Pubdate: Fri, 17 Feb 2017
Source: Toronto Star (CN ON)
Copyright: 2017 The Toronto Star
Contact:  http://www.thestar.com/
Details: http://www.mapinc.org/media/456
Author: Rachel Mendleson
Page: A1

A FAMILY IN TATTERS

Sick Kids' flawed Motherisk hair tests have shattered many lives, but
the case of a 10-year-old girl torn from her mother and left in 'legal
limbo' for almost half her life was shocking even to the judge who
heard the case. In his ruling, he delivered a searing indictment of a
broken system and apologized for a 'perfect storm' of errors and
incompetence that has left . . .

A 10-year-old girl has been in "legal limbo" for nearly half her life
after she was "wrongly apprehended" from her mother who had failed a
flawed drug test.

She wants to be adopted by her foster mother but "hopes and prays" for
contact with her parents.

Her foster mother is ready to adopt, but not if there is contact with
the parents, who have been "consumed and trampled" by the child
welfare system yet continue to fight for the right to see their daughter.

This is the heart-rending dilemma depicted in a scathing Ontario
Superior Court ruling that delivers a broad indictment of a "broken"
child welfare system. Justice Grant A. Campbell reveals how reliance
on discredited hair testing from the Hospital for Sick Children's
Motherisk laboratory contributed to a "perfect storm" of "errors,
incompetence . . . and mistakes." Throughout, the parents were
"ignored, demeaned and disbelieved," while their child was shuffled
between placements.

So significant was the damage that Campbell included an unqualified
apology to the parents in his ruling, which he delivered orally in a
Kitchener court last week.

"It should not have happened. You should have been treated better," he
said to the mother and father, identified by their initials, C.T. and
J.B. "It did and you weren't, and for that, on behalf of the very
system that perpetrated this upon you, I apologize to you both." From
apprehension to appeal, his ruling outlines the "failures of the court
process," including a Children's Aid Society that ignored the mother's
claims of native heritage, which should have triggered special
considerations for her daughter's placement; "incompetent" trial
lawyers who neglected to challenge the Motherisk tests; and a trial
judge that held her decision in reserve for nine months.

Privacy laws that shroud child protection proceedings make it
difficult to answer many questions about this case. But the broad
facts, laid out in judgments and other publicly available court
documents, trace a complex family history marked by longstanding
involvement with children's aid, dating back to when the mother was a
child herself.

Her daughter, born in 2007, was deemed to be in need of protection by
children's aid in spring 2012. The concerns children's aid cited
included: the mother's history of drug abuse, admitted marijuana use
and involvement in prostitution; incidents of domestic violence
between the parents; the father's recovery from opioid addiction; and
both parents' mental health struggles. The girl, then 5, was placed
with her mother, under the supervision of children's aid.

That changed in fall 2012 when a hair-strand test performed on the
mother by Sick Kids' Motherisk lab came back positive for cocaine.

"(The child) was immediately apprehended based entirely on that now
totally discredited drug testing conducted by Motherisk," Campbell
said.

After the mother failed another hair test for cocaine, children's aid
applied for Crown wardship. The case dragged on for three-and-a-half
years until December 2015 - a passage of time Campbell said "is
reprehensible and cannot be justified or excused on any credible basis."

At the same time, big problems emerged at the Motherisk lab. The
controversy started in late 2014 after the Star exposed questions
about the reliability of the lab's hair-strand testing. The lab was
Ontario's most trusted provider of drug and alcohol hair tests for use
in child protection proceedings. But by the time the Kitchener trial
ended in March 2015, the concerns raised by an ongoing provincial
review and an internal probe prompted the hospital to suspend testing
at Motherisk. Sick Kids shut down the lab the following month.

Despite the mother's "repeated" claims that Motherisk results were
wrong, her lawyer "ignored those assertions and took no steps
whatsoever to bring any motion before the court, or to get competing
drug tests to challenge the Motherisk drug tests," Campbell said. (The
mother's marijuana use was previously known to children's aid and not
in dispute.) Drug use was among many concerns children's aid raised
during the trial. But "extensive attention" was given "to the
circumstances and unreliability of the Motherisk testing," Campbell
said. Yet there is "no evidence" that any of the lawyers for the
parents or the child, who was represented by the Office of the
Children's Lawyer, made a motion to have the child returned to the
mother, or for any other placement, he said.

