A ‘vicious, vicious cycle’ continues

(This post is re-blogged from the Winnipeg Free Press “Crime Scene” blog.)

I have a dream about what I would do if I were to ever win the lottery or otherwise have the good fortune to sign my own paycheques, as it were.

I would travel the province and country for at least two full years to examine the youth justice system as only considerable time and complete, undivided focus, could allow.

I spoke last week to a great group of University of Winnipeg students who are studying the justice system, the court process and criminal law procedure in depth.

They’re looking closely at issues including disclosure, wrongful convictions and other serious systemic problems that can happen and, why.

It was only in the dying minutes of my time with them that I remembered the most important thing I wanted to tell them.

That being: When it comes to youth justice and all that entails in the true meaning of the word “justice,” I believe we’re failing and we either need to do better or find new tools and ways of doing things. I’m just being honest.

We’re not failing in the sense that there aren’t great people, from correctional officers and social workers to lawyers and judges, grinding it out every day, doing the best with the resources they have to work with. There are, and they don’t get nearly enough attention or accolades for their work.

I mean we’re failing systemically. In terms of the Youth Criminal Justice Act’s stated intent to promote a just and safe society and long-term protection of the public by focusing on rehabilitation, and not punishment, as a first principle for young offenders, who have diminished moral culpability because of their ages.

More importantly, we’re failing in how the youth criminal and child-welfare systems intersect and don’t appear to share each other’s objectives.

Well, they may in principle. But in practice, as I’ve continually seen over the years, it’s a very different reality entirely.

I’ll give you just one small example of this.

I call it the ‘how kids fall into a black hole’ scenario. Followers of my blog over the years are familiar with my coverage of this issue, how youth jails become ‘warehouses’ for child-welfare and mental health concerns

This sad drama appears in various permutations, but almost always involves a bewildering and (I say) shameful lack of communication and co-ordination between Child and Family Services and the criminal youth justice system.

Interestingly, it’s seldom that you can just point a blaming finger over this issue – and that’s not my intent here, really. But it never seems to change.

Here’s this week’s example. One where it takes a little time to tease out all the complexities at play. Apologies.

It also bears mentioning that as a member of the public, one doesn’t often get the full, fleshed-out picture in youth court.

Due to CFS privacy and YCJA access provisions, there’s no opportunity to access reports and other documentation which could provide greater detail as to what’s really happening. So you’re left sometimes with what you’re left with in terms of what the various actors put on the record.

But the lack of access to documents doesn’t mean that the issues aren’t valid, that they’re somehow just misunderstandings borne out of a lack of public disclosure.

The problems are real.

In the spring of 2013, the parents of a criminally-involved 14-year-old (‘DD’ we’ll call him here) sign a voluntary placement agreement with CFS for six months. His folks have seven other kids at home and DD’s acting out causes them to ask CFS for help. CFS – Southeast CFS to be exact – steps in to take him.

He’s the only one not living in care (save for an older sister who also came into care due to a pregnancy). He has suspected FASD and ARND, cognitive issues which make him more apt to act impulsively.

In his own words: “I do before I think.”

In May, he’s handed a year of probation for a break-and-enter, failure to appear in court and failing to comply with a bail order. The sentence, given that it’s his first-ever, is a year of probation. In June, he’s arrested again for breaching probation and given a few hours of community-service work.

In September, he pleads to more probation breaches and gets more community-service hours.

What’s important to note: The probation breaches are all because he leaves the various emergency hotel shelters CFS is routinely placing him in, often returning home because he’s upset at the fact all his siblings remain there and he’s not.

Since he came into care, he’s been shunted between eight hotel placements.

It’s not all CFS’s fault for this, however. Court hears more “stable” foster placements can’t be had for him until he gets his behaviour in check. Yes, he’s 14, but some of the responsibility has to fall on his shoulders.

But arrested again in early October, DD plummets into the black hole.

It happens like this: The Crown, rightfully, won’t consent to bail him out unless CFS comes up with a better residence plan than hotel rooms for him to live in.

And it’s pretty clear to the defence it would be a hard sell to a judge to release him if there’s nothing new in DD’s bail plan to satisfy the court it just won’t all end up with him collared again and returned to the Manitoba Youth Centre.

But at the very same time, the skimpy nature of DD’s criminal past and the current charges he’s facing makes himineligible for custody at all if he were to just plead guilty and deal with his charges. In essence, we’re criminalizing a child, largely because of systemic factors beyond his control. I see that as a big problem.

And CFS, you ask? They’re hard to track down.

Now, over the years, I’ve heard more than a few defence lawyers complain that they can’t get CFS down to court to answer questions about one of their youth clients.

Despite their complaints, I can count on one hand the number of times I’ve actually seen a judge subpoena a social worker — no small thing — to attend and talk about what the heck is going on with a young person.

It happened this week in DD’s case. On Tuesday, the case comes up in the afternoon, and Judge Catherine Carlson is told his defence lawyer was asked by another judge to call DD’s social worker and get her to come to court and answer questions about the hotel “emergency” placement plan for him. The CFS worker, in the past, had been in court to support him.

The lawyer is candid, says she called and the worker replied, “she’s not available today — she’s not available any day this week and the earliest she could attend is Tuesday (the 12th). And so, she’s not available to the court.”

As well, there is no non-hotel plan available at this time, the lawyer says she was told.

The worker was asked if there was a day she could “squeeze into her schedule” but the lawyer was still awaiting a call back to see if that was possible.

Is there anyone else from the agency that could come? Carlson asks. This isn’t likely. Before her, Carlson has an in-depth forensic psychology report outlining the concerns with DD and CFS’s continued use of a hotel-placement plan for the future.

The Crown relays its position again. It would consent to DD’s bail if there was a “proper plan” in place, but, “we’re doing (DD) a failure because we keep returning him into the same poor circumstances,” the prosecutor says. The hotel placements are “not adequate.”

He says the court has the option of mandating CFS to attend.

“I think that what’s troubling to me is the worker did come down and express concerns, which is why the forensic (report) got ordered. But then she didn’t participate in the forensic and… it seems… that just at this point there’s more questions than answers… I guess we’re stuck.”

