Jr v Department of Communities (Child Safety Services)
[2013] QCAT 73
•12 February 2013
| CITATION: | JR and Anor v Department of Communities (Child Safety Services) [2013] QCAT 73 |
| PARTIES: | JR and JJ |
| v | |
| Department of Communities (Child Safety Services) |
| APPLICATION NUMBER: | CML201-11 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 12 and 13 November 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Nathan Jarro, Presiding Member Robyn Oliver, Member Pam Goodman, Member |
| DELIVERED ON: | 12 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision to impose a condition on the issue of JJ and JR’s certificate of approval as foster carers is set aside. 2. The decision to remove the child M from the care of JJ and JR is set aside. |
| CATCHWORDS: | CHILD PROTECTION - proposed removal of foster child from long term carers - where long term carer has history of prescription drug abuse - where evidence that carer has a low level of intellectual functioning - where evidence of risk of long term damage to the child if moved - whether removal in best interests of child - whether conditions should be placed on approval as foster carers Child Protection Act 1999 |
APPEARANCES and REPRESENTATION:
JJ and JR, supported by Mark Cotterill from Foster Carers Queensland
Rachel Robinson, Manager, Forest Lake Child Safety Services, Department of Communities (Child Safety Services)
Tim Ferguson, Advisor, Court Services, Department of Communities (Child Safety Services)
Stephen Hung, Team Leader, Forest Lake Child Safety Services, Department of Communities (Child Safety Services)
REASONS FOR DECISION
Nathan Jarro, Member
I have had the advantage of reading the reasons of Ms Goodman in draft. I agree with them and with the conclusions she reaches and the orders she proposes.
Robyn Oliver, Member
I have had the advantage of reading the reasons of Ms Goodman in draft. I agree with them and with the conclusions she reaches and the orders she proposes.
Pam Goodman, Member
Background
JJ and JR have been registered as foster carers for many years. They are currently providing care for two children, M, born 5 March 2009, and D, born 27 February 1995. In order to continue to provide care for those children, JJ and JR require a certificate of approval as foster carers.
The Department has determined that M should be removed from the care of JJ and JR and placed in an alternative home, and that JJ and JR’s certificate of approval as foster carers should be on the condition that only one child 17 years or older may be cared for by them. This would allow D to remain in their care.
JJ and JR say that M should remain in their care, and that their certificate of approval as foster carers should not be subject to any conditions.
The Decision Under Review
On 18 October 2011 the Department advised JJ and JR that a decision had been made to remove M from their care on the basis that a long term placement needed to be found for M where his daily care and cultural needs could be met for the next 16 years.
On 8 November 2011 the Department advised JJ and JR that they were determined to be no longer suitable persons to care for M. The Department advised that an internal departmental review had been conducted and “That investigation and review has had a direct impact on your application for renewal of your status as carers”. The Department points to concerns regarding JR’s prescription drug use, failure to notify the Department of changes in household membership, failure to advise the Department of changes to domestic violence history, and providing misleading information in their 2009 application for reapproval.
On 13 March 2012, the Department confirmed a decision had been made to renew JJ and JR’s certificate of approval of foster carers, subject to the condition that they were approved as carers for one child only, over the age of seventeen.
Those decisions have been stayed pending the outcome of these proceedings, and currently both children remain in the care of JJ and JR.
Legislation
The Tribunal has had regard to the Queensland Civil and Administrative Tribunal Act2009 (QCAT Act), and the Child Protection Act 1999 (CPA).
Part 2 of the CPA describes the purpose and principles of the Act. The purpose of the Act is to provide for the protection of children (s 4).
The paramount principle in administering the Act is that the safety, wellbeing and best interests of a child are paramount (s 5A). Other principles are contained in s 5B of the CPA and the Tribunal must have regard to these principles in reaching its decision.
The Department has determined that it is in M’s best interests to be removed from the care of JJ and JR (s 89 CPA) as JJ and JR are not able to meet the standards of care required in the legislation.
The Department has determined that the certificate of approval as foster carers previously issued should be amended pursuant to s 138 of the CPA on the basis that JJ and JR are not meeting the required standards (contained in s 122 of the CPA) and that they do not meet a condition of the authority because they are not “suitable persons” as required by s 135 and Regulations of the CPA.
