An Update on the Foster Child and Alberta Director's Contempt of Court Case.

UPDATE MARCH 5, 2010 5:11 PM - GOOD NEWS.  I have just been contacted by the Deputy Minister of Alberta Children and Youth Services who advised that they are not appealing the Guardianship Order of the Foster Mother as stated in this blog.  I understood from earlier communications that the department intended to appeal.  If the facts about the appeal intentions of the department are in accurate in this blog post I owe both Children and Youth Services and the Foster Mother an apology.  I hope they both consider this factual update to correct the record an appropriate apology.  I am going to correct the content of this blog post to refect this update from the department by overstriking the irrelevant commentary and incorrect facts according to Children and Youth Services advice to me.

For those of you who follow this blog on a regular basis (and I thank you) you will recall I did a series of posts on problems in the Alberta Department of Children and Youth Services last summer. I centered the series on a Contempt of Court finding against a Director level official in department over a foster child and the impact and implications for the child. I am writing this post as an update on the case but first let me put you back in context.


I have to be careful in writing about the case to ensure the parties are not identified due to privacy concerns for the child at the centre of the case. I also wrote the series about the Foster Mother who was a champion for the child to stay with her. She took court action to that end and won in spite of the contrary and rejected recommendations of the government.

The attitude and actions of those in control of these matters in the Department of Children and Youth Services were criticized by the Court of Appeal. The former Minister launched an external review of how these matters were handled and I was interviewed by the external reviewers as part of their work. One of the things I said to the review committee was I believed there may a destructive culture in the senior levels of the department if this case was an example that could be generalized.

My impression was garnered from reading the Court files, background documents, as well as considering the actions of senior management involved in this case and the attitudes expressed in their communications from the department. My sense was that senior management was more interested in protecting the Minister from political ramifications than it was in serving its duty to represent the best interest of children in care. I pointed this impression out to the review committee and asked them to be aware of this possibility in their work and in their reporting.

Now for the update! It is timely given the death of a 21 month old little girl in foster care in Morinville this week but that is another story and perhaps for another time. Since the blog series last summer the Foster Mother who went to bat for this little boy has contacted me directly and kept me posted on developments. I will still have to be careful not to disclose identities but I can tell you as part of the original court process there were competing interests vying to take care of this child. The Foster Mother applied for Guardianship. Others, with a competing interest in the child and who had temporary custody granted from the lower court, had also applied to adopt the child. I can tell you the child is aboriginal and so cultural issues arise as well as caring, safety and other best interests’ issues.

I have just been advised by the Foster Mother there is good news.  The good news is her application to the Courts for Guardianship of the child was granted. The Adoption petition of the others was denied, in fact the other party’s request for continuing contact with the child was also denied. In addition the Foster Mother was awarded all her costs in the matter to be paid by the Director of Child, Youth and Family Enhancement. The Foster Mother was granted a similar order by the Court of Appeal to have all her costs paid in the original action. That means she not only won on the merits based on the law, the award of total costs is a major victory on the equity of the situation.

Now for the bad news! It seems as though the Director of Child, Youth and Family Enhancement intends to appeal the Guardianship Order and rejection of the Petition for Adoption. This department has lost at every instance and issue on this matter every time except for the first trial and that decision was a travesty of justice in my opinion. So this Foster Mother has to continue to fund and fight if the Director follows through with the threat to appeal.

The arrogance of this approach by the Department of Children and Youth Services is breath taking. How much abuse must this Foster Mother endure and how much uncertainty must this child suffer? How is this abuse of power by our government serving the best interests of this child? If the department can’t get it right the first time given all the power and resources they have at their disposal, what justifies them to continue to persecute and pursue this family? Please tell me it is not political or bullying and intimidation of citizens and at-risk vulnerable citizens as we are seeing in other areas like PDD funding.

When a child in care dies it is a tragedy. When a child in care becomes a pawn of in an unnecessary nightmare of administrative insouciance and insensitivity it is still a tragedy that can last a lifetime for this already vulnerable little boy. Minister Fritz, you were was given this portfolio to fix up this department. You obviously have a lot of work to do. Call off the departmental dogs in this case and so get that departmental review fast-tracked and made public as soon as possible.

