Sask. judge slams social services
Justice Geoff Dufour’s 17-page judgment, issued Oct. 26, outlines the story of "Alice," now 26, whose identity is protected from publication. At the same time, it raises serious concerns about the actions of ministry staff who sought to have her five-year-old son and three-year-old daughter permanently committed to the care of the province and put up for adoption.
The following account is based on Dufour’s judgment, which can be found in full at www.canlii.org/en/sk/skqb/doc/2011/2011skqb404/2011skqb404.html.Social Services officials have said they cannot comment on the facts of the case, or the judgment itself, because the matter is still before the courts.
Right from childhood, the deck seemed to be stacked against Alice. Her early years were “marred by neglect and worse at the hands of parents who were unable or unwilling to care for her properly,” Dufour noted.
She quit school in Grade 5 and was basically on her own by 14, trading sex for alcohol and bouncing among extended family, foster homes and youth facilities. At 16, she started injecting Ritalin, then became addicted to dilaudid, a morphine derivative.
In 2005, at the age of 20, she managed to quit dilaudid by enrolling in the methadone treatment program. But she continued injecting Ritalin and her lifestyle barely improved.
In 2006, she gave birth to her son, “Eric.” His father’s identity is unknown. Alice suspects he was a john.
Social Services apprehended the boy immediately and he spent the first 11 days of his life in hospital. Although she was still involved in the sex trade and injecting Ritalin, Alice “exhibited an extraordinary devotion to her baby,” Dufour noted. She visited him daily, sometimes as much as three times a day.
A short time later, Alice was diagnosed with HIV and hepatitis C. Soon after that, she learned she was pregnant again, by yet another unknown father. Her daughter, “Kay,” was born HIV positive in 2007 and immediately apprehended by Social Services. Once again, Alice spent every day at the hospital with her baby.
Both children were placed in foster homes. Alice stayed in contact, visiting them virtually every week at the Social Services office in Prince Albert. She also managed to visit Eric at his foster home about 30 kilometres outside the city, even though she had no vehicle. But her lifestyle did not improve and her illegal use of Ritalin continued despite a 28-day in-patient treatment program.
At a court hearing in 2009, Alice was “gaunt and dishevelled,” Dufour wrote. She conceded it would not be in the children’s best interests for her to have custody at that time, but she wanted a chance to prove she could change before her children were permanently taken from her.
“Declarations of good intentions and a confidence in the ability to change one’s ways are common choruses in family services hearings. But it is most uncommon for a mother with so many unresolved problems to exhibit the nature and degree of devotion to her children as here,” the judge noted.
Her unusual degree of self-awareness and devotion prompted Dufour to adjourn the case for six months, to give Alice time to prove herself.
Within two months of the adjournment, Alice had moved from tiny, squalid accommodations to a two-bedroom basement suite that ministry officials agreed was clean, neat and “quite appropriate for children.”
In early September 2009, she completed a second in-patient addiction program and began attending Alcoholics Anonymous and Narcotics Anonymous meetings several times a week. She sought out and took personal counselling and parenting classes.
“I was impressed with the amount and nature of professional help that (Alice) arranged without the assistance or urging of the ministry,” Dufour wrote.
In late 2009, Dr. Leo Lanoie, head of the Prince Albert methadone program, diagnosed her with attention deficit hyperactivity disorder (ADHD) and prescribed Ritalin in a slow-release form.
Testifying later in court, Lanoie noted the existence of research indicating that it’s not uncommon for people with ADHD to be drawn to Ritalin and “self-prescribe” it without being aware of what they’re doing. He said he believes that was the underlying cause of Alice’s intravenous use of the drug.
On Jan. 11, 2010, Dufour ordered that Alice’s visits with her children should continue, as long as she was only taking Ritalin as prescribed.
Repeated drug screens found only Ritalin in her system — but the tests also left suspicious-looking bruises and needle marks on her arms. She was not allowed to see her kids for three months, between Jan. 27 and April 27, 2010.
“The suspicion that (she) never stopped injecting Ritalin is a common theme that permeates the ministry’s case. The belief that she was using, I find, coloured the ministry’s view of all else that transpired and was the dominant factor that led it to conclude that (she) could not be a fit mother. I also find that the ministry’s suspicions were groundless,” Dufour wrote. “For reasons not explained, no ministry worker ever contacted Dr. Lanoie or any of the other methadone program health care professionals to confirm or dispel its drug use suspicions.”
On April 20, 2010, Dufour again delayed the reconvening of the trial and made specific orders for Social Services to arrange for Alice to visit her children every two weeks, with the first three visits to take place under supervision at the ministry’s office, followed by visits at her home.
It didn’t happen.
“There were fewer visits than ordered, and, astoundingly, (she) saw (her daughter) for only 35 minutes over a three-month period and no visits at all occurred at (her) home,” Dufour noted. On Oct. 7, 2010, he made another, more specific order for visits every two weeks: Four two-hour visits, then five six-hour visits, then three overnight visits and finally a four-day weekend.
Again, it didn’t happen.