Matters upon which the parties agree
Much of the evidence is undisputed by the parties, and is accepted by the Tribunal:
· M came to live with JJ and JR in April 2009, when he was approximately three weeks old, and has been in their care ever since;
· JJ and JR have formed a close and loving bond with M, as have their children and extended family. JJ and JR interact regularly with their adult children and a number of former foster children, all of whom have formed a loving relationship with M;
· There is no evidence of mistreatment or neglect of M in the home, and this has been monitored fairly closely in recent times. During the approximately six months preceding the hearing a departmental officer has visited the home approximately fortnightly;
· M is of Vietnamese heritage. His biological parents play no role in his life currently, and have not for some time. M’s biological mother has indicated her desire that M remain in the care of JJ and JR.
· JJ and JR and the Department have not always enjoyed a good working relationship. JJ and JR have failed to inform the Department, as is required, of various changes to their circumstances, including the movement of relatives and exchange students in and out of their home, the taking out of a Domestic Violence Order against JJ in 2008, and JR’s dependence on and overuse of prescription medication.
· The 2008 Domestic Violence Order made against JJ was not contested and was never breached.
· JR was for some years abusing prescription medication, resulting in her hospitalisations in 2004, 2006 and 2007.
· While JR has been prescribed significant amounts of medication since 2007, there is no evidence that JR has been overprescribed or abusing medication in the period since 2007.
· JJ and JR’s neighbours and friends support M’s ongoing placement with them. They report a happy home and a well cared for and well loved little boy.
· Removing M from his current home will be traumatic for him.
· Removing D (currently aged 17) from JJ and JR’s care would not be in his best interests.
· JJ and JR have previously been found by the Department to have breached Standards of Care (s 122(1)(a) and (c)) by withholding Centrelink payments from children in their care.
Unchallenged medical evidence
Medical practitioners provided evidence that JR ’s current prescription use would not provide long term problems for her as long as she takes the medication as prescribed by her doctor, and that stable doses of medication will not affect her functioning. This evidence was not challenged by the Department and is accepted by the Tribunal.
Preliminary matter
In July 2011 Georgia Gustafson, a Senior Review Officer with the Department, conducted a review of previous Matter of Concern notifications and outcomes concerning JJ and JR. She concluded, in short, that many of the investigations conducted by the Department over the years were not fulsome, and, had the Department investigated allegations vigorously and thoroughly, more notification concerns would have been substantiated.
The Tribunal has placed little weight on this evidence. Ms Gustafson’s investigation was conducted on the basis of paperwork available to her and JJ and JR were not afforded the opportunity to provide input into the review. It would be unsafe for the Tribunal to rely on Ms Gustafson’s views unless and until any further investigations are properly conducted and concluded. At this time, the Tribunal has before it a number of unsubstantiated allegations made about JJ and JR’s care of children in their care, and a small number of allegations substantiated by the Department, the details of which are discussed elsewhere in this decision.
Other evidence
The Tribunal has received a Kinship Carer Assessment Report of Shirley Roy and Melissa Baron-King dated 9 November 2011 who raise concerns that JJ and JR are unable to meet the standards of care required of foster carers, on the basis that:
· They discussed the children’s parents in public places and were speaking negatively about their families;
· They will fail to provide for the child’s cultural needs;
· They will not ensure the child receives education relevant to his abilities, based on the delay in enrolling him in day care and failure to assist D to transition from their care;
· They have not encouraged the children to maintain contact with family members or to talk about their families or keep photos. JR allows M to call her “Mum”.
Medical evidence
The Tribunal has been provided with Medicare Australia records for JR for the period 1 September 2007 to 22 August 2012.
Linda Troy, clinical and neuropsychologist, conducted an assessment of JR on 20 December 2011 and provided a report dated 5 January 2012. She indicated that it appeared to her that JR was intoxicated by prescription drugs at the time of the assessment. The Tribunal received Ms Troy’s report and oral evidence. She states as follows:
· JR’s IQ is 79, which placed her on the 8th percentile (her performance exceeded 8% of her age peers) and is moderately impaired. To account for variations due to anxiety or health issues, there is a 95% chance that JR’s IQ would fall between 74 and 84 if she were assessed again.