I have just done a conjoint study amongst progressive thinking Albertans on the values they want to see applied by our government when it makes laws, policy and other decisions that impact the lives of citizens. Those Albertans told us they mostly wanted integrity, honesty, accountability and transparency from their government. It is time to start delivering on these values Madame Minister. This case is an appropriate place to start to change the culture of your department and to start to show that you will reflect those core values of Albertans.

UPDATE AND CORRECTION MARCH 5, 2010:

THIS BLOG POST HAS BEEN EDITED TO CORRECT AN APPARENT ERROR OF FACT THAT THE GOVERNMENT OF ALBERTA INTENDED TO APPEAL THE RECENT SUCCESSFUL GUARDIANSHIP ORDER GRANTED TO THE FOSTER MOTHER OF THIS CHILD.  I HAVE BEEN INFORMED BY THE DEPARTMETN YTHAT THIS IS NOT THE CASE.  I WISH TO APOLOGIZE TO THE MINISTRY OF CHILDREN AND YOUTH SERVICES AND THE FOSTER MOTHER TOO IF I MISUNDERSTOOD THE FACTS AROUND AN INTENTION OF THE GOVERNMENT TO APPEAL THIS RECENT COURT DECISION.

Day 7 Society's Child - Where Do We Go From Here?

This is likely to be the seventh and final episode of the Society's Child blog series unless there are further vital developments on the issues and events. Because of the court records we have had a unique inside look at one dramatic instance about how not to serve the best interests of a child at risk. We have see what happens when indifference and process predominates to override mandated public policy principles and purposes.

The public would never get this kind of access to detailed information and background about the government's conduct of a child welfare file. That is because it deals with the rights of a minor child in care and the overarching privacy issues will keep the facts from the public eye. But with a series of court appearances all the way up to the Appeal Court, we have seen a window of hard evidence open up to Albertans and we got to see into some of the inner workings of department of CYSA.

THANKS OWED TO THE COURAGE OF A FOSTER MOTHER:

We have seen an anonymous foster mother show enormous and admirable determination and courage in the face of a very powerful and determined state system. She has been the reason we have had this unique opportunity to see what can happen when a system goes arrogant and even a bit indifferent to public accountability. We have seen the state exercise its enormous power and influence in this matter. They have the means and resources to thwart, frustrate, intimidate and break the spirit and bank account of a citizen in such circumstances. I think the system used all of those powers in this case against the foster mother but she persevered and prevailed. Well done foster mother. And thank you also to her legal counsel. She also stayed the course and showed the best qualities and capabilities of the legal profession in her conduct of this matter.

I also feel sorry for the child at the centre of all this wrangling. He was not well served by the system and those in government authority who are entrusted to ensure his best interests. I also have some sympathy for Richard Ouellet, the departmental Director who personally took the hit for the departmental ineptness. His personal actions and inactions contributed significantly to his fate and are not excused or absolved from responsibility. But he is not likely the only one who was directly involved in the file who is a possible contemptuous contributor to this fiasco. The court noted that and I hope the Ministers involved are seriously looking into this as well.

So let me end on a positive note. I have been provided some links to other high profile child welfare cases. One that is worth noting is the famous Klassen case out of Saskatchewan. There the politically correct presumption in these complex and high-risk situations that "children never lie" was seriously tested. In this case the Alberta child welfare staff are praised by the Saskatchewan courts for how they handled their portion of a a file that was seriously bungled by Saskatchewan authorities. Go to page 59 to read some complimentary commentary about some of Alberta's child welfare officials doing a great job.

A STEP IN THE RIGHT DIRECTION:

Finally, I see hopeful signs that concerns raised in this blog series that reviewed in the court action and the concerns of the court are being addressed. Following is copy of a copy of the September 18, 2009 edition of the GOA "Connector" publication to provincial government staff. In it Fay Orr, the Deputy Minister of CYSA obviously starts an internal education process. She outlines the duties, role, relationships and background of Statutory Directors, like Mr. Ouellet, in the department.