“Somebody’s got to come down and answer what’s going on here.”

Judge Carlson agrees: “To say that she’s unavailable till Tuesday is concerning knowing that there’s a young man in custody and needs a better plan.”

So, a subpoena ordering the worker into court for Thursday is drawn up.

That day, the worker duly appears, and hears now from Judge Carena Roller.

“There is, for whatever reason, a lack of plan… he’s remaining in custody when he’s not eligible for custody. That’s a problem for me,” Roller says.

The forensic report hints at the fact an undiagnosed medical or psychological issue is at play in DD’s situation, an issue preventing him from complying with his court orders and therefore prompting his return to custody.

“The irony is we don’t know that because there was no response from the agency, no background provided to the assessor,” Roller says.

Ah, the worker says, that’s not entirely true. She was in touch with the doctor who assessed DD. There was another report done. The other one wasn’t prepared for court purposes and looked at his needs in the community. The worker insists that second report was sent to the doctor who did the forensic evaluation.

Regardless, DD’s impulse control is “severely impaired,” the worker says. It’s possible medication may help calm him — but doctors won’t prescribe it until they’ve had up to three weeks to observe his behaviour. That’s been a problem because DD goes AWOL, she says.

As for where he’ll live upon release, the worker says as follows: “Placement is determined on the day of release based on what beds are available in the system. I can tell you what’s available today, but I couldn’t tell you what would be available on a different day.”

What’s available today, Roller asks.

“An emergency shelter.”

Is that 24-hour supervision?

“No. The shelter we’re talking about is a 16-bed emergency shelter where he would be expected to attend the day program (school)… we haven’t been able to register (DD) in school because he tends to be AWOL before we can stabilize a program,” the worker says.

Why aren’t we talking about a locked setting then?

“For that to happen, we need a social history and approval for that level of funding,” says the worker. “We haven’t had that yet. Now, with these reports, we’re more able to support that application. And that is definitely a plan underway.”

When asked, the worker couldn’t say what date DD’s six-month voluntary placement with CFS expires. “Probably” in the next couple of months, she says.

Roller is curious (as we maybe all should be about a child in care): Why doesn’t CFS already have a social history on DD?

The worker’s answer is evasive. “In order to apply for locked facility… we have to be able to support it by behaviours,” she says.

The hearing is then stood down for a few minutes. A behind-the-scenes discussion results in DD pleading guilty to a handful of breaches and being sentenced to a few extra hours of community service work.

In his sentencing submissions, the Crown sounds unconvinced anything will change. Some of DD’s issues are systemic, he says. Candidly, some are also his as an individual, he says.

“Best we can hope is he goes on his way and starts to listen to his probation officer.”

DD’s defence lawyer tells Roller the youth is confused and upset at the fact he’s not allowed to be at home with his family and that’s why he flees from his hotel placements.

“He thinks that if he acts out and leaves these shelters they’ll give in and let him go home – that’s not the case,” she says.

By now, he’s spent three weeks of his life in custody. The lawyer questions how it appears the CFS position on finding a proper placement is somewhat incumbent on him, based on what the social worker has said. It shouldn’t be “all on him” to prove his way out of the emergency hotel shelter situation, the lawyer says.

“It’s turning out to be… a vicious, vicious cycle.”

In addressing DD, Roller seemed to agree.

“I know that you haven’t had a stable placement since you came into agency care,” she told him. “And I’m convinced that the people who are working with you aren’t talking to each other like we need them to do. We need you to have a team in place to work together and I hope that’s what’s going to happen going forward. Because we need your behaviour to improve,” she said.

She also reminded him of his CFS worker’s implicit promise to the court to get moving on finding a more palatable solution for him, to find him at least a place, “where you can unpack.”

“And she’s going to do all of that right away because we don’t want you bouncing around,” said Roller.

———————–

If you’re still with me by now, you’ll have perhaps noted some of the questions DD’s case — but one of many hundreds of youth court cases in Manitoba — raises.

At the top of my mind are:

  • How can a child be taken into agency care and the agency doesn’t have a “social history” on him months into his stay?
  • What exactly is a “social history?” It was clear his parents called in CFS, so why don’t they have such information at hand?
  • How can a social worker be subpoenaed into court and not have exact answers (like the date of expiry of DD’s placement agreement) at hand about the case she’s there to talk about?
  • Is a hotel room for a potentially mentally challenged and certainly confused teen boy really the best we can do for him? It personally strikes me as disingenuous to say it’s somewhat incumbent on DD, given the circumstances as presented, to “earn” his way out of the emergency shelter system. If it’s the case that it is, then isn’t that a problem? It strikes me DD was stopped into care by way of a voluntary agreement with no case planning as to what to do with him once he was there.
  • What prevented the two systems from “talking” to each other in this case and perhaps finding a better — or at least more expedient — outcome here? Resources? Stubbornness?

We can say “justice” has been served in the sense that a sentence was meted out, but I think we all know it wasn’t here. I fully expect to see DD back on the court docket in the coming months.

There’s many, many more questions, obviously. Finding answers without taking a long and focused look will be impossible.

The “vicious, vicious cycle” will continue until there’s pressure enough to end it.

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Hot-potato girl (part three) and our measures of ‘success’

Screen Shot 2013-03-27 at 10.56.14 PMWhen it comes to Manitoba’s youth justice system — and the unbelievably sad kids it often has to try and “fix” — I’ve learned one should take small successes and trumpet them.

And it dawns on me today that the case of K. falls into that category.

I wrote about K. — a high-needs permanent ward of CFS — a few months back. (It’s not her real initial).

Her tale triggered some consternation from regular readers of this blog (one commenter called the process of her case ‘disgusting’).

In a nutshell, K’s story was about what happens sometimes in our youth justice system — and the failures of systemic  concerns outside the court process to live up to the wishes and requirements of the court; that the youth justice act specifically states the criminal justice system is not to be a proxy for child-welfare concerns.

(And her concerns are immense. A short list goes like this: Violent history, FASD diagnosis, ARND, high suicide risk, broken family which “basically abandoned” her, mental illness, anxiety disorder).