· JR’s memory was impaired, and she showed severe deficits in comprehension (equivalent to that of an 8 year old child). JR showed severe deficits in her ability to adapt to changing demands, selectively attend to information and ignore distractions, and response inhibition.
· JR’s cognitive deficits mean that:
·She is unable to understand the developmental, emotional and physical needs of a child, due to poor reasoning. This will become more of an issue as M grows up and his needs become more complex and his reasoning skills and intelligence become superior to JR’s.
·She will have difficulty communicating with her family, partner, and professionals, with understanding and following through on written and verbal instructions that are beyond a Year 3 – 5 schooling level (eg instructions from doctors). JR’s confusion will affect her ability to function as a member of a team and work effectively with the Department.
·She will become distracted in busy or unfamiliar situations and have difficulty in coping and thinking flexibly in response to unexpected situations. She is likely to become overwhelmed and have difficulty in regulating and monitoring her responses.
·Her recall of information is inaccurate.
·She suffers from a preoccupation with health concerns and is at high risk of developing further depressive symptoms or substance abuse. She does not have sufficient insight to seek assistance if she develops further substance abuse issues.
·While able to cope with M’s superficial needs (hygiene, nutrition etc), she will struggle to cope with meeting his emotional and developmental needs as he matures.
·JR has little insight into her areas of deficit. This limits her ability to prevent future difficulties. She does not have the cognitive sophistication, insight or motivation to engage in long term psychotherapy for her pain management or mood difficulties.
·JR will not be able to anticipate problems and process behaviours before they grow into real problems.
·JJ’s presence may mitigate these risks if he is able to actively care for both M and JR .
·JR has a poor ability to parent, due to her limited intellect and reasoning abilities and her limited ability to follow through. She has poor communication skills which will cause miscommunication between her and M. She has a relatively low level of motivation to change herself. While she knows her functioning is not as it should be, she doesn’t have the problem solving ability to do anything about it.
·The testing did not reveal the cause of JR’s cognitive deficits, which could be due to depression or dementia. It appears that JR had been operating at a higher level of functioning previously. It may be that the tests results would be improved if JR’s depression is treated successfully and her reliance on prescription drugs was reduced. It is unlikely, however, that these factors could explain the marked extent of her limitations.
·Ms Troy’s field of speciality is identifying and quantifying cognitive deficits in people, some of whom present well. She stands by the results of her formal testing and does not agree with Peter Melville’s report (see below). She denies being abrupt or rude to JJ and JR and is confident that she was able to perform testing only after JR’s anxiety was reduced.
Upon learning at the hearing that JR had reduced her use of medication and entered into a therapeutic counselling relationship, Ms Troy indicated it would be preferable to reassess her cognition, although she did not anticipate a “huge difference” in results.
JR states that she felt Ms Troy was rude to her and that she was upset by Ms Troy’s abrupt and abrasive manner. JR described herself as “a wreck” during the testing process. She does not accept Ms Troy’s conclusions as to her cognitive abilities, pointing to a lifetime of working, running a business, and raising a family and caring for numerous foster children.
Dr Henderson, general practitioner, provided evidence that he has known JJ and JR for approximately 20 years. He believes JR has done an “amazing job” with the children in her care. He has no concerns regarding her ability to function and provide care for a three year old. He states that her history of anxiety is not that different to a lot of parents. Dr Henderson states that JR follows medical advice and that M is a well adjusted kid and a credit to his upbringing.
Dr Henderson has been to the family house and seen their foster children over the years. He recalls a busy house which is a clean, happy place. Ms Troy’s summary doesn’t accord with his experience of JR and he does not agree with the report.
Dr Jackson is JR’s current general practitioner. He is aware of her significant past history of overuse of medication. He advised that during 2012, in consultation with him, JR decreased her use of prescription medication, particularly since late September / early October. Her current condition is “very stable”.
Dr Donlon, JR’s former general practitioner, provided evidence that she has seen M as a patient, and in the company of JJ and JR. She states that M is a happy, normal little boy, who is obviously emotionally attached to JJ and JR. She has no concerns regarding JJ and JR’s ability to provide foster care for him. She states that M is obviously well cared for and interacts well with his carers, and that she has never seen symptoms or signs of any physical or emotional trauma. She believes that M is progressing well with JJ and JR and it is not in his best interests to be moved.
