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Monday, August 24, 2009

Foster Mother Wins Appeal & the Government Goes to Court.

SOME CONTEXT AND KEY QUESTIONS:

This case is complicated and challenging but it provides a window into how our government is behaving and operating in its duty of serving the best interests of at-risk kids in and of our society. It is always dicey to generalize from one instance. But the attitude and behaviours exhibited by senior levels of Children and Youth Services Alberta (CYSA) in handling this case makes you wonder how endemic this approach is elsewhere in the department and other social service departments in the Alberta government.


The Appeal Panel is an internal government process, setup in law, to deal with various concern issues within mandate of CYSA. It is intended to resolve issues in an efficient, cost-effective manner that does not involve the time, expense and adversarial nature of litigation. It is a check and balance available for a child, a guardian, a foster parent or other child caregivers over the discretionary (and necessary) powers of the government.


The challenging issue here is why the Alberta government wanted to go to court to over-ride the internal Appeal Panel finding to reverse the Director’s decision to remove the child from the foster home. Was there evidence that the Appeal Panel did not have or discounted? Was it because the Appeal Panel made a mistake in law and was it acting outside its jurisdiction? Those were the legal arguments made by the CYSA in court.


Or was the CYSA decision to take the Foster Mother to court a tactic to grind her down by adding cost, time, energy, anxiety and frustration, hoping she would just give up? Did the CYSA believe it was infallible and in absolute control of these matters? Did the CYSA not appreciate being challenged by an agency Foster Mother? Or was it something else? I will leave the drawing of any conclusions to the reader but these are some of the serious questions begged by the behaviours of the CYSA.


THE ANALYSIS:

I have not read any of the Court of Queen’s Bench (QB) files on the Appeal Panel’s decision to reverse the Director’s order to remove the child from the Foster Mother’s home. I have read the Memorandum of Judgment of the Alberta Court of Appeal that on the Queen’s Bench decision. They do a pretty thorough job of reviewing the reasons of the Queen’s Bench Chamber’s judge. I feel that is enough background to deal with this next phase of this series: Going to Court.


CYSA had every legal right to take the Appeal Panel decision to court, and in many cases they have a duty to appeal such matters to the courts. In this post I will explore the background on the two court appeals, the Court of Queen’s Bench by CYSA and the Court of Appeal by the Foster Mother. CYSA won the QB appeal at a Chambers hearing. That is not a full blown trial and the evidence is mostly affidavits. CYSA also got QB to grant a stay of execution of the Appeal Panel decision to return the child. That meant that CYSA did not have to comply with the Appeal Panel decision until the matter was dealt with in Queen’s Bench.


THE COURT OF QUEEN’S BENCH DECISION AND REASONING:
The chambers judge in Queen’s Bench decided to reverse the Appeal Panel’s decision to return the child. The law that governed the QB judge in deciding the matter was “…based on the material before him, what is in the best interests of the child on the balance of probabilities.” [Ct of Appeal Memorandum of Judgment Para 12]


The QB judge also noted “…that both the Court (QB) and the Appeal Panel were equally positioned to determine that which is in the best interests of the child.” He went further and said “that the Panel’s decision must be held to a standard of correctness.” He also noted that no curial deference could be attributed to the Appeal Panel. That means the court could examine the evidence anew that was before the Appeal Panel. This was because the court found that there was no legal restraint for it to be bound by the facts as determined by the Appeal Panel. It also determined that “The Appeal Panel had no particular expertise in determining the best interests of the child….”.” [Ct of Appeal Memorandum of Judgment Para 13 and 14]


Based on these findings the QB judge said “…I can determine, in on the record before me, the Appeal panel erred and if so, I have all the evidence to support a determination in this matter.” So here, according to the Court of Appeal, is what the QB judge found.


THE COURT OF APPEAL DECISION AND REASONING:
The Court of Appeal heard the matter on September 2, 2008; the decision was written on January 30, 2009 but not filed until March 25, 2009. Those dates are important because of the timing of the Director’s Petition for Adoption for the child by the extended family caregivers. I will talk more about that in later posts.


On “the balance of probabilities” the chambers judge concluded “…that the departmental investigative report was “comprehensive and complete and the Director relied on that report in deciding that is was in the best interests of (the child) that he be removed from (the Foster Mother’s) home.” The chambers judge said the Appeal Panel erred in law in “second guessing” the department’s investigation. They were wrong in concluding that the long time to complete the reporting was a basis for reversing the Director’s decision and that any delay in removing the child from the foster home until the report was done was a ground for reversing the Director’s decision. They were wrong to suggest that there were alternatives to deal with the Foster Mother’s adult daughter’s involvement with the child that could result in not removing the child. [Ct of Appeal Memorandum of Judgment Para 15].


The Court of Appeal said in its Memorandum of Judgment that the CYSA position was”… that the findings by the investigator, as confirmed by the Director, found that the child was at risk and in need of protection is unassailable on review by the Appeal Panel.” They argued that the Appeal Panel could only consider “various remedial alternatives.” “In other words, the Appeal Panel, the Respondent (CYSA) contends, is precluded from inquiring as to the sufficiency of the investigation or, for that matter, in any way challenging the director’s conclusions that the child was at risk. The Respondent argues that the Appeal Panel’s jurisdiction is confined to a consideration of whether some alternative other than removal of the child would have been appropriate, i.e. greater supervision, counselling, education etc.” [Ct of Appeal Memorandum of Judgment Para 18]


The Court of Appeal came down clearly and hard on the CYSA saying “The Respondent’s submission must be rejected.” They accepted that the Director's decision to remove the child was “…founded exclusively upon the investigation and no finding that a child is at risk and in need of protection can be made without reliance upon that investigation.” The Court of Appeal reads section 119(2) of the Child, Youth and Family Enhancement Act and says “…it seems apparent that the Appeal Panel has a broad discretion to “confirm, reverse or vary the decision of the director appealed from.’”



