Wednesday 21 April 1999

When courts, parents collide

Dave Brown
The Ottawa Citizen

Columnist Dave Brown looks at a family fighting for the return of their children -- who were taken away from them and given up for adoption. This is the first of a four-part series.

Judge Robert Fournier looked down from the bench in an Ottawa courtroom Feb 19 and tried to explain to the couple in front of him how the child protection system had wandered so far off the logic trail.

Four of their children had been made Crown wards in the mid-1990s and adopted in what he compared to a party game gone wrong. Now, the couple were facing the prospect that twins born to them last year would also be removed from their custody.

The judge chose his words carefully as he tried to bring an end to the couple's eight-year fight to get their children back. He was kind, compassionate and tried to reason with them, to convince them to end their fight and get on with their lives.

An hour later, the couple sat at lunch, comparing their situation to that of Joyce Milgaard, who fought 23 years to prove her son David was not a murderer.

"She at least knew where her son was and could see him," said the mother. "She got her son back.

"I've had four children torn away from me and it hurts. Every day it hurts and I'm not going to stop until I put an end to this pain. The only way to do that is to get my children back."

Parents in child protection cases can't be identified.

The judge had good news and bad news. He acknowledged the woman in front of him was a good mother and that the twin sons born to her in 1998 -- and still under her care -- had two good parents.

The good news was that he was denying the application by the Ottawa-Carleton Children's Aid Society for a protection order for the twins.

The bad news was that although the legal processes that took her other four children into protection and adoption were suspect, they won't get those children back. The first three were scooped into the system in Lanark in 1991 when she and her husband were in Europe. The babysitter, her sister, reported that the oldest, three at the time, had told her he was being abused.

By the time the mother got back from Europe (the couple were thrown into jail after they were caught with hashish at London's Heathrow Airport), her sister was the paid foster mother of her children.

In 1993, the mother gave birth to a daughter at the Ottawa Civic Hospital. An Ottawa-Carleton CAS caseworker removed that baby from the nursery and the hospital when the little girl was five hours old.

The mother was allowed to visit her baby twice a week for 356 visits as the system let legal wheels grind. Then, she was notified that a psychologist had reported to the CAS that her visits were making the child ill. Contact was cut. "I knew the day it happened it was going to happen. I could tell from the look on the foster mother's face when she brought her to the meeting."

When she delivered twins at the Grace Hospital last year, the child protectors had a problem. After appearing before dozens of judges in eight years, the parents knew their rights; the mother had even been praised by some judges for her legal skills. She has become a capable courtroom tactician.

The child protectors had to apply for a protection order, because of court-created history. That meant new judges were looking over the previous cases.

Judge Fournier, from Haileybury, was the 47th judge the couple has appeared before, and he tried to bring an end to the ordeal.

He had good news and bad news about the first three children. He pointed out that, in most cases, once a child is adopted, the birth mother can't see the child again. The good news here, he pointed out, was that the adoption made the natural mother their aunt, "and as a member of the extended family you can visit the children."

As for the newborn removed from the hospital nursery in 1993: "I know it leaves a hole in your heart, but c'est la vie."

When the twins were born last year, the couple opened their home to CAS caseworkers. In the earlier cases, social workers had refused to talk to them. The new caseworkers reported the children were in good hands.

Despite that information flowing back to the CAS, that these were good parents, adoptions of the other four children were proceeding.

It was suggested to CAS lawyer Heidi Polowin that under the circumstances, not stopping those proceedings made the system look vindictive. "The cases aren't connected" was her view. "Once a court makes a child a Crown ward, other processes start. There's a normal flow."

In an earlier court, the sister/foster mother was asked if she would consider adoption. She didn't think she could afford it. Judge Jennifer Blishen and lawyer Mary Ann Nixon, then chief in-house counsel for the CAS, outlined the process of supported adoption, in which she could become the legal mother and still be paid as if a foster parent. This is likely what happened, but the system won't discuss adoption details.

The newborn removed from the nursery in 1993 has also disappeared into adoption.

Judge Fournier gave two versions of his judgment. One was a 16-page document, but before handing it out, he gave what he called "the executive version" of his findings. In the verbal version, he said part of the problem could have been caused by the mother's appearance. She's a bodybuilder and tends to flaunt the finished product. She wears tight short skirts, spiked heels and wears her blond hair big.

In a family court, hearsay and opinion are allowed as evidence, and perception can be a factor. The woman's appearance, said the judge, could create a perception of somebody who wouldn't be a good mother.