“The daytime visits took place mostly as ordered, but there were no overnight visits and no weekend visit,” he wrote.
When the case resumed in court on Sept. 6, 2011, the ministry maintained its position that Eric and Kay should be placed in the permanent care of Social Services. Two case workers and a child protection supervisor who worked with Alice and her children testified.
“Their critical and unfavourable opinions wilted under cross-examination for the most part,” Dufour wrote. “In the end, the two caseworkers agreed that there were no child protection concerns.”
With that, the ministry pinned its case against Alice on the testimony of clinical psychologist Dr. Brian Chartier, an expert retained by Social Services to do an assessment of her parenting capacity.
Chartier’s assessment relied on three things: A sheaf of documents provided to him by Social Services, an office interview with a battery of psychological tests and a three-hour visit to Alice’s home in February 2011, when he observed her with the children.
Immediately after the home visit, Chartier told a ministry worker, “I will probably not have a lot of negative things to say. With proper support and teaching, she may do fine,” the trial heard.
However, the report he ultimately prepared for Social Services was anything but positive. He recommended the children not be returned to Alice’s care.
“The foundation for his opinion is his belief that it will be too difficult for (her) to overcome the effect of her own abusive childhood and that it is likely that she will end up treating her children the way she was treated,” Dufour noted.
Under cross-examination by Alice’s lawyer, Lisa Wilhelm-Skopyk, Chartier admitted he “fell asleep on the couch during his visit to (Alice’s) home and a ministry supervisor phoned him about a month later to call him to account. In addition to berating him for falling asleep, the supervisor made it clear to him that the ministry’s objective was to have (the children) permanently committed to the care of the minister,” the judge wrote.
“I cannot say whether this call affected Dr. Chartier’s ultimate conclusions but, regardless, it was not appropriate for the ministry to deliver such a pointed message at a time that it had Dr. Chartier at a disadvantage. It certainly appears that the ministry was trying to direct its expert to support its position, something that is highly improper.”
Chartier relied on information that was “unbalanced, skewed,” Dufour wrote, adding the psychologist’s assessment was “tainted by the ministry from the very beginning.”
Like the ministry, he “focused almost exclusively on the negative aspects of (her) past and there was almost no consideration given to her remarkable progress.”
By 2011, Alice had turned a new leaf and “morphed from the waif I saw in April 2009 into someone who was healthy, well-groomed and much more focused and confident,” Dufour wrote. “She has been living in the same nice two-bedroom suite for more than two years and has not injected Ritalin for more than a year.”
She told court her daughter’s HIV status haunts her.
Alice needs more real-life experience with her kids before they can be considered no longer in need of protection — and she would have that experience by now, if Social Services had complied with court orders during the last two years, Dufour noted.
“Looking back, most of (her) time with her children has been in cramped ministry offices: An artificial setting with a supervising caseworker peering over her shoulder and making notes about every smile or grimace,” he wrote.
Dufour ordered Social Services to return Alice’s children to her gradually over a nine-week period of increasing visitation, with full custody to begin Nov. 9, on conditions that she continue methadone and ADHD treatment and have weekly contact with a family support worker. The family will remain under the ministry’s supervision for one year after that.
Dufour wants Social Services to explain why his orders for visits between Alice and her children were not carried out.
Ministry staff wield enormous power under the Child and Family Services Act, which allows them to apprehend any child they think is in need of protection — without a warrant or any other form of judicial pre-authorization, he noted.
“It is months, and usually many months, before the matter comes before the court in any meaningful fashion for a determination as to whether the ministry’s decision to apprehend the children was correct at law. Until then, it is ministry workers alone who determine where and when — or if — the parents will see their children.”
A caseworker who testified at the trial said none of the overnight visits Dufour ordered in October 2010 took place because she felt Alice was overwhelmed during visits. She consulted with her supervisor “and the decision was made to have (the visits) in office,” the caseworker said.
That doesn’t sit well with Dufour.
“A court order trumps the ministry’s discretion,” he wrote. “It was obliged to comply with it. Full stop. Whether ministry workers thought their assessment of that which should occur was more appropriate than that which the order mandated matters naught — it was not their call.”
In such cases, some courts have convened hearings at which individuals were required to appear and explain why they should not be found in contempt of court, the judge noted. Other courts have referred the matter to the attorney general for a decision on whether to prosecute for contempt of court.
In this case, more could be accomplished by giving Social Services a chance to give a “full and frank report” about what happened, Dufour wrote.
“It is the ministry’s choice as to whether it will file a report with the court. If it decides it will, it shall inform the local registrar of such within 20 days and file the report not later than Feb. 1, 2012. If it decides it will not or if the report is not satisfactory then I will consider whether further action is required.”
Social Services officials say they can’t comment on whether the report suggested by Dufour will ever be produced.
“What we can say is that court-ordered conditions regarding child visitation can vary from being very general to being very specific in terms of dates, times, locations for the visits, and we are continually reviewing our processes in order to improve the services we provide to children, youth and families,” said Andrea Britton, executive director of child and family services delivery.