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Thursday, August 20, 2009

Day 3 Society's Child: It All Started With an Inept Investigation.

So how did all this litigation and conflict between the Foster Mother and Children’s and Youth Service of Alberta over the child start? The first step was an investigation into the Foster Mother’s home. This arose from an allegation of physical abuse made by another five year old formerly in the Foster Mother’s care. After that investigation, the child at the centre of the court case was taken out of the Foster Mother’s Edmonton home where he had lived from the ages of three months to four-and-a-half years. He was placed with extended family members in northern Alberta.

The Foster Mother immediately appealed the Director’s decision to remove the child. This post is going to review the Appeal Panel decision and reasons for returning the child to the Foster Mother.

First, some facts. The Foster Mother was told on October 20, 2006 the Director decided to remove the child. She appealed on November 29, 2006. The appeal started on March 29, 2007 because the government of Alberta objected to the Appeal Panel’s jurisdiction to hear the matter. The government claimed the Foster Mother’s home was “…an agency home and currently ‘on hold’ and therefore the Appeal Panel could not return the child.” Counsel for the Foster Mother said the relevant law did not distinguish between department foster home and an agency foster home. The Appeal Panel agreed with the Foster Mother’s legal position and decided it did have jurisdiction.

Strange position for the government to take claiming there were two classes of foster homes when the legislation did not differentiate at all between departmental and agency foster homes. How does this kind of tactical legal maneuvering by CYSA serve the best interests of the child? It just delays matters runs up costs and increases the adversarial atmosphere. This is merely encouraging conflict in a process that is supposed to be mostly concerned about the welfare of the child.

The Appeal Panel is Not Impressed:
The Appeal Panel, upon hearing the evidence, reversed the Director’s decision to remove the child and ordered him returned to the Foster Mother. Here is some of the crucial reasoning why the Director’s decision was reversed.

The Director's decision to remove the child was based on a CYSA Placement Resource Investigation Unit investigation. It was instigated by a disclosure of a 5 year old foster child who used to be with the Foster Mother. The alleged physical abuse of the child was by the Foster Mother’s adult daughter. The investigation concluded that the Foster Mother “…had failed to protect the foster child in her care from abuse.” There was an added concern about the presence of the Foster Mother’s ex-husband in the home.

The Appeal Panel then examined the quality and reliability of the investigation report. It found the government investigator failed to consider collateral evidence and had relied only on the verbal evidence of the other 5 year old foster child. The Appeal Panel found lots of factors to consider about the reliability credibility of the evidence of the 5 year old.

The Appeal Panel also criticized the investigator for taking an “extended time” to complete his investigation. They believed that delay also affected his findings. The usual time to do these investigations is apparently about 9 days. He started this file on April 26, 2006 but started the actual investigation May 28, 2006. That is a full month delay after receiving allegations of physical abuse of the child. He then took almost 5 more months to complete the report which was finished on October 20, 2006.

Surely this is a case of failure, refusal of neglect by the branch of the government who is specifically responsible to deal with these investigations. To show such a lack of any sense of urgency here stretches credibility that in this case they served the best interests of a child. What could have happened to him in the five months that elapsed if he was actually undergoing physical abuse? Did anyone care about that? Could it be that the investigator was not really concerned about the physical abuse at all so he could take his time? Was there was another agenda at play with the government here?

The Appeal Panel’s criticism of the quality of the investigation is telling as well. They list what the investigator did not do and should have done to serve the best interests of the child. The Appeal Panel the investigator did not interview the bus driver who the 5 year old originally told about the alleged abuse. The investigator did not interview the five year olds teacher, psychiatrist and psychologist all of whom were available and could “provide clear insight into (the five year olds) functioning.

Despite the allegations of punching and hitting by the five year old, the investigator did not take the 5 year old to a doctor to determine if there was any evidence of physical abuse. It was noted by the Appeal Panel there was no evidence of the child's assessor, social worker or case worker ever checking him over for bruises.