While he delivered those lines, the mother had her head down, scribbling on a yellow legal pad. Her legs were crossed and her short skirt was riding high. She was wearing four-inch heels and her hair was particularly big. She has steadfastly refused to accept advice to change her appearance for court. Her husband supports her style, and in court they call each other "Babe."

TOMORROW: What went wrong.

Columnist Dave Brown looks at a family fighting for the return of their children -- who were taken away from them and given up for adoption. This is the second of a four-part series.

The dumbest thing they ever did, said the couple in Judge Robert Fournier's Ottawa courtroom recently, was walk into London's Heathrow Airport with hashish in 1991.

It would kickstart a chain of events that would cost them four children. While they sat in a London jail waiting for their day in court, their babysitter in Lanark reported child abuse.

That changed her status from unpaid babysitter of three, to paid foster mother. Once decisions like that are made, the child protection system is reluctant to alter course.

When the couple had another child in 1993, it was removed from a hospital nursery by a social worker. Although abuse was never proven, the allegations about the first three children weren't disproved. Taking a newborn out of a hospital nursery under these circumstances is what child protectors refer to as erring on the side of caution. All four children have been adopted.

In his explanation of what went wrong, Judge Fournier landed heavily on experts -- the kind who provide most of the evidence in family courts. "Would it not be more appropriate for these so-called experts to explore the possibility such allegations might be false? Is that not the function of an 'expert' who seeks the truth? Yet it appears that these experts were more intent on telling (Children's Aid Society) officials what they apparently wanted to hear."

Despite this, Judge Fournier said the parents would not get their children back.

The couple now have year-old twins and Judge Fournier was hearing the latest CAS protection application. He ruled the couple were good parents, and denied the application.

The parents claim they haven't changed. They are the same people they were in 1991. But court records describe them as alleged drug traffickers, alcoholics and drug addicts, and the mother as an alleged prostitute and table dancer.

In refusing the CAS application, Judge Fournier had the difficult task of explaining how people could be so terrible in court records, and be allowed to parent.

The parents say they are the victims of lies.

The judge preferred to describe it as confusion. He said it was like the party game where you tell one person a bit of information. At the end of the party you check that information with someone else, and find it has become distorted beyond recognition.

As an example, the judge felt he understood how the table dancer allegation came about. In conversation with a psychologist, the mother said she liked dancing. She's also a bodybuilder who likes to show off her figure. The psychologist seemed to make a leap of logic and the table dancer was born. Judge Fournier referred to other similar "quantum leaps" of logic in the transcripts he reviewed.

Judge Johanne Lafrance-Cardinal of Cornwall was the 46th judge to be involved in the couple's case, and she wasn't quite as diplomatic as Judge Fournier when she looked at the same protection application. At one point she asked CAS lawyer Bob Morrow: "How are you going to answer about the fact there are a lot of lies in the transcripts? How are you going to answer that?"

She told the mother: "The only way you could get to the bottom of it is if you had a public inquiry. I know how frustrating it can be."

During one of their appeal cases the couple learned how the prostitution allegation came about. Under cross-examination, a witness said she saw a television report about prostitution, and thought she recognized the mother among hookers on a downtown street; rear profile only. She reported the sighting to CAS. That witness is the same woman who reported the original abuse and is now the legal mother of her sister's children.

The judge said the couple had to accept some responsibility for the loss of their children. For example, they refused to take the witness stand at the first session of trials.

"There was no point," says mother. "The decision that we were bad parents had already been handed down, based on a psychologist's report that I was unable to protect my children from my husband." About that time she flatly refused suggestions that her children could be returned to her if she got the husband permanently out of the picture.

"We are not child abusers, but victims of lies and deceit. Give us a public inquiry. It would be easy to prove."

As the father puts it: "How do you prove you're not a child abuser. How do you prove you're not a witch?"

After their years of experience in the system, the couple now liken the operation of family courts to the witch trials of Salem. Family courts accept hearsay and opinion as evidence. Much of family court evidence is expert opinion, and Judge Fournier doubts experts.

"The courts in previous proceedings have relied a great deal on the opinions of so-called experts who were plying their trade. This court is only too aware that psychology is not a very precise and complete science and that it suffers from as many frailties as human beings do."

Court records show a psychologist suggesting that a three-year-old child had been sexually abused. He thought he saw something in the way the child held a toy snake, and the look in the child's eyes seemed to show some kind of sexual gratification. As that evidence moved through the court process it changed from suggestion to fact.