You can read what little I know of K’s heartbreaking and concerning story here. And a follow up from a few days later here.

And it didn’t surprise me to learn last week that really, despite all this, nothing changed right away.

K. (remember, she’s 13 and an abuse survivor) was still released from the youth centre to go and live in a downtown Winnipeg hotel as Child and Family Services had no other placement for her.

(It’s partially her fault because her conduct had caused chaos at other bona fide foster placements, at another she was sexually abused and she was removed).

But the fact is the fact. Judge Mary Kate Harvie ordered specifically late last year K. was not to be placed by CFS or the provincial corrections department in a hotel and yet it continued to happen.

Another veteran judge, Marvin Garfinkel, lambasted lawyers and CFS over this continuing to happen in the spring and still, K. gets placed back in a hotel.

And again, this “plan” for her, however temporary the intention was for it to be, just didn’t work.

May 9, 2013: K. is at her latest hotel placement in downtown Winnipeg and a fracas breaks out with a worker over a perceived unfairness involving a cellphone. She lashes out, tosses a glass and hits the worker with it. After heading out of the hotel room, K. smashes a safety window, picks up a fire extinguisher and discharges it at another worker who tries to intervene in the hotel hallway.

Cops are called. She’s hauled off back to the youth centre and held in custody for what was termed a “freak out.” It seemed the cycle was simply doomed to repeat.

But then, something changed. Island Lake CFS came through with a placement on a rural farm. There’s animals there K.’s learning to bond with. She’s given structure and support and monitoring. The plan is she may actually return to school in the fall.

That’s some success you can hang your hat — however cautiously — on. But another success I noted was in how Judge Cynthia Devine treated K.

The relatively new judge, who also says grew up on a farm, spoke to this girl — noticed her, and noticed how this young offender with a horrific background replete with social (not criminal) problems spent two further months in custody till the placement came through.

Devine described this development, rightfully, as appalling. Because it is.

Devine saw how K. could barely utter a squeak, and hunched herself over in a defensive posture in the witness box throughout the hearing.

“It is absolutely no wonder that she comes before the court today having armed herself trying to protect her interests … little wonder that she freaked out. It is sad that she was in custody for so long on these charges,” Devine said.

“I’m appalled that this young girl was in custody for two months.”

Devine saw that the whole proceeding was likely just a bunch of gibberish to K., saying it was probably a “lot of noise” to her.

Devine saw K. And I got the sense her soft-touch approach might have made an impression.

To me, given some of the things I’ve seen over the years in youth court, that’s a success.

*[Edited slightly for typos on July 25 at 9:30 p.m. JST]

Child-protection “a safety net, not a drag net” Queensland child-welfare a Manitoba mirror

(Phoenix Sinclair)
(Phoenix Sinclair)

As players in Manitoba’s Phoenix Sinclair Inquiry prepare to return to hearings later this month to present their final submissions to Commissioner Ted Hughes, a sweeping review of child-protection in the Australian state of Queensland has wrapped up with a full report on problems and solutions now in the hands of government.

From even just  brief reading of the report [presented in full below], those involved in the PSI would do well to give it full, close reading.

It seems there’s an uncanny wealth of analogies to be made between their situation and the one Manitoba’s in.

Some quick excerpts:

1) “The enduring net effect of the implementation of recommendations from previous inquiries has been a systemic shift towards statutory child protection. This shift has been reinforced by a growing risk-averse culture in the department that promotes a forensic, rather than therapeutic, approach to child protection. Instead of investing in family support and other secondary services, departmental funds since 2000 have been directed to meeting the ever-increasing demand on the tertiary system.”

2) “According to most of the indicators currently used by policy makers to measure activities designed to safeguard vulnerable children, Queensland’s child protection system is under mounting stress. Over the last decade:

  • the number of child protection intakes has tripled (from 33,697 in 2001–02 to 114,503 in 2011–12)
  • the number of children in out-of-home care has more than doubled (from 3,257 in 2002 to 7,999 in 2012)
  • the rate of Aboriginal and Torres Strait Islander children in out-of-home care has tripled (from 12 children per 1,000 population in care in 2002 to 42 per 1,000 in care in 2012)
  • children in care are staying there for longer periods (with an increase in the proportion of children exiting care after one year or more from 38 per cent in 2001– 02 to 64 per cent in 2011–12).

In addition, while caseloads for child protection workers have fallen in recent years, they are still exceeding a manageable and sustainable level, and lifetime prospects for children leaving the care system continue to be poor.

Community concern about this unsatisfactory state of affairs led to the current government making an election commitment to review the child protection system with a view to finding the best possible outcomes for our most vulnerable children and their families.

3) “[T]he Commission is convinced by the argument (backed up by evidence) that wherever possible it is better for the child to stay at home — better for the child, better for the family and better for society as a whole. By supporting parents, we not only keep families together but we give parents an opportunity to contribute to their community.

Queensland’s situation is not unique. Similar problems can be found throughout Australia and across the western world. However, Queensland’s fiscal situation has made it imperative that it find out what is causing the system to malfunction, and to identify an affordable remedy.

I note of interest the title of the massive Queensland report: “Taking responsibility.”

I’ll be reading it in full with great interest. July 22 is the date the PSI is due to be back in session.

Phoenix in hindsight: Two Reviews

 

(Phoenix Sinclair)
(Phoenix Sinclair)

Not a ton to say today, but simply wanted to alert PSI followers to the fact the good folks on the inquiry staff have put into the public record in full a number of different reviews and reports which were conducted into Phoenix’s death after it was discovered.

Reading them top to bottom gives you a good sense of the serious issues Child and Family Services and their clients dealt with in the pre and just-post “devolution” phase, and, naturally, the quality of case work and decision-making conducted in Phoenix’s sad case.

What I’ve found most interesting is the marked difference in tone between the two reports.

One was conducted by a commissioned child-protection expert from Ontario, Andrew Koster, and co-written Billie Schibler.

The other, also written by a veteran social worker — Jan Christianson-Wood — was authored for Manitoba Justice/ the Medical Examiner’s Office.