Despite all this the investigator said he still believed the five year old to be credible. It is unclear if he knew and ignored the fiveyear olds Reactive Attachment Disorder and Obsessive Compulsive Disorder. Based on these medical conditions the Appeal Panel considered the five year old would have “tendencies with sufficient reason to question his credibility.” The Appeal Panel also noted the five year old had been removed earlier from the Foster Mother’s home at her request. The Appeal Panel noted the five year old had made previous unsubstantiated claims of abuse against his birth mother. These facts seem to have been overlooked or ignored in the investigation too.

The Internal Administrative Review Makes Matters Worse:
There was an internal departmental “Administrative Review” of the Director’s decision and reported on December 21, 2006. It confirmed the Director’s previous removal decision. These reviewers, to their credit, actually met with the Foster Mother and the foster agency program director. They also met with departmental supervisors and the departmental Aboriginal Initiatives Office, the Child’s Advocate office and the extended family caregivers for the child.

This Administrative Review seems like a more conscientious effort to look seriously at the best interests of the child. Interestingly enough the Administrative Review report was attached to the Affidavit of the Foster Mother and not the affidavit of the government employee at the Court of Appeal. I am curious why didn’t the CYSA use the Administrative Review report as part of their case to prove the Director had done the right thing in removing the child? It looks like the Foster Mother was able to use the Administrative Review report to prove her case why the child should not be removed.

The Administrative Review found the earlier investigation recommendations to be appropriate and it confirmed the Director’s decision to remove the child. They met with other people but in the end confirmed the investigation findings that totally relied entirely on the verbal testimony of a troubled and disturbed five year old.

The Administrative Review also found the Foster Mother’s adult daughter to be “highly emotional” in the investigation. They described her as being “overbearing and with an intimidating approach to adults.” They took offence that the Foster Mother’s daughter used prior reports to challenge the credibility of the five year old with his unsubstantiated allegation that started this entire series of unfortunate events. DUH! Wouldn’t you be ticked off and demand some straight answers of the authorities under such circumstances?

These reviewers clearly had made up their minds and seem oblivious to any other objective evaluation or alternative judgment based on the evidence. Here is an example of prejudgment and prejudice in action. The Administrative Review says, “The reviewers found that although the police closed their criminal investigation, the child intervention investigation noted the concerns were not discounted, however, could not be substantiated.” How much more Kafkaesque can you get in one sentence?

There was not a single comment that I could find in the Administrative Review report to indicate what they reported on from their additional interviews. Where is the reviewer's discussion of the evidence from those interviews? Makes you wonder why the reviewers did the extra interviewing? Was this a smoke screen to cover up the ineptness of the original investigation? We will likely never know but these are legitimate questions for departmental management and leadership.

In the reviewer’s minds, the level of caregiver engagement, by the daughter, constituted abdication by the Foster Mother of her caregiver role. They accused the Foster Mother of failing to protect the child and criticized her for not actually believing the abuse allegations. Why would one believe the abuse allegations when there was not a shred of corroborated evidence of abuse? How is this failing to protect the child from abuse?

The Administrative reviewers further denied the Foster Mother and her family free and generous access to the child if he was not returned to their care. They also reaffirmed that the child's caseworker should continue with the extended family caregivers. To be clear, there is nothing to indicate that the extended family caregivers were anything but exemplary in their duty of care for the child. They are not at issue here in any way.

The Foster Mother Wins at Appeal but Government Still Wants to Fight:
Bottom line, the Appeal Panel found no evidence of any risk to the child in the Foster Mother’s home. It said that the removal of the child from that home was unwarranted. The foster home was obviously considered safe to leave the child in for the many two months between the initial screening and the investigation final report without additional surveillance of support. The case worker even testified that in her opinion the child was not only safe; he was a favourite in the foster home.

The only caution from the Appeal Panel was the presence of the ex-husband in the home on occasion. The said he had a “history of making poor choices and has been convicted of assault." The Panel accepted the Foster Mother’s testimony that he was never left alone with the children and recommended his presence in the home should be monitored.

The child was ordered returned to the Foster Mother’s home on July 17, 2007. That did not happen. The government department ignored the Appeal Panel’s decision. Instead they appealed it to the Court of Queen’s Bench. I will start at the QB findings in the next post.