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.
Thursday, August 20, 2009
Tuesday, August 18, 2009
Anonymous Bloggers Beware!
UPDATE: AUGUST 23 - GLOBE AND MAIL STORY says days of anonymous bloggers are limited and cites a successful case against Google forcing them to reveal the identity of a blogger.
(H/T) Debra Ward for the lead.
Here is an interesting UK court case that says Bloggers can't hide behind a cloak of anonymity. The Times newspaper "deduced" the identity of an anonymous blogger who was "very political and critical." Political and critical - in the blogospher? How does that happen ;-)
An anonymous blogger was a detective constable writing under a pseudonym who tried to protect his true identity. The court said "...the public should have the right to receive information about the author so that they could assess the weight and authority to be attached to them."
Yes!!! Lots of reasons to be anonymous but not many of them are good ones, especially for bloggers and commentors.
Blogging is growing up and becoming much more of a mainstream media as well as a social media. Here is an indication of the implications of this shift, as this court said, "...blogging was(is) essentially a public, rather than private, activity. Bloggers often took steps to disguise their authorship, but is was a step too far to say that those people could legitimately expect others to be prohibited at law from deducing their identity."
Makes one wonder if Tiny Perfect Blog will ever be back.
(H/T) Debra Ward for the lead.
Here is an interesting UK court case that says Bloggers can't hide behind a cloak of anonymity. The Times newspaper "deduced" the identity of an anonymous blogger who was "very political and critical." Political and critical - in the blogospher? How does that happen ;-)
An anonymous blogger was a detective constable writing under a pseudonym who tried to protect his true identity. The court said "...the public should have the right to receive information about the author so that they could assess the weight and authority to be attached to them."
Yes!!! Lots of reasons to be anonymous but not many of them are good ones, especially for bloggers and commentors.
Blogging is growing up and becoming much more of a mainstream media as well as a social media. Here is an indication of the implications of this shift, as this court said, "...blogging was(is) essentially a public, rather than private, activity. Bloggers often took steps to disguise their authorship, but is was a step too far to say that those people could legitimately expect others to be prohibited at law from deducing their identity."
Makes one wonder if Tiny Perfect Blog will ever be back.
Day2 Society's Child: Accessing and Reviewing the Court of Appeal File
I visited the Clerk of the Court of Appeal of Alberta on Wednesday August 12 and asked to see the contempt of court file relating to Director in Alberta Children and Youth Services. I said earlier in this Blog that I would research the issues and comment about how the best interest of the child was served in this case. I was also interested in the background about how a policy unit in an Alberta government social services department could end up acting like they were not bound by the rule of law.
When I arrived the Clerk’s office asked me to write a letter outlining what documents I wished to see and why. My first reaction was puzzlement because court files are public documents unless there is a court order sealing them. That was not the case here. It then occurred to me that the concern was likely about the risk of identifying the child who is at the centre of all this. Of course his/her identity had to be protected. The matter is very current and complex and the child’s privacy should be of foremost concern. I expected the courts didn’t have the time to prepare a public copy of the file that would remove certain names to protect the identity of this child. I was right, so don’t run down to the court house to see the file, at least for a couple of weeks.
Given the circumstances, I wrote the letter and described what I was doing and why. I advised the Clerk’s office that was going to write some blog posts on the best interests of the child issue and other concerns I may discover in reading the file. I told them that I’m a lawyer on the inactive list but still a Member of the Law Society of Alberta. I said that I was bound by the Code of Conduct and as an officer of the court, I had a duty not to disclose the identity of the child in any writing I did.
I was called right after I faxed the letter and was given access to the unexpunged copy of the Court of Appeal. I spent about 7 hours in the Clerk’s office going over the documents last Thursday and Friday. I appreciate the co-operation of Clerk’s office and the Court of Appeal in allowing me such timely and open access. I have to tell you from watching these Court of Appeal clerks, they are hard working, conscientious and spread very thin. They have staff shortages, a hiring freeze and holiday scheduling to contend with as the court system grinds on without any summer lull. C'est la vie in times of budget restraint.
With access to the file I know the names of the parties so I need to explain some ground rules I will use in this blog series to protect the identity of the child. I will refer to the child as “he” or “the child” for purposes of convenience. I will refer to the “Foster Mother.” She is known as B.M. in the published court documents. The “Extended Family” was a caregiver to the child before his recent return to the Foster Mother.