Read them and you’ll see what I mean about tone. Koster’s, while insightful, appears far less blunt in assessing the quality of CFS work.

In any event, it’s fascinating stuff — rare and in[hind]sightful looks at Phoenix’s case and her interactions with the CFS system.

It also bears remembering that these reviews were not shared with workers involved in Phoenix’s case. By and large they only saw them — and then only in bits — in their preparation for the inquiry.

Virtually all, to my memory, said they wished they had been.

I tend to agree they should have been disclosed to them — and to the public too, at least in some form.

More to come on this at a later date.

A further example of youth jails as child-welfare warehouses, or the girl who became a hot potato PART II

Screen Shot 2013-03-27 at 10.56.14 PM “It’s not recommended. It’s not a polite term. It’s not a recommendation —  It’s an order!” — Provincial Court Judge Marvin Garfinkel

Last Thursday, I wrote about this girl (do read before continuing further) — who’s being held at the Manitoba Youth Centre because no suitable Child and Family Services placement can be found for her.

This, despite the fact Canada’s youth justice laws prohibit young people being detained for child-welfare concerns. The girl isn’t an ordinary case. She requires a specialized placement because of her behavioural and other issues.

Again, she’s just 13 and a permanent ward of CFS.

A few readers contacted me via email and other means to express their concern and, in some cases, disgust, that this was happening.

The case, as the previous post made clear, drew Judge Marvin Garfinkel’s ire, largely because it was clear the powers that be in the CFS or justice system were either unable or unwilling to follow a court’s order regarding her placement, one issued months ago.

Her probation order specifically prohibits her from being placed in a hotel room by CFS or any other agency.

But yet, one of the reasons she was back in custody at a jail is because she was placed in a hotel room after the probation order — a legal document setting out supervision requirements as determined by a judge, not CFS or the province — was issued.

[More on this below. However, note carefully the bolded section of the Crown’s statement to the court].

Thursday, her regular lawyer isn’t in court, but an experienced associate of his is.

Garfinkel, sitting again, is told the two advocates spent the afternoon Wednesday working on a motion which was prepped and ready to file — ostensibly trying to get the ‘provincial director’ to act — and more discussion with Crown.

Also in court this day are a lawyer for the Island Lake CFS agency and a worker, and also a representative from Winnipeg’s B&L Resources for Children, Youth and Families.

There’s still no placement for her, Garfinkel is told.

Still, the Crown is ready to consent to her release.

Garfinkel is told the agency has made attempts, but there is no placement — they are looking into a number of issues.

But, there’s no grounds to keep her in custody as far as I’m concerned, her defence lawyer says.

The lawyer for CFS then steps to the podium and fills the judge in on what’s now happening.

Here’s the bulk of the exchange, verbatim.

CFS Lawyer (CFS): The agency has been working quite a bit on trying to find a suitable placement for [girl] — obviously there’s some high needs involved here.

Garfinkel: Is the child for whom there is an existing order of judge Harvie?

CFS: Yes. I’ll just give Your Honour some more background.

Garfinkel: I recall this.

CFS: This was the matter where Judge Harvie ordered there was to be no placement in a hotel room.

Garfinkel: Yes.

CFS: And you brought to [Lawyer’s] attention. Just so your honour knows the full story, [The defence lawyer] also spoke with … the provincial director yesterday, and brought this to his attention and he’s working to find a placement as well — he’s now aware that she’s not to be placed in a hotel. We also spoke with Corey La Berge from the Child Advocate’s office and [the office] has a worker assigned … and Mr. La Berge is making attempts to assist with a placement at well.

[The worker] has thoroughly exhausted institutional placements. All of them advise that either they don’t have room or they’ll be able to meet her criteria. However, As indicated, there is a case manager here from B&L and a possible foster placement. I’ve been speaking with them this morning. It is anticipated a timeline of about a week to transition [the girl] to that home should that be a suitable placement. It sounds like a good plan is in place there. Of course, the issue we’re faced with today is [the girl’s] imminent release today. [Another person] has made some inquiries to [a program], which is also a placement — they advise they have a place available but they’re, as we speak, reviewing [the girl’s] application, which I should point out was actually made a couple of months ago and no response was ever received from them. So they are re-reviewing that to determine if that spot can be taken by [the girl]. And we are also waiting back to hear if any possible Places of Safety can possibly take her today.

Obviously we don’t want her to remain in custody anymore than anybody else. At the same time, we want to make sure she has a suitable placement to go to. So that is where we are today. My hope is that we can find at least a temporary placement as soon as possible today so that she can then be transitioned into the other home.

Garfinkel: OK. Thank you for your comments.

Crown: With respect to the matter on the docket … it involves three counts from a date of Jan. 24th of this year [assault with weapon and two breaches]. The Crown will be entering a stay of proceedings. It’s because of what’s already been touched upon by my learned friend. The order of Judge Harvie specifically stated that a residence was supposed to be found and not a hotel placement. This incident occurred while [the girl] was a resident at [a downtown hotel]. After my read of the file yesterday, based on that fact alone, I decided that a stay of proceedings will be entered on that matter. And for that reason.

They then proceed with a consent release hearing — she’s officially ordered freed on an undertaking. The undertaking says she must reside as directed by CFS but not be a hotel placement [but the probation order indicates it’s the provincial director’s responsibility].

Garfinkel: I want to thank you all for coming.

Yesterday, we were a little disturbed by circumstances that existed. Quite candidly we didn’t have the information that we have now. And I think you have to remember that this facility is a criminal justice facility. It no longer is a place of shelter under the old Child Welfare Act and the Juvenile Delinquent’s Act. Parliament has made a clear-cut distinction between criminal proceedings and child-protection proceedings. Now, many times, the people involved have both child-protection issues and criminal justice issues. But we have to try and delineate what’s what and what’s what. In this instance, we have this young person accused of committing crimes. She is absolutely presumed to be innocent. She is not to be detained unless the Crown can show cause why detention is necessary. Moreover — she is bound by a probation order which requires her to reside in a certain place. That place is a positive with a negative attachment.