"Basically, once Motherisk tests were received in and accepted, the
agency took the . . . position that the only reasonable result was for
Crown wardship and it passively acquiesced to the delays that ensued
and to which court contributed and exacerbated.

"The status quo created by the delays eventually dictated a reality
that all participants recognized, acknowledged and accepted," he said.

In her decision, released Dec. 15, 2015, the trial judge sided with
children's aid, issuing a "final order" to make the child a Crown ward
with no access.

She considered the Motherisk controversy and the independent review
that was underway, making reference to several hair-strand drug tests
the lab performed in this case. Because of "the concerns raised by the
investigation," the judge said she could not rely on the tests "to
establish on their own the presence or absence of any drugs." But she
also noted that when the child was taken, the mother had "not sought a
screen from a different laboratory" to challenge the Motherisk findings.

"It is not known what the ultimate findings by the independent review
will be," she said.

That same day, Justice Susan Lang submitted her report on Motherisk to
the attorney general, who released it Dec. 17. Lang found the lab fell
"woefully short of internationally recognized forensic standards," and
operated without sufficient hospital oversight. It produced results
that were "inadequate" and "unreliable" for use in child and child
custody cases, which has "serious implications for the fairness of
those proceedings," she said.

The Kitchener case is among more than 500 "high-priority" child
protection files that have been reviewed by the Motherisk commission,
which was established on Lang's recommendation to determine whether
the flawed tests were a key factor in the outcomes in individual cases.

In April 2016, commissioner Judith Beaman informed the mother that
after a "detailed examination" of the child's court file, she found
"no reasonable basis related to the Motherisk hair testing to question
the legal process or the existing status quo of the child." The mother
was among three women who applied for a judicial review of the
commission's decisions, claiming the process lacked transparency and
denied the parents an opportunity to participate. A divisional court
dismissed her application as premature, because she had not applied to
the commission for reconsideration of its decision.

Commission lawyer Lorne Glass said the commission stands by its
decision. "There were many, many reasons why that child was in care
and was made a Crown ward," he said. "What the Motherisk commission
said was that the Motherisk test results weren't overly relied upon by
the court."

The mother's new lawyer, Julie Kirkpatrick, who represented her in the
appeal, said she will not seek reconsideration of the commission's
decision because her client "did not find the commission's involvement
to be helpful in her case."

After the trial judge's ruling, the parents, who have not been able to
see their daughter in more than a year, initially sought to quash the
decision, but they abandoned their fight for custody, concluding it
was in their daughter's best interests to stay with her foster mother.

In his decision, Justice Campbell expressed deep regret for what the
family endured, while upholding the trial judge's Crown wardship order.

"As any informed observer of this entire unfortunate court process
would conclude, my conscience is shocked by the abuse of process and
the lack of procedural fairness," he said. "But to set aside the
decision and remit the matter to another trial . . . would damage and
threaten the child's stability even more."

Campbell agreed that adoption is in the child's best interests. But he
also found that contact with the parents, who share indigenous
heritage, would be both meaningful and beneficial to the child and
overturned the "no access" order.

Yet he said he is faced with a problematic reality: the foster mother
has "unequivocally" stated that she will not proceed with adoption if
there is contact. At the suggestion of the lawyers, he has made an
openness order but has stayed its enforcement, so that the parents,
the child and the foster mother may participate in a hearing, which he
set to start in May.

The "pathway" proposed by the lawyers "would appear to offer (the
child) a chance, (albeit a slim one) to extract herself from this
confusion, and move towards permanency," he said.

Alison Scott, executive director of Family and Children's Services of
the Waterloo Region, the children's aid that handled the case,
declined to comment on the specifics.

But she said the society will "take to heart all the considerations
that the court made about our role as a child welfare agency,"
particularly as it relates to First Nations families, which she
acknowledged "is a large area of development for us."
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MAP posted-by: Matt