As a matter of fairness, I will not use the names of any of government staff involved in the case but will refer to the positions they hold. I think they also deserve some privacy. Besides there is apparently a government investigation on-going by Children and Youth Services and Alberta Justice to see if others may also be found in contempt of court. Those parties are innocent until proven guilty and nobody has even been identified yet as even being potentially in contempt. It is not the time or place for me or readers to jump to any conclusions. So in fairness, I will respect their privacy under these circumstances. I will do my best to monitor that government investigation and the independent departmental review order by the Minister of Children and Youth Services (CYSA). I do not expect much of it will be made public until it is complete, if then.
I will use the Minister’s name, the Honourable Janice Tarchuk and the name of the Director, Richard Ouellet, who was found in contempt of court. They are the public faces on this file. I hope people don’t find this too awkward in reading the series but it has to be this way to protect the identity of the child.
After reading the entire file I have some sympathy for Mr. Ouellet, the Director who was found in contempt of court. He is still guilty of contempt but I think he received bad advice as Mr. Justice Cote noted in his Penalty Decision. But with 32 years in government you would also think he would also know better. More on that in later posts.
Now for some background facts to set the stage. The child was under permanent guardianship of the government from September 2003. The child was 3 months old when the Foster Mother started caring for him in Edmonton. He was removed from the Foster Mother’s care when he was 4 and a half, as a result of an inspection of the foster home done by CYSA. He is now 7 years old in school and back with his Foster Mother. He was returned the day before Mr. Ouellet appeared before the Court of Appeal in an unsuccessful attempt to vary or vacate the finding of contempt of court against him.
The child was taken away from the Foster Mother in October 2006. He was moved up north, placed with relatives who started adoption proceedings in March 2009. The Foster Mother's family was also interested in adopting him and had applied in 2005. The . There are documents on file that say the Foster Mother is aboriginal as is the extended family and the child was exposed to native spirituality and aboriginal culture throughout his life. So you can see this child was not unwanted nor unloved. In fact two families obviously care for him and want to adopt him. The adoption of the child is still an open issue and therefore not part of my review.
The Foster Mother took immediate steps to appeal the Director’s decision to remove the child from her care. Next post I will tell you about the process and grounds the department of Children and Youth Services used to remove the child from the Foster Mother’s care. An Appeal Panel reviewed the Director’s decision in hearings starting March 28, 2007 and continuing May 17, 18, 24 and 25, 2007. The Appeal Panel obviously considered its decision thoroughly and carefully.
I will tell you next post why they reversed the Directors decision and ordered the child returned to the Foster Mother. I believe the Foster Mother is a woman of courage and persistence. Without her and her lawyer, we may never have known about this case. Nor would we have the benefit of considering the lessons to be learned from this case. We have lots to learn in terms of how our society and social service systems deal with at-risk kids, who are, after all, the responsibility of all of us - not just our government.
When I arrived the Clerk’s office asked me to write a letter outlining what documents I wished to see and why. My first reaction was puzzlement because court files are public documents unless there is a court order sealing them. That was not the case here. It then occurred to me that the concern was likely about the risk of identifying the child who is at the centre of all this. Of course his/her identity had to be protected. The matter is very current and complex and the child’s privacy should be of foremost concern. I expected the courts didn’t have the time to prepare a public copy of the file that would remove certain names to protect the identity of this child. I was right, so don’t run down to the court house to see the file, at least for a couple of weeks.
Given the circumstances, I wrote the letter and described what I was doing and why. I advised the Clerk’s office that was going to write some blog posts on the best interests of the child issue and other concerns I may discover in reading the file. I told them that I’m a lawyer on the inactive list but still a Member of the Law Society of Alberta. I said that I was bound by the Code of Conduct and as an officer of the court, I had a duty not to disclose the identity of the child in any writing I did.
I was called right after I faxed the letter and was given access to the unexpunged copy of the Court of Appeal. I spent about 7 hours in the Clerk’s office going over the documents last Thursday and Friday. I appreciate the co-operation of Clerk’s office and the Court of Appeal in allowing me such timely and open access. I have to tell you from watching these Court of Appeal clerks, they are hard working, conscientious and spread very thin. They have staff shortages, a hiring freeze and holiday scheduling to contend with as the court system grinds on without any summer lull. C'est la vie in times of budget restraint.
