KP that she and her husband took turns staying up at night to make sure it does not happen anymore. KP reported what she had been told in an email to the worker GB.

24The Society considered replacing CB and held a placement planning meeting (PPRC Consultation Report dated June 29, 2010.) There were several reported concerns about him in addition to his being found in S’s room including but not limited to aggressive and challenging behaviour, mood swings, excessive hand-washing, sleep disturbances and a very negative outlook. The report filed states that the Society discussed the issue of CB being found in S’s room and in her bed. “ They were clothed and C said he was consoling his sister. One cannot conclude anything from this behaviour. The foster parents worry about possible sexual motives although there has never been a concern about sexual abuse and no reports of sexualized behaviour. … C adopts an almost ownership type of relationship with S. He would not let go of her arm at the table.”

25In response to the Applicant’s question “Why did you not come to me to ask about potential sexual abuse?” the worker responded - “I interpreted it as an incident of sexual impropriety but there was no sexualized behaviour.” Asked whether she thought that she should have investigated further, the worker said she thought CB’s behaviour was a manifestation of his mental health issues. There was no disclosure, no indication of sexual arousal when he was found, he was fully clothed, and there were no other signs. “We are trained to be vigilant but, in this case, it did not cross my mind. I’m sorry if I failed you.”

26I accept that the worker’s apology was sincere. She did not however offer the Applicant an opportunity to be heard or even attempt to explore the sexual abuse issue with her until after the court case and the judge’s order returning the Applicant to her mother’s home where CB also lived.

27When the Applicant disclosed sexual abuse by CB in February 2011, the worker said she was “bowled over” by the information. She and KP took the Applicant to meet with the police immediately on hearing the disclosure. She also attended a police follow-up meeting 3 – 4 weeks later when the police concluded their investigation. CB had admitted to sexually abusing his sister and was very remorseful. There were no charges. He was directed to specialized counselling and no contact was permitted between him and the Applicant.

28The second decision made by the Society which the Applicant complains about is its decision to recommend to the court that all 3 children be returned to their mother in February 2011. By that point the father was represented and had submitted a Plan of Care to the court for the Applicant and GB. He did not yet have housing but it was in process. He reported his concerns about CB’s violence and aggression toward him and concerns about him bullying his younger siblings. He also expressed his safety concerns about the mother’s home to the worker. He did so in person and in writing.

29The children reported their safety concerns to their workers, the foster parents, and to the OCL who was appointed to represent them. These included the presence of cockroaches in the home, neglect, fear of interference in their access with their father, CB’s odd and bullying behaviour, and most importantly, their fear of another mental health episode similar to that which led to their apprehension in 2010. They did not see sufficient improvement, access visits were missed, the family service worker had difficulty reaching/finding CV, she was mentally ill and she had no support system. Despite those reported concerns and their express wish to be discharged to their father, the Society testified at court that there were no child protection concerns in the mother’s home. The Applicant simply cannot understand how or why the Society did that.

30The worker’s evidence on this point was that there was no viable placement option with the father at that time, the Society’s “obligation” was to return the children to the home they were taken from, and the mother was complying with the Society Plan of Care. She said she heard both children’s concerns and encouraged them to talk with their lawyer. She was aware of their desire to live with their father but that was not enough to prevent a return to the mother.

31The Society did not investigate or allow the Applicant to be heard on the more significant issues of possible sexual and other forms of abuse by her older brother CB, or on the safety concerns of the Applicant and younger brother G about returning to their mother’s care. The Society also failed to provide the Applicant with satisfactory reasons for its decision to recommend and pursue a court Order returning the Applicant and her brother GB to the care of their mother rather than to their father.

DECISION

32Regarding Issue 1, I find that the Society did give the Applicant the opportunity to be heard. The Applicant had regular meetings with her worker. She admitted she did not take advantage of those opportunities because, in her view, “No good came from reporting to the worker”. On the facts as presented I cannot find that the Society failed to hear the Applicant or failed to give her the opportunity to be heard regarding these issues.

33Regarding issue 2, I find that the Society did not investigate or allow the Applicant to be heard on the more significant issues of possible sexual and other forms of abuse by her older brother CB, or on the safety concerns of the Applicant and younger brother G about returning to their mother’s care. The Society also failed to provide the Applicant with satisfactory reasons for its decision to recommend and pursue a court Order returning them to the care of their mother rather than to their father.

ORDER

34Within 30 days, the Society shall provide a letter to the Applicant including the following:

• A detailed explanation of its rationale for disregarding the children’s reported safety concerns about their mother’s home and her lack of ability to care for them;

• A detailed explanation for why it preferred the mother’s plan over the father’s given the children’s express desire to live with him;

• An explanation of the Society’s policy regarding reports of possible sexualized behaviour in foster homes and whether that policy was applied in the Applicant’s case; and

• An explanation for why the Applicant was not interviewed after the first report by the foster mother of finding CB in the Applicant’s room and bed, and why the Society did not follow up with an investigation after the foster mother raised her concerns again with KP who reported it to GB.

35The CFSRB will remain seized for matters relating to the implementation of this decision.

Confidentiality Order

36Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions or any other documents or information provided or used in this Application with anyone, including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.