Dr Shannon O’Gorman, a Child and Family Therapist, provided an assessment report dated 5 November 2011 in relation to the alternative family that the department proposes as M’s carers. Dr O’Gorman recommended that the couple be approved as kinship carers for M on the basis of their shared cultural background. Dr O’Gorman notes that she has not reported on the “goodness of fit” between M and the proposed carers. She states “it bears highlighting that the emphasis placed by the applicants upon respectful, “good”, compliant behaviour, whilst admirable (and clearly to the benefit of their own children) may pose risks in terms of the permanency of this placement, most especially when considering that children who have experienced neglect and separation from attachment figures are more likely to present with a range of challenging behaviours.”
Peter Melville, psychologist, provided written and oral evidence to the Tribunal. He advised that:
· He sees JR for counselling approximately fortnightly (eight visits and approximately eight telephone consultations at the time of the hearing).
· JR’s day to day functioning is absolutely fine. She demonstrates an ability to care appropriately for M.
· JR is able to articulate the difficulties she has encountered recently and there are no signs of confusion when she is engaging in adult to adult conversation. He has not seen any difficulties in her mental capacity or any evidence of dementia or deluded thought.
· JR has been through a great deal of upheaval due to the decisions taken by the Department and has considerable external stressors in her life. He doubts there will be a need for ongoing counselling after this crisis has passed, but he will remain available to offer counselling assistance as needed and will provide ongoing support to prevent a relapse into drug use. He is confident that JR has the skills to access support that she requires.
· The results of Linda Troy’s assessments are “absurd” and don’t bear up in the real world. Ms Troy’s hostility and condescending approach are seen in the tone of her report – that would affect the outcome of the report and render it invalid.
· While JR’s history of drug abuse indicates that she could relapse, the last five years of being clear of issues indicates she is travelling well and will continue to travel well.
· Based on his knowledge of JR, and in the absence of any evidence of abuse or neglect in the home, he has no concerns regarding her capacity to care for M.
· The effects of moving M from his current placement would be devastating. He would run the risk of developing adjustment disorder, would become traumatised and may develop behaviours which would make his ability to ever establish himself in another foster placement impossible.
Dr Vijay Raj, a Psychiatric Registrar with the Mater Child & Youth Mental Health Service, provided a letter dated 23 October 2012, in which he states “My personal observation of the foster parents and their interactions with M lead me to believe that they have formed a very strong bond with M. In turn, M has clearly formed a strong and healthy attachment with his foster parents. I do not believe there is any benefit in transferring his care to another foster carer on the basis of previous issues with the current foster carer. This would be extremely damaging for M’s development and would likely result in disrupted attachment. He is well loved, well looked after, and confident in the company of his foster parents, and I would like to see such a nurturing relationship continue.”
Analysis of the evidence
There are benefits and risks in M remaining in the care of JJ and JR and these must be weighed against the risks and benefits of removing him from their care.
Risks in M remaining with JJ and JR:
· The relationship between JJ and JR and the Department may not improve. This makes it difficult for the Department to tailor individual interventions to support the children, and for the parties to successfully transition foster children from their care.
· JJ and JR have previously refused to join a foster care agency and so denied themselves access to the support, advice and training which would better equip them to meet the needs of foster children in their care.
· JJ and JR are both in their late 50s and suffer from various health conditions. JJ is in receipt of a disability support pension due to physical limitations and has high blood pressure. JR has ongoing depression and ulcerative colitis. The health issues could impact on their capacity to provide ongoing care to the children, particularly younger active children who require an increased level of supervision. JJ and JR’s ages could point to a potential deterioration in their health.
· JR has previously relied on the overuse of prescription medication to deal with stress, and there is a risk she will do so again. JJ may not be able to provide support and care for both M and JR should difficulties arise in the future.
· The Department submit that JJ and JR have a permissive parenting style. (JJ and JR state that they have successful behaviour management strategies in place).
· While JJ and JR are facilitating and supporting M in getting to know his Vietnamese culture, this is not as optimal as him living in a home where Vietnamese custom and tradition are practised daily. The alternative carers proposed by the Department are Vietnamese Australians with two young boys.