As a further admonition the court said the Appeal Panel powers come from “precisely the same language employed by the Legislature to describe the role of the Court of Queen’s Bench.” The say the Appeal Panel has and needs that broad discretion to accomplish it’s “…purpose, to inquire as to the sufficiency of the underlying investigation. [Ct of Appeal Memorandum of Judgment Para 19]


The Court of Appeal notes that there were legislative amendments even as far back as 2003 that also conferred this power of a broad scope of review on Appeal Panels. The said that power extended “…to an examination of the investigative underpinnings revealed by ‘any new evidence’ or engaged by oral or written representations and submissions. To hold otherwise is, in our opinion, an error of law.” [Ct of Appeal Memorandum of Judgment Para 20]


QB MADE THE ERROR OF LAW - NOT THE APPEAL PANEL:
Given this legislated power in the Appeal Panel, the Court of Appeal rejects the QB judge observations and agreement with the CYSA that there was some kind of “jurisdictional inability of the Appeal Panel to ‘second-guess’ the director, if by ‘second-guess’ he meant to substitute the Appeal Panel’s view of the evidence for that of the investigator and of the director.” They said in conclusion, “In our view, it was an error of law to so constrain the scope of review by the Appeal Panel. The Appellant (Foster Mother) is entitled to relief. The order of the Court of Queen’s Bench is set aside and the decision of the Appeal Panel is restored.” [Ct of Appeal Memorandum of Judgment Para 21]


The Foster Mother won at the Court of Appeal big time. This judgment will have positive impact on many other at-risk kids and encourage other caregivers to challenge inept investigations and inappropriate administrative decisions by government based on them. However, this story is far from over.


In the intervening period, before the Court of Appeal decision came down, the Director filed a Petition for Adoption of the child by the extended family, on March 13, 2009. This move by CYSA for adoption of the child by the extended family is clearly adding to the complexity, cost and would raise the anxiety of the Foster Mother. Her lawyer writes to the Court of Queen’s Bench indicating she was seeking client instructions to respond to the adoption process and asking to be advised of any steps taken in the matter. She also writes to the CYSA on March 18, 2009 saying essentially the same thing about seeking instructions on the adoption process.


This is upping the ante and putting more pressure on the Foster Mother, her energy, capacity, determination and her resources. One has to wonder if initiating this adoption process by CYSA was really necessary for the best interests of the child given the suspicious nature of the timing.



The Foster Mother shows that she is no quitter and she takes some retaliatory steps of her own.
Next post I will deal with the actions taken by the Foster Mother in response to the CYSA adoption move and how she initiates steps to find the Director personally in contempt of court. I will also deal with how this case finally comes to the attention of the Director and what the bureaucrats do beyond the adoption petition and how, if at all, those actions could be in the best interests of the child.


NOTE TO READERS: I have set up a blog post that will gather together in one place all the posts in this series. That way you can go back to the beginning as start following the events or check out other details as you wish. Here is the link to that age where the entire series is located. I will add the link to the bottom of all subsequent posts for convenience.

5 comments:

  1. Seems to be more and more behind the story. Had the foster mother been a weaker person would the CYSA even been brought to light? Probably not, which makes me wonder how much more of this type of thing will come to light. Seems to me like they were rather pissed she challenged them and thought they could bully their way through.
    Great post Ken and I look forward to your next findings.

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  2. It took me awhile to get to reading this series, but I am most appreciative that you have taken the time to more closely examine this case Ken.

    I am quite looking forward to a discussion as to how we as a society need to start taking more collective responsibility for all children and youth.

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  3. I wil be posting on some recommendations to fix the system and strengthen it too. That is a ways away. I have not finished detailing the background on the problems identified in the court case. There are more issues to be exposed and understood before we can start to lok at repair.

    Any thoughts you or other readers have in how to fix the problems would be welcome in the meantime.

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  4. AB_Baby9:46 pm

    I must say, it's hard not to become confused reading your very well-explained commentary, Ken. Trying to unravel this case is obviously a real challenge!

    It still really seems to me to be a huge disconnect between the decision-makers and the people at the bottom who pay the price. I can't help but ache for this little boy who was torn from the only family he ever knew and not returned for such a long time - months are years to a small child.

    There also still seems to be a real "we're above the law" mentality at play here. And I must reiterate - that was always my experience (and my biggest frustration) dealing with child welfare social workers. They knew they had the power and families had to comply. Family support workers are often left trying to mediate in the middle to protect families from this, instead of actually providing support.

    I'm amazed this foster mother had the resources and the will to keep up the fight. She clearly loves this little boy deeply and he is so lucky to have someone like that in his life.

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  5. Thx AB_Baby - the file is confusing with the various court levels and actions and the Appeal Panel with the Court of Appeal. And the Statutory Ban means we can't use real names so it makes for a tougher read.

    From your comment I see you get the core concerns here. This is not an abused nor a neglected child from these court records. He has two families who care enough to want to adopt him.

    Question is what is in this child's best interest and how does the government system assess that and deliver for him.

    I have a number of blog posts yet to go but would appreciate comments from readers on what needs to be done to fix up this system. It needs a rethink and an attitude adjustment at some seniors levels administratively and politically - and not just the Minister.

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