The positive is: she is to reside where directed by the provincial director. The provincial director is a criminal justice official whose office is created by federal legislation. The negative is, that place of residence is not to be a hotel. If she doesn’t like that order, she can instruct her lawyer to appeal it. But until it’s appealed — that order is valid and it must be complied with. None of you here, as I understand it, are representing the provincial director. But each of you may have some conversation with a provincial director and should tell that official that you’re now aware of the order. And the provincial director shouldn’t try to convince you or persuade you to disobey the order …

Defence lawyer: The no-hotel clause came from a [forensic psychologist] as part of a forensic assessment.

Garfinkel: I’m not arguing. Judge Harvie put it into the order. It’s a valid order until it’s repealed or reversed. It must be … if I — let’s say I wanted to do something silly, like say, ‘all of you are in contempt, you’re going to jail,’ – You go to jail. The Sheriff’s officers will physically take you there until the order has changed. 

Lawyer: I just want to make it clear to the agency that that’s not likely to change — even if it comes before a judge because it’s been recommended, it’s be ordered. ..

Garfinkel: It’s not recommended. It’s not a polite term. It’s not a recommendation — [bangs fist down] It’s an order. It’s terrible! (obviously referring to how the probation order hasn’t been obeyed). 

Lawyer: … I’m just saying if anybody thinks there’s going to be a variation to the probation order, everybody needs to keep in mind that there were very good reasons for Judge Harvie ordering that. And it’s not likely that she would change that is what I’m saying.

—-

So there you have it. For weeks, this girl has been languishing in jail, and suddenly, everyone’s now on board trying to find a solution.

I can’t speak to what caused the dramatic turnaround in attention the girl’s case suddenly received, but it’s heartening to see.

That said, it was clear her ethically and legally-questionable jail stint wasn’t likely coming to a quick end at the end of Thursday’s hearing. Efforts were being made, but no placement was available yet.

Now, what I hadn’t realized when I wrote the original piece about this case was that she was in jail partly because of breaches and other charges stemming from an illegal placement in a hotel room taking place more than a month after Judge Harvie’s original order forbid the provincial director (and by virtue of the order, CFS) from placing her in a hotel.

Nothing’s perfect in this world. I get it. And I suspect that the high needs of the girl’s case played a major role in CFS or the provincial director just trying to find her somewhere to stay in the interim.

But the fact is, this case sends a number of concerning messages to the general public.

Not least of those being: If the powers in place to enforce court orders can’t or won’t obey them for whatever reason, then how can we expect anyone else — like offenders — to follow them either?

It’s a black mark on the administration of justice, in my view.

The courts and offenders often wear blame directed at them from the public and the media when people placed on probation reoffend.

I think it’s clear from this one small case that the blame may lie elsewhere, sometimes.

And, more troubling: the above shows how for some of Manitoba’s roughly 10,000 kids in the care of the state, it’s not all that difficult to fall into black holes not of their making.

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A further example of youth jails as child-welfare warehouses, or the girl who became a hot potato

Screen Shot 2013-03-27 at 10.56.14 PMAs a golden rule, Canada’s youth criminal justice system is not to be used as a substitute for the child-welfare system.

But it happens. And it happens here in Manitoba. And it happens for a lot of reasons.

Apparent lethagy by social-services and other government agencies stretched beyond thin in terms of resources is among them.

Sometimes, it appears it’s ineptitude.

Other times, maybe the problem presented is too complex for the system to handle with what’s available in terms of resources.

Today, a concerning case came to light in youth court. Concerning in a systemic sense.

It involves a troubled 13-year-old girl, a permanent ward of an aboriginal CFS agency who is a young person who is clearly in need of specialized treatment and assistance due to her cognitive and behavioural problems.

For weeks, she’s been sitting in custody at the Manitoba Youth Centre despite everyone agreeing she could be released on bail.

The problem, as I came to see it: nobody appears able to figure out whose problem she is.

There were few answers to this today, even with two CFS workers subpoenaed to be there in hopes of getting to the bottom of the issue.

Ultimately, they weren’t asked to utter a word.

Here’s what’s happening.

In December, she was placed on a probation order by Judge Mary Kate Harvie.

One of the conditions of that order — and this is key — was that she “reside as directed by the provincial director [of youth corrections]” but specifically states she is not to be placed in an emergency CFS placement hotel room.

Remember this. It’s key to what’s coming below.

She’s released, but breaches by the end of January and is brought back into custody at the Manitoba Youth Centre. A bail conference is held and a placement for her is ‘arranged’ at a specialized group home. That placement fails to materialize and it may never.

Because there’s no placement there, she’s still being held in a jail, in my view, illegally and unethically.

Her case — and the one immediately prior where another lawyer was requesting a subpoena for CFS workers who were utterly unresponsive to calls for information about her juvenile client — set Judge Marvin Garfinkel off on one of his famous rants.

Unfortunately, much of it was directed at the girl’s defence lawyer. While I don’t necessarily agree with his approach, Garfinkel — a stickler as a youth court judge when it comes to following the legislation [gasp!] — had a lot of interesting things to say.

Garfinkel himself authorized her release with consent of the Crown on March 15. But she’s still there, in a jail. CFS, it appears, is unable to find another place for her for an unknown reason.

And the provincial director of youth corrections? Nobody in court even seems to know who that is, exactly.

Here’s the lengthy discussion which took place today, mostly verbatim where appropriate.

Garfinkel, to defence lawyer: What have you done to get the agency to find a placement?

[There’s then some discussion of whether the Children’s Advocate’s office is involved. It is. She’s been appointed an advocate, who wasn’t in court today to, you know, advocate, for her. ]

Garfinkel, to lawyer: Why not make a motion to compel the agency to do what it’s supposed to do [in the Court of Queen’s Bench]? “The agency is supposed to step in when when children are in need of protection. The agency has a responsibility to provide a place of appropriate shelter … Judge Harvie has mandated that a hotel is not an appropriate shelter … so consequently, somebody has to find her a proper place.”

Then Garfinkel’s attention turns from CFS to the mysterious “provincial director” as named in the probation order, and we start to get down to what may be the real issue.