"Stop and think for a minute," says the father. "These people are paid to be witnesses. Is the CAS going to pay a witness to say something that isn't supportive of its aims?"

Judge Fournier said the father's bombastic nature also worked against him. He reacted strongly and loudly to accusations of child abuse, "perhaps giving the perception that anybody who reacted so strongly must be guilty of something."

The father also used a fax machine to scream his outrage, and at one point he spent 35 days in jail for what was perceived as a threat to Mel Gill, at the time executive director of the Ottawa-Carleton CAS. The charge was withdrawn when the father got to court.

Of more than a dozen social workers who touched their lives during the period their children were made Crown wards, none are now in the child protection business. Mr. Gill has retired, and lawyer Mary Ann Nixon, former lead counsel for Ottawa-Carleton CAS who handled most of this case, is now teaching.

TOMORROW: What went right.

Columnist Dave Brown looks at a family fighting for the return of their children, who were taken away from them and given up for adoption. This is the third of a four-part series.

How could a family court judge allow a couple to keep their year-old twin sons when dozens of other courts in the past eight years had condemned them as perverts and child abusers, and caused four of their children to disappear into adoption?

It was one of the issues Judge Robert Fournier had to explain when he recently denied a Children's Aid Society application for a protection order for the twins.

The difference, he said, was in the quality of lawyer representing the CAS at this point, and the quality of work done by two CAS social workers.

Bob Morrow of the law firm Burke-Robertson represented the CAS. Ian Bates, a 12-year veteran social worker, did something social workers in the earlier cases didn't do. He went to the home and got to know the couple.

The parents entered a voluntary agreement of supervision for six months. After the birth of the twins, Brenda Williams was assigned to monitor the home situation. Their combined case notes said the parents were good people, and the twins were in good hands.

But court-generated past history put the CAS in a tough spot. It found itself forced to make another protection application even though its own people were saying there was no problem. It was as if the system took the view the couple must have undergone some kind of miraculous change.

Judge Fournier: "This trial was conducted in a much different atmosphere. Though our system calls for an 'adversarial' approach in court, this case was not adversarial. Mr. Morrow took special care and proceeded with caution and compassion, particularly so because the respondents were not represented by legal counsel.

"He was not antagonistic, but helpful both to this court and to the respondents in his quest for justice.

"It is clear from our review of past records and transcripts that counsel for the CAS in the past chose a more confrontational approach. It is also clear that some of the 'experts' (social workers and psychologists) called to testify did so with a lot of dedication but apparently with little inclination to perceive things from the respondents' point of view."

The judge praised Mr. Bates and Ms. Williams for their "open-minded and compassionate approach."

Having sat through several sessions of this case, and others like it, I've drawn conclusions about the dangers in a child protection system that operates virtually in secret, and in family courts that have virtually no rules of evidence.

In family court, a parent is guilty until proven innocent. The whole child protection system operates with no public overview, and little public accountability.

There's a similarity between a social worker and a police officer. Both can cause trauma when they make an apprehension. A child taken away from its parents is traumatized. A police arrest, particularly with force, can cause trauma.

The difference is if there's a complaint against police, the officer is called to account. In the child protection system, lawyers quickly become involved and the emphasis switches from protecting a child to protecting the agency. Lawyers are not in the child protection business. They are trained to protect the client (CAS), and do everything in their power to win for the client. Failure could lead to a suit, and child protection agencies are rarely successfully sued.

The records in this couple's case are laced with loopy logic. Although the man was never charged with abuse, and his name does not appear on the provincial abuse registry, CAS applied to the Ontario Criminal Injuries Compensation Board for the "criminal abuse" of the first three children. The board paid $18,000, and then demanded repayment from the father. He didn't pay.

Even with a judge now pointing to flaws in the processes that took away their children, there is no indication anybody will be called to account, nor will corrections be made.

The parents say they are far from finished. They respect and appreciate lawyer Morrow, and social workers Bates and Williams.

"They had a job to do, and they did it with efficiency and honesty," says the mother. "The question left hanging is, what were those other people doing for seven years?"

Both parents carry huge legal file holders. "Look at this," they'll say, reaching into a file and producing transcripts, tabbed and ready to open.

They can show you a caseworker, swearing to tell the truth, and saying a three-year-old boy disclosed to her that he was being abused. She appears in other court processes making the same claim on the same issue. They can show a letter she wrote to a police officer saying the boy clearly disclosed he was being abused.