· Given that it appears unlikely that M will return to the care of his family, a long term placement is in his best interests. If JJ and JR are unable to care for M long term, a move will become more difficult the longer he remains with them. While moving M now will be difficult, he may be better able to cope while he is still young.
· JJ and JR have been previously found to have breached the standards of care required by foster carers by preventing the children from accessing their money. (JJ and JR state that children in their care were not refused access to their money but it was not easily accessed by them as they did not have the capacity to budget it wisely. For example, one child bought a $200 tuxedo to appear in Court.)
Benefits in M remaining with JJ and JR:
· M is currently in a long term placement with a family where he is loved and who are willing to make a long term commitment to caring for him.
· M’s social, physical and medical needs are currently being met, and JJ and JR have committed to maintaining that level of care.
· JJ and JR have committed to establishing a successful working relationship with the Department and to joining a foster care agency so that all parties can work together to meet M’s needs.
· JJ and JR are experienced carers. A former foster child described them as “the best thing that ever happened to me” and disputes the finding that JJ and JR denied foster children access to their money.
· JJ and JR provide M with opportunities to engage with his Vietnamese culture.
· M has a strong attachment and bond to JJ and JR and their extended family.
Risks in M moving from the care of JJ and JR:
· Any move will be traumatic for M and there is a real risk that he will develop long term difficulties as a result of being removed from what is essentially the only home he has known.
· There is no guarantee that the proposed placement will be successful, either short term or long term.
Benefits in M moving from the care of JJ and JR:
· It is proposed to move M to a long term home with younger and more culturally connected parents, and with children around his own age. A healthy well supported transition into a suitable long term placement would reduce the risk of him developing long term problems associated with the move from JJ and JR’s care.
Findings of the Tribunal
JR’s history of prescription drug abuse is of most concern to the Tribunal. The evidence is, however, that there has been no such abuse since 2007 and the Tribunal is satisfied that the risk of a return to such abuse is low, particularly given the support she is receiving from her counsellor and general practitioner.
The overwhelming evidence is that the JJ and JR’s home is not one that is characterised by domestic violence. There was certainly a loud argument between JJ and JR in 2008 but the Tribunal is not satisfied, on the evidence available, that the argument resulted in JJ assaulting JR, or that any such incidents occur regularly.
The evidence of Linda Troy is unequivocal and is supported by anecdotal evidence of interactions between Departmental staff and JR. Ms Troy is a well qualified and reputable expert and she concludes that JR is not capable of providing a safe level of care to M. The Tribunal has also received evidence from other professionals with a long term relationship with JR who do not accept Ms Troy’s findings. JR has now significantly reduced her reliance on prescription medication and has formed a supportive therapeutic relationship with Peter Melville. We accept JJ and JR have been under considerable pressure as a result of these proceedings. We note also that M is not living with JR alone. JJ is also in the home and is actively involved in M’s care. The Tribunal finds that, as a team, JJ and JR are able to provide the required and appropriate level of care for M.
The Tribunal must determine what outcome promotes M’s safety, wellbeing and best interests and whether the condition on the issue of JJ and JR’s certificate of approval as foster carers should be imposed.
It may be that ultimately M will be unable to remain in the care of JJ and JR. The Tribunal cannot speculate about the future. It is an unfortunate reality that the placement of a child into any foster home cannot be guaranteed to be permanent, although of course the likely stability of a placement must be an important factor for a decision maker.
We find that currently, M’s cultural, physical, health, education and social needs are being met by JJ and JR. We find that is likely to continue into the foreseeable future. He clearly has a close bond with JJ and JR and their extended family, and there is a grave risk of damage to him in moving him from a loving home to an untested one. Taking such a risk is not in M’s best interests, when weighed against the lesser risk of the need for a possible future move at an unspecified time.
It follows that the decisions to impose conditions on the issue of JJ and JR’s certificate of approval as foster carers, and to remove M from the care of JJ and JR should be set aside. The Tribunal finds that M should remain in the care of JJ and JR, and that the certificate should be issued without condition.
The relationship between JJ and JR and the Department is poor, and both parties have made mistakes which have contributed to a low level of trust between them. For the sake of M it is hoped that both parties will commit to improving this relationship so that this young boy is able to be provided with all of the opportunities and care that he needs.
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