With access to the file I know the names of the parties so I need to explain some ground rules I will use in this blog series to protect the identity of the child. I will refer to the child as “he” or “the child” for purposes of convenience. I will refer to the “Foster Mother.” She is known as B.M. in the published court documents. The “Extended Family” was a caregiver to the child before his recent return to the Foster Mother.
As a matter of fairness, I will not use the names of any of government staff involved in the case but will refer to the positions they hold. I think they also deserve some privacy. Besides there is apparently a government investigation on-going by Children and Youth Services and Alberta Justice to see if others may also be found in contempt of court. Those parties are innocent until proven guilty and nobody has even been identified yet as even being potentially in contempt. It is not the time or place for me or readers to jump to any conclusions. So in fairness, I will respect their privacy under these circumstances. I will do my best to monitor that government investigation and the independent departmental review order by the Minister of Children and Youth Services (CYSA). I do not expect much of it will be made public until it is complete, if then.
I will use the Minister’s name, the Honourable Janice Tarchuk and the name of the Director, Richard Ouellet, who was found in contempt of court. They are the public faces on this file. I hope people don’t find this too awkward in reading the series but it has to be this way to protect the identity of the child.
After reading the entire file I have some sympathy for Mr. Ouellet, the Director who was found in contempt of court. He is still guilty of contempt but I think he received bad advice as Mr. Justice Cote noted in his Penalty Decision. But with 32 years in government you would also think he would also know better. More on that in later posts.
Now for some background facts to set the stage. The child was under permanent guardianship of the government from September 2003. The child was 3 months old when the Foster Mother started caring for him in Edmonton. He was removed from the Foster Mother’s care when he was 4 and a half, as a result of an inspection of the foster home done by CYSA. He is now 7 years old in school and back with his Foster Mother. He was returned the day before Mr. Ouellet appeared before the Court of Appeal in an unsuccessful attempt to vary or vacate the finding of contempt of court against him.
The child was taken away from the Foster Mother in October 2006. He was moved up north, placed with relatives who started adoption proceedings in March 2009. The Foster Mother's family was also interested in adopting him and had applied in 2005. The . There are documents on file that say the Foster Mother is aboriginal as is the extended family and the child was exposed to native spirituality and aboriginal culture throughout his life. So you can see this child was not unwanted nor unloved. In fact two families obviously care for him and want to adopt him. The adoption of the child is still an open issue and therefore not part of my review.
The Foster Mother took immediate steps to appeal the Director’s decision to remove the child from her care. Next post I will tell you about the process and grounds the department of Children and Youth Services used to remove the child from the Foster Mother’s care. An Appeal Panel reviewed the Director’s decision in hearings starting March 28, 2007 and continuing May 17, 18, 24 and 25, 2007. The Appeal Panel obviously considered its decision thoroughly and carefully.
I will tell you next post why they reversed the Directors decision and ordered the child returned to the Foster Mother. I believe the Foster Mother is a woman of courage and persistence. Without her and her lawyer, we may never have known about this case. Nor would we have the benefit of considering the lessons to be learned from this case. We have lots to learn in terms of how our society and social service systems deal with at-risk kids, who are, after all, the responsibility of all of us - not just our government.
Monday, August 17, 2009
High Speed Rail is Catching on - Will Alberta Lead or Follow?
I am a big fan of high speed rail for the Edmonton-Calgary Corridor. It has many advantages and yes it is a fiscal stretch in times of recession. So in the meantime we should at least be assembling the right-of-way so when the economic times are better we can start building the project.
There is lots of HSR activity happening around the world. Alberta has a small population but we have a strong likelihood of Alberta continuing to grow - dramatically. We should be anticipating the future and designing infrastructure to meet the needs, including reducing car travel with high gasoline prices. We could also help reverse the unfortunate image around the world of Alberta as a dirty oil dynasty with this very green HSR project that will garner international attention.
This is a very complex project but no longer cutting edge. Many other countries are seriously into HSR, including China, big time. We Albertans have studied the concept for decades and the time to do is is just about tight now.