“Why isn’t the provincial director finding a placement? You mean in the whole province of Manitoba there isn’t one proper placement that would be willing to accept this child? I’m not going to believe that.”

Lawyer: I have difficulty believing that as well.

Garfinkel: Then do something.

The judge then spoke of how with the advent of the Youth Criminal Justice Act, it forbid jails from becoming warehouses for kids due to CFS-related concerns.

Garfinkel: “This detention facility is not longer a place of shelter for child-welfare recipients … It used to be called the Child Welfare Act and agencies had to look after the welfare of young people — as it was determined that putting young people in this detention facility — which is designed for young offenders — is not appropriate for young people in need of care and treatment. So they go someplace else.”

It’s not good, Garfinkel said, to have criminals mingled with kids simply in need of care.

They pick up certain skills and habits and mindsets that young people shouldn’t have.

Then it appears the judge realizes he’s coming close to falling into a trap he should avoid for a host of sound reasons: that is, he’s becoming the de facto advocate for the girl. His voice booms.

“I’m not advocating for this young person. What I’m trying to do is stimulate counsel to be adversarial. Don’t sit back and tell me the problem. I can’t solve it today. But you can take steps to try and get a solution.

I’m yelling. I apologize. I allowed my emotions to get involved. I’m going to take a breath and speak lower …

What you have to do [defence lawyer] is take steps. You, defence counsel for this young person, have to take steps.

You make motions, you write the Children’s Advocate — is the agency [Island Lake CFS] — governed by the Northern Authority or the Southern Authority? (It’s the northern) … then get them involved. The Northern Authority is supposed to supervise individual agencies.

Look. The Child and Family Services are under a microscope right not as a result of the Sinclair inquiry. They don’t need nor do they want any bad publicity.

You file a motion in the appropriate court — the newspapers check for the list of the filings every day. 

[Not necessarily true for child-protection or youth matters as we have limited access but…]

The agency will get moving. But the agency — as I understand what you told me — doesn’t have control of this matter. What you told me is that the probation order says that she is to reside as directed by the provincial director. The provincial director has control.

Lawyer: I think strictly speaking, that is correct but I would suggest … pragmatically the provincial director takes their lead from the agency’s suggestion.

Garfinkel: I don’t accept that. Look at what Parliament did in the Youth Criminal Justice Act. Compare it to the old Young Offender’s Act and the even older Juvenile Delinquent’s Act — Parliament completely differentiated the criminal from the civil and child protection. At one time they were all mixed together. They didn’t know what it was.

That’s no longer the case. When Parliament says the provincial director — who is a criminal justice official — has a role to play in the placement of this child, that supersedes the guardian responsibility of an agency.

It has to. For the limited time that the criminal justice system has control over this young person’s life. You have to get the actors acting. What do you want me to do today?

Lawyer: We have no placement for [her]

Garfinkel: That’s not acceptable. The Crown is not showing cause for detention except to the extent that she has a residence.

Lawyer: A bail conference was called and suggestions made for her placement. We could call another, but “at this point, the agency has provided no options except …”

Garfinkel: Based on the information you’ve provided me, it’s not up to CFS to provide a placement. Do you want me to ignore Judge Harvie’s order?

Lawyer: No.

Garfinkel: I’m not going to reverse it or change it … so then comply with it. If we were talking in a back room, I wouldn’t use polite language. The provincial director has to get up off his chair, or her chair and find a placement. You can’t ignore Judge Harvie’s order. How can you do that?

Lawyer: It’s not an effort to ignore Judge Harvie’s order …

Garfinkel: Well then, why isn’t the provincial director providing a placement? There has to be a placement. If not, make a motion in the appropriate tribunal. It’s adversarial.

Lawyer: Of course.

Garfinkel: Is the Crown taking a position on this?

[An audible deep sigh is heard in the court — it’s unclear if this emerged from the Crown.]

Garfinkel: As I understand it, the Crown is consenting to release provided there’s an appropriate placement.

Crown attorney: That is our — yes.

Garfinkel: So I would have thought an appropriate placement would have been found the day after Judge Harvie made the order. Who disobeys a court order?

Lawyer: She hasn’t been in custody that long, Your Honour.

Garfinkel: I don’t care.

Lawyer: She has been in custody for longer than I would think is appropriate, but she hasn’t been in custody since the day that the order was put in place. She was released initially.

Garfinkel: [Mr. Lawyer,] I have to tell you, I’m very naive. When I was practising law, when a judge gave an order  – I don’t care if it was from the provincial court, the Court of Queen’s Bench or the Court of Appeal — if a judge made an order, we busted our backs — If I was talking to you privately, I might use different words — but we would bust our backs to comply with that order.

Now, the provincial director works with the criminal justice system. How can the provincial director ignore Judge Harvie’s order?

Did the provincial director make a motion on his or her own behalf to say, ‘Hey, we can’t comply with this order, Judge Harvie, please change it. Is there any such motion?

Lawyer: No.

Garfinkel: So get the provincial director to do his or her job. Why are these two people [the subpoenaed CFS workers] sitting in court? You want me to yell at them?

Lawyer: No. I’m not suggesting that.

Garfinkel: Good. Because I’m not going to. I’m yelling at you.

[The discussion continues along the same vein for a bit…]

Garfinkel: Who is the provincial director? That person should be in the courtroom. Why isn’t that person — I’m not using the word contempt – but I’m (still wondering) why isn’t’ the order being complied with. What’s the answer?

Lawyer: I don’t know.

Garfinkel: Well you should know. Do you know who the provincial director is?

Lawyer: I do not.

Garfinkel: Why not? Isn’t that — I have to say I’m a little bit frustrated inside. Just before, we dealt with another case where it seems things aren’t going smoothly. But it’s adversarial. You’ve got to fight.

Lawyer: I appreciate that.

Garfinkel: [Remands the case for one day.] We’ll see what happens then. Thank you. And thank you for the opportunity to vent.

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So, what can we take away from the above?