This is a step in the right direction and one that I think readers of this blog will appreciate. I think this is a genuine effort to deal with the accountability (and cultural?) problems in the department that this court case uncovered. It is but one of many steps that need to be taken to fix some fundamental problems that seem to pervade too much of the systems in this department - and others in the social services sector including Seniors and Health. I have outlined in blue the most salient part of this commentary that I think shows some hopeful signs of positive change. This clarity of accountability in management relationships was clearly missing as evidenced in the court documents around this case.

Here is the Connector piece that is hopefully some evidence of a new day in Children and Youth Services Alberta:

Statutory Directors
ACYS has three statutory directors – one under the Child, Youth and Family Enhancement Act; one under the Family Support for Children with Disabilities Act; and one under the Child Care Licensing Act.

These directors entrust or delegate the authorities they are given under their respective pieces of legislation to fellow staff, so these staff can do their day-to-day work for children, youth and families. However, the directors do not and can not delegate the legal responsibility they have under legislation. That means these directors are ultimately responsible and accountable for the activities taken under the legislation.

Here’s an example of how this works within child intervention: When a caseworker is delegated by the director with the authority to seek a temporary guardianship order from the court, the caseworker is responsible for implementing the court order and ensuring the well-being of the child. The director is responsible for ensuring there are mechanisms in place by which he or she can be assured that the caseworker is exercising appropriately the delegated authority they have been given.

Approximately 9,000 children and youth are involved in our child intervention system, hundreds of families receive support for raising their child with a disability, and many families count on us to ensure quality and affordable child care. Having mechanisms to monitor the proper use of delegated authority and ensure clear, timely communication between and among the frontlines, support staff and management is crucial to improving outcomes for kids and fulfilling our legislated duties. That’s one of the reasons why we, as a ministry, are always looking at ways to enhance our processes and practices. Recently completed reviews in Foster Care and Child and Youth Advocacy and the current Child Intervention review are prime examples.

With more than 3,100 employees, ours is one of the largest ministries in the provincial government. Whether we work directly with children and families or support those who do, each one of us has an important role to play ensuring that our policies, procedures and legislative responsibilities are followed and that Albertans receive quality services that make a lasting and positive difference in their lives. We are in this together, and continue to rely on and support one another in our daily work for children, youth and families.

THE BENEFIT OF THE DOUBT:

The department has a lot going on and will face even more severe pressures with the new fiscal realities of the province. The problems will not go away, in fact there will likely be more at risk kids with worsening situations given the stresses of the recession. I hope the political leadership, departmental management and staff will take this case to heart and learn from it. We need them to become even more effective and capable at fulfilling one of societies most difficult function, taking care of kids at risk. That means serious commitment to sustained and substantial change and with the expectation of fewer resources. Not an easy row to hoe but it can't just be measured by merely tracking and cutting the amount of tax dollars dedicated to the area. That does not reflect the values and obligations we as a society owe to these children.

THANKS FOR READING & CARING:

As for this blog series, Society's Child, I think it is time to move on. I am very much into giving the benefit of the doubt to all those in this department who are mandated to serve the best interests of our society's at risk children. The essential reality is these are our kids. Albertans are also responsible for their well being, not just "the government." We are the government in a democracy.

I will continue to watch for positive and negative trends and will comment as best I can and post on them from time to time. Thank you for your dedicated regular reading this blog series. You came out in record numbers and I hope you come back and become regular readers. I will be continuing the regular blog posts on matters that continue to capture my attention and imagination. I will also be doing a new series on something completely different issues that are also critical to the best interests of the citizens of Alberta. Stay tuned for that.

Links to Posts on Children's Services Series

I have been posting a series on the legal, governance, policy, fiscal and social implications of the recent Alberta Court of Appeal finding of contempt of court against a senior Children's Services bureaucrat. The issues and processes are complex so these posts are relatively long.

I thought it would be helpful for people to follow the series if I put up a one-stop link to all of them in reverse chronological so readers could go back into the history the posts if they wanted more context. I will add new posts and link them here as they get published.