But under cross-examination by the parents in one of their many appeals, the same woman answers "no" to the question of disclosure.

That the system will admit discrepancies in the legal treatment of this couple, but offer no solution, is not acceptable, say the battling parents.

The way the child protection system works, removing a newborn from a hospital nursery without certain cause is called erring on the side of caution. That the family court system then backs up that error and moves to adoption leaves the angry parents using words like kidnapping.

Tomorrow: Capital punishment.

Columnist Dave Brown looks at a family fighting for the return of their children -- who were taken away from them and given up for adoption. This is the final column of the four-part series.

It can be argued there is capital punishment in Canada. It may have been removed from the criminal justice system, but it exists in the family court system.

When a child is given up for adoption, all records of the adopted child are sealed. As far as the birth parents and the law are concerned, that child ceases to exist, and that is a definition of death. The moment the adoption becomes official, a new child is born, with new parents and new records.

But what happens if someone makes a mistake? It's one of the considerations that led the criminal justice system to eliminate the death penalty. What if a person was wrongly executed?

In the family court system, what if a child is wrongly made to disappear into adoption?

Judge Robert Fournier had to answer that question recently, when he blamed "so-called experts" and distorted information for the 1993 removal of a five-hour-old girl from an Ottawa hospital nursery, and her disappearance into Crown wardship and adoption.

He offered sympathy to the mother. "I know it leaves a hole in your heart, but c'est la vie."

It was the equivalent of a criminal court judge learning that a person had been wrongly hanged, and saying oops.

The case has dragged on so long, and been through so many local judges, that judges have had to be brought in from outside the capital area.

Local judges have not answered the mother's question: How does she get her child back? Judge Fournier is from Haileybury and was judge No. 47. He was the first one to answer the question.

The short answer is: She doesn't.

Where does that leave other parents who could face a similar series of miscues by "so-called experts?" The answer is: at serious risk.

Throughout North America, the child protection system is an adversarial one. Child protectors and family courts react aggressively to a report of child abuse or neglect. They have massive resources, invasive powers and little public overview. Parents caught in those systems disappear. The law says if the parents are identified it could traumatize the child, and that is abuse.

It is also a system that is mainly reactive, not proactive.

In 1985, Hawaii instituted a proactive child protection system that has reduced abuse and neglect by 99 per cent. The first people to see a child at risk are hospital staff present at its birth. They get to know the parents, and they know when a newborn is going to need help.

The program is called Healthy Start, and although it has been widely reported in North America, it hasn't been able to break through the established system that supports many offshoot industries. They include armies of social workers, legions of lawyers, and countless courtrooms.

In Ontario alone, foster parents who care for children in the system are part of an industry that reached $74 million last year. In December last year, there were 7,500 children in foster care, of whom 5,000 were Crown wards.

The state has complete control and authority over Crown wards, and can adopt out such children at will. On average, 350 a year go through the adoption process in Ontario. All records are secret, including what kind of fees adoptive parents may have paid.

In the foster care system the daily per-child fee was raised last year from $14 to $26. Taking one foster child into care is worth an annual $9,500 to a family. Three are worth $28,500.

There's no doubt many foster parents are in it for the good they can do. There's no doubt that for many others, it's a source of income.

The Ontario system has studied the Hawaii experiment, says Suzanne Bezuk, communications officer for the Ministry of Community and Social Services. In June 1998 it began a program called Healthy Babies -- Healthy Children, in which "lay persons" become part of the child protection system. But since then the ministry has continued to call for more money to hire more social workers to protect more children.

Anybody who doubts the system is troubled need only spend a day around a courthouse. There's always a lawyer pleading for lenience for a guilty client, arguing that he or she never had a chance, because they were raised in "the system." Foster care.

Hawaii has made great strides by keeping children in their homes with their parents. If hospital staff report a possible need, a caseworker is assigned immediately. That person is always a woman, and her main qualification is that she has proved herself to be a good mother. She has raised good children.

She spends three years monitoring the situation and teaching the new parents how the baby will form its personality in its first three years of life. It will imprint during that period. If given love and care, in a calm and loving atmosphere, it will develop into a caring and loving person. If abused and neglected, or allowed to witness violence and anger, a course will be set for a troubled life.

Bringing about such a change of attitude in North America would seriously weaken the established multi-billion dollar child abuse industry, and power is not easily given up.

As Judge Fournier said: C'est la vie.