Reflecting on it, I see Garfinkel wasn’t haranguing the lawyer per se, but imparting wisdom: Fight. Advocate. Even embarrass the powers that be, if necessary, into doing something.

The lawyer — who I’ve seen take on a number of tough cases for clients and duke them out in court in the recent past — may be newer to the profession, but he’s anything but lazy.

But from my perspective — that of a concerned member of the lowly public, there’s so much more to this exchange.

You can take away from it what you will.

But how is it at all right in any way that this one officer of the court has to go to such lengths to force powerful government agencies into upholding the law and doing what’s ordered of them in the first place?

At the end of the day, it was he, the defence lawyer, present in court, accompanied by two child-protection workers there under force of a subpoena, in hopes of seeing some action on the case.

The provincial director of youth corrections, whomever that may be (curious how nobody knows), or his or her agent, certainly wasn’t.

And the girl? Just a factor, a sad variable in a massive machine which, to her, likely seems more like a system of hot potato then one of actual justice.

CFS can’t act because it’s the provincial director’s problem to act on, but many are under the impression that his/her office takes its lead from CFS.

And in the end, it falls to the courts to sort out the mess, but judicial orders get countermanded or ignored and nobody cares.

And we wonder why kids wind up returning time and again to youth jails, and then adult prisons?

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“There is no damned degree that will ever teach you humanity.” A dialogue on CFS

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People. From all walks of life. In one room. Talking about Child and Family Services in Manitoba.

Setting aside the fact Sunday’s meeting of minds at the River Heights Community Centre was sponsored by Manitoba Liberal Leader Dr. Jon Gerrard — he’s been one of the NDP government’s harshest critics on the CFS portfolio — I couldn’t help but be struck by the event just because it was happening at all.

Again: People. From all walks of life. In a room. Talking about CFS in Manitoba.

No intervening high-minded lawyers, no awful tragic child’s death anchoring it all and (virtually) no ranting and raving, or for that matter, much finger-pointing.

If there were one thing I could say I took away from the discussion (aside from the oddity that people rationally discussing a very live and vital issue in our society is somehow a marvel to behold), it would be this: People — the average Joe and Jane citizen — feel completely in the dark about CFS, how it works and what it does. But they care. 

To many, it’s a gigantic government machine — “the feared child police” — which operates largely in secret and appears completely unaccountable for the decisions it makes — and that it make decisions about the lives of others which don’t appear to be working in a long-term sense. It bears remembering that many people touched by CFS aren’t the most sophisticated to start with.

Navigating complex legal and bureaucratic systems, for them, is unthinkable. And there’s not a whole host of advocacy routes to travel.

But let’s face facts: We have a terrible problem in Manitoba.

There’s an overwhelming number of kids in CFS care (many, if not most, aboriginal) and most they’re there not because of “abuse” — a nebulous and shifty term as set out in the CFS Act — but because of parental neglect.

No food in the fridge, mom and or dad or both drinking or splitting up, a shaky housing situation. These are just some of the instances of neglect which could move CFS to pull a child from his or her family and into care, and the parental issue triggering the apprehension may or may not get attended to.

It can’t be overstated: pulling a child from its family is no small thing. The aftershocks of that broken bond could last an entire lifetime. We have evidence in droves, including that unearthed by a years-long public inquiry, that the foster care and child-welfare systems is a feeder for youth jails, addictions and gang-involvement and, later, adult prisons.

[Two quick, but admittedly extreme examples: A 19-year-old man who lit a guy on fire in the north end and killed him? He had nearly 20 different foster placements in his short lifetime. Another man, who torched his Sherbrook Street apartment block around Christmas — he had 36 different CFS placements as a youth. The mass rejection a developing mind would feel from the constant shakeups is staggering.]

So, what do we do? Blaming the government won’t help. Blaming social workers won’t help.

But being given information and ideas to contemplate and question the status quo is a start.

And that’s what we should be doing.

Sunday’s meeting was an excellent example of this.

There were five speakers, and I’ll summarize a few of their views [as I understood them], briefly. This is not exhaustive.

First was Bernice Cyr, executive director of the Native Women’s Transition Centre and former CEO of Metis Child and Family Services.

Cyr spoke of several key areas, including the problem the system has in terms of dealing with the competing concepts of ‘safety’ and ‘risk’ assessments.

While it’s pretty apparent what constitutes ‘safety,’ for kids — the concept of ‘risk’ (in the long-term sense) to a child is one that’s harder to get a grasp on. Because of new risk-assessment tools used by CFS (the Structured Decision Making computer risk evaluation, sarcastically dubbed the “cover your ass tool” by some), Cyr suggested that long-term risk can’t be addressed through apprehension of kids into care (because of the later “desperate outcomes” many of them encounter in other systems: health, criminal justice) and advocated for a greater use of what she described as “safety networks” for families in crisis.

Ultimately, Cyr believes child-welfare is a public concern to be addressed by the community/public agencies as a whole and not simply left to the ‘system’ to deal with in isolation.

Key point: in northern isolated communities, CFS is often the only resource available. The presence of health and other agencies can be skimpy or non-existent to meet people’s basic needs and protection centres for kids aren’t there, but CFS is, so a lot of burden is placed on the system.

Cyr also said the definition of ‘abuse’ in the CFS Act needs to be narrowed because it prevents social workers from developing more progressive practice habits. She also called for the expansion of the mandate of the Children’s Advocate office and the redirection of already-existing funding for family support interventions.

Next — and most interesting to me — was Lore Mirwaldt, a child protection and family support lawyer who practices up north.

In frank terms, she argued the CFS system as exists today is one that’s been thrust into isolation because of legislation and a hierarchical management/government system which operates in “crisis management” mode brought on by fear of making mistakes which become public controversies (Phoenix, Gage Guimond etc.).

“The name of the game is, ‘keep your cases off the front page of the Winnipeg Free Press,'” Mirwaldt said.

She took the 40 or so people gathered through the genesis of the so-called ‘devolution’ of the system as advanced by the AJI in 1991 and talked in depth about the problems which came out of the so-called “master agreement” the province signed with aboriginal leaders in 2000. While the principles of the agreement were to be lauded, Mirwaldt suggested the implementation was where it all went awry. As a result, the CFS system continues to wrestle with the problems that arose from the transfer of cases to aboriginal-run agencies years after the May 2005 ‘go-live’ of the new system.