THE SERIES:
Day 7: Where Do We Go Fron Here?
http://ken-chapman.blogspot.com/2009/09/day-7-societys-child-where-do-we-go.html

Day 6: What Led to Mr. Ouellet Being Found in Contempt of Court
http://ken-chapman.blogspot.com/2009/08/day-6-what-led-up-to-mr-ouellet-being.html

Day 5: Did Children's Services Act Within the Rule of Law?
http://ken-chapman.blogspot.com/2009/08/day-5-societys-child-childrens-services.html

Day4: Foster Mother Wins Appeal & Government Goes to Court
http://ken-chapman.blogspot.com/2009/08/foster-mother-wins-appeal-government.html

Day3: It Started with an Inept Investigation
http://ken-chapman.blogspot.com/2009/08/day-3-societys-child-it-all-started.html

Day 2: Accessing & Reviewing the Court of Appeal File
http://ken-chapman.blogspot.com/2009/08/day2-societys-child-accessing-and.html

Day 1: A Blog Series on At-Risk Kids in Care in Alberta
http://ken-chapman.blogspot.com/2009/08/societies-children-blog-series-on-at.html

EARLIER RELATED POSTS:

Court of Appeal Orders Jail Time for Bureaucrat for Contempt of Courthttp://ken-chapman.blogspot.com/2009/08/ct-of-appeal-says-contempt-of-court.html

Minister of Children & Youth Services Reaches Out http://ken-chapman.blogspot.com/2009/08/alberta-minister-of-children-youth.html

Contempt Aside, Where the Child'sBest Interests Served?http://ken-chapman.blogspot.com/2009/08/contempt-of-court-aside-were-best.html

Alberta Government Found in Contempt of Courthttp://ken-chapman.blogspot.com/2009/08/alberta-government-official-found-in.html

Ct of Appeal Says Contempt of Court Means Jail Time but Community Service is an Alternative.

The Court of Appeal has wrestled with what is an appropriate penalty for Mr Ouelette's contempt of court for failing to promptly obey an earlier order of the court. Here is the Judgment.


The Justice reviewed the Rules that apply and here are the options: A fine but that would likely be covered by the province (we taxpayers) and that would mean no real skin off the former Directors nose.


Imprisonment until the contempt is "purged" but that purging was done the day before the second hearing on the contempt issue because the original court order was complied with and the child was returned as ordered. So that penalty is not appropriate. The Court noted, however, had the child not been returned at the last minute, imprisonment until the order was complied with may well have been appropriate, but not any more.


The final option under the Rules is imprisonment for up to 2 years but the court thought that was "harsh" so an alternative was sought between prison and a fine.


The possible resolution of the "quandary" was community service and there is case law that allows for this finding. Here is where it gets interesting and the wisdom of the courts and the judgment of the Bench come into focus. I love it when you see justice done in this way.


The final decision was to sentence Mr. Oulette to 8 days in prison for his contempt, to start once he got back from his holidays. However, the court gives Mr. Ouelette an option to avoid going to jail. He can do unpaid community service of 40 hours with a charitable organization or municipal government by October 31, 2009 and it must "not be in the child protection areas."


In addition the court ordered the payment of the solicitor-client costs of the lawyer acting for the foster mother and the child B.M. throughout the various stages. It left it up to the government to decide if it would pay those cost on behalf of Mr. Ouelette. That will likely be the case. However if the costs are not paid, then a motion could be brought to send Mr. Ouelette to jail on that basis too.


I think this is a very fair and appropriate penalty. The factors the court considered in arriving at it are interesting too. There was no "profit or bad intent" by the Director but a "considerable degree of carelessness." Since Mr Ouelette is no long in this position it is unlikely that there will be a recurrence by him. There was an apology and explanation given to the courts that served to mitigate penalty and the possibility that he received "poor legal advice."


Key to this court finding was also a "need for general deterrence (of others); and need for denunciation." These latter two heads of consideration go to the issue of the leadership, management and culture of the department which is what needs to be seriously reconsidered and fixed by the looks of it.


So that part of the drama is over. Now lets look at how well the child's interests were served in all of this and monitor how the department is responding.