There is lots of HSR activity happening around the world. Alberta has a small population but we have a strong likelihood of Alberta continuing to grow - dramatically. We should be anticipating the future and designing infrastructure to meet the needs, including reducing car travel with high gasoline prices. We could also help reverse the unfortunate image around the world of Alberta as a dirty oil dynasty with this very green HSR project that will garner international attention.
This is a very complex project but no longer cutting edge. Many other countries are seriously into HSR, including China, big time. We Albertans have studied the concept for decades and the time to do is is just about tight now.
MPs Should Be on Twitter & PoliTwitter Especially
There is a growing possibility of a Federal election sooner than later. The Liberals and Conservatives are neck and neck in the polls and have been for some time. The NDP are running against the Liberals and ignoring the threat of the Greens coming up behind them. The Bloc is old, tired and a spent force politically and not rejuvenating at the party level. Media reports indicate that the next election will be fought constituency by constituency.
In all of this political churn I received an interesting email from Trevor May of PoliTwitter.ca. Twitter is becoming a great tool for political networking and sharing by politicians and political parties.
Many politicians are using it, some more effectively than others. The Liberals are into it and using it more and more. The Conservatives noticed that so they have stepped up their Twitter activity too. Trevor's idea, and it is a good one, that is to get as many MPs as possible on to and into Twitter. His site is a great vehicle to gather all the partisan Tweets at a federal and provincial level. Definitely worth visiting and following. Here is what he sent me:
"I am writing in the hope that some of you Bloggers might lend a hand in getting the word out about the new Canadian Political Twitter site http://politwitter.ca . PoliTwitter is a non-partisan service that uses Twitter to connect elected MPs and MLAs with their Canadian constituents with the goal of increasing engagement and promoting open government.
I would be thrilled if some of you could blog about the site and spread the message about getting MPs to join Twitter. I have a list of all the MPs not currently on Twitter that allows anyone to send emails encouraging them to join.
http://politwitter.ca/page/mps_without_twitter
There is also a timeline showing when each MP has joined Twitter:
http://politwitter.ca/page/timeline
Also for you bloggers Politwitter has a widget that you can add to your site with some copy & paste code. The widget shows Political twitter and is customizable. So if you are a Conservative blogger you could customize it to only show conservative tweets.
http://politwitter.ca/page/widget
Thanks for your consideration, I’m running this site not-for-profit, so I need all the help I can get!
- Trevor May - http://network.canadaka.net/
So if you know any MPs who are not on Twitter - get them going and let Trevor know so we can all follow them through PoliTwitter.ca
In all of this political churn I received an interesting email from Trevor May of PoliTwitter.ca. Twitter is becoming a great tool for political networking and sharing by politicians and political parties.
Many politicians are using it, some more effectively than others. The Liberals are into it and using it more and more. The Conservatives noticed that so they have stepped up their Twitter activity too. Trevor's idea, and it is a good one, that is to get as many MPs as possible on to and into Twitter. His site is a great vehicle to gather all the partisan Tweets at a federal and provincial level. Definitely worth visiting and following. Here is what he sent me:
"I am writing in the hope that some of you Bloggers might lend a hand in getting the word out about the new Canadian Political Twitter site http://politwitter.ca . PoliTwitter is a non-partisan service that uses Twitter to connect elected MPs and MLAs with their Canadian constituents with the goal of increasing engagement and promoting open government.
I would be thrilled if some of you could blog about the site and spread the message about getting MPs to join Twitter. I have a list of all the MPs not currently on Twitter that allows anyone to send emails encouraging them to join.
http://politwitter.ca/page/mps_without_twitter
There is also a timeline showing when each MP has joined Twitter:
http://politwitter.ca/page/timeline
Also for you bloggers Politwitter has a widget that you can add to your site with some copy & paste code. The widget shows Political twitter and is customizable. So if you are a Conservative blogger you could customize it to only show conservative tweets.
http://politwitter.ca/page/widget
Thanks for your consideration, I’m running this site not-for-profit, so I need all the help I can get!
- Trevor May - http://network.canadaka.net/
So if you know any MPs who are not on Twitter - get them going and let Trevor know so we can all follow them through PoliTwitter.ca
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