“The problem is the government lost its nerve — they got scared,” she said. “They didn’t want to see any more dead children.”

In the north, some social workers handle astronomical caseloads of 70, whereas the recommended maximum caseloads are about a third of that.

As for the SDM tool, the standardized risk assessment questions (often called ‘probability of future harm’) that social workers must use in a case are often biased against northern kids, where ‘risk’ can be determined by the lack of a community store or other resources. Northern kids routinely come out of the computer-generated tool as “medium to high risk” and the solution for the worker is to apprehend, Mirwaldt said.

Overwhelmed by the soaring caseloads, workers on the Nisichawayasihk Cree Nation were encouraged by the director of their agency to “think outside the box.”

So they did, by moving to a philosophy Mirwald, tongue in cheek, called “apprehend the parent.” Through a band resolution passed by the NCN chief and council, parents who were creating unsafe atmospheres for their kids were removed from homes (remember, its the band who owns the property) and replaced by grandmothers and other appropriate caregivers to look after the kids. When parents protested, they were told to go work on their issues before they could return.

Most parents “eventually see the light,” she said, prompting the CFS agency to implement supervision orders to reunite the families with conditions.

The child stays in the home with relatives and is safe. The parent deals with the presenting problem or can’t return.

As a result of this “circle of care” strategy, Mirwald said Child Protection dockets in Thompson court have shrunk from 70 cases to as low as 22.

The problem is, she says, “bean counters” at CFS don’t know how to pay for the increase in in-home supports.

In the question/answer portion towards the end, Mirwaldt made an interesting point: Our priorities seem out of whack when a child can die in care and nobody gets fired, but if it was questionable spending a person is caught doing, they’d likely be turfed in a heartbeat.

She also said a worry is that declining caseloads will trigger a funding issue.

“We’re really afraid we’re going to lose our funding because our numbers are down,” she said.

Next to speak (and the last I’ll discuss in this post) was Bertha Traverse, a member of Little Saskatchewan First Nation and former long-term child welfare worker who specialized in working with at-risk youth.

She’s a staunch advocate of finding means to prevent apprehensions.

“Apprehension doesn’t work,” she said. “The bond that you have with family is broken the minute you’re taken out of your home — it’s irreparable,” she said.

Traverse spoke in scenes of realism — pointing out how on the 4th floor of the law courts building in Winnipeg, outside room 410 (where child-protection docket court is held), the vast majority of people there are aboriginal young mothers.

She also talked of how the government’s standards for social workers’ educations don’t always mean the workers are invested in the work.

There is no damned degree that will ever teach you humanity,” she said.

Speaking of humanity, several in the audience offered insight into their personal predicaments and thoughts on the CFS system as a whole.

One of the most touching moments came from the undertaker who buried Gage Guimond.

He seemed to be questioning the entire philosophy of the social-welfare system and wondered what role “corruption” [his word] played in our society being unable to find solutions.

“The more you keep people poor, the more you keep them just running — the worse problems you have,” he said.

Another man spoke of the fear people have of CFS, and called for more advocacy resources for people to be able to navigate the system.

But it was one woman — an adoptee — who really gave me pause.

What the real problem is, she says, is how society has changed so much from when she was a child, when she would walk home from school and people would inquire of her if they hadn’t seen her sister or father that day.

We don’t look out for each other or even know each other any more, she said.

If we simply stuck together more, paid attention and cared, we’d be able to find solutions for the long-term benefit.

Maybe she’s right. But the cynic in me says we’ve come too far afield now to get back there.

I stand to be corrected, because ideally, I think she’s probably bang-on in her assessment.

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REDHEAD INQUEST: The Joyal decision in full

(Jaylene Sanderson-Redhead)
(Jaylene Sanderson-Redhead)

In recent months, the Redhead inquiry was dealing with a request by Awasis CFS  to have inquest Judge Larry Allen kicked off the case due to how he handled a social work witness.

Links: Here and here  With the position of my bosses at SunMedia on this important case here.

The agency’s bid — supported by the Northern Authority — went before Court of Queen’s Bench Chief Justice Glenn Joyal and was shot down.

Here’s Joyal’s written decision for the fullness of the record:

Phoenix Inquiry: The Trigg memo and a history lesson

Screen Shot 2012-12-01 at 8.13.14 PMThe inquiry this week is moving further into its exploration of what was going on behind the scenes within Winnipeg CFS from 2001-2004.

We’ve already heard a bit of evidence from Dr. Linda Trigg, who at the time was the CEO of the agency at a time of massive systemic change, coming on the heels of a separate restructuring which was never fully completed from the late 90s.

Trigg has already told us of a loss of community contact between front-line social workers as well as talked about how funding was in short supply — or that willingness to hike funding to operations as they were in the wake of the incoming ‘devolution’ wasn’t on the table.

Workloads were very high, as was anxiety and uncertainty about the changes underway.

The inquiry was shown a memo she wrote to familiarize the new interim Winnipeg CFS board with what was going on internally. I present what’s available here.

Pay close attention in it to her comments on the troubles within the intake unit and how it is to be restructured as part of the devolution process.

Also, note the following chart on levels of experience within the units and the relative youth and inexperience on the “key and front-line” family service positions. Staring down massive uncertainty, workers with experience appeared to find “safe haven” in other areas of CFS. Seniority was the main means of transferring, meaning Trigg was unable — as she says she was told — to simply “move” people to suit the agency’s needs.

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When you’re done with that, take a few minutes to familiarize yourself with this 2003 expert review of the process — and more importantly — the history of the devolution (AJI-CWI) implementation process. The history provides the context.

Keep your eye on passages referencing funding and expectations.

“However, the critical issue is funding. There is an expectation among service providers that new funding will be needed in order toenable more than a tokenistic gesture towards the development of a new service paradigm for child and family services. At present, the Province expects such a shift in services to occur through the reallocation of existing resources.”

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