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]

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.

—-

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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