CHILD AND FAMILY SERVICES REVIEW BOARD
B.W.
v.
Windsor-Essex Children’s Aid Society
REASONS FOR DECISION ON MERITS
Indexed as: B.W. v. Windsor-Essex CAS (CFSA s.61)
1This is an application by a foster parent, B.W., to the Child and Family Services Review Board (the “Board”) for a review of the decision of the Windsor-Essex Children’s Aid Society to remove D.D. and T.D. from Ms. B.W.’s home. Ms. B.W. has provided foster care for these children continuously for more than five years. This review is conducted pursuant to section 61 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”).
2Under section 61 of the Act, the Board must determine what action is in the best interests of D.D. and T.D. and based on this determination, the Board must either confirm or rescind the Society’s decision to remove the children from Ms. B.W.’s care. Put simply, the Board must determine whether it is in the best interests of both children to be removed from the B.W. foster home.
BACKGROUND
(a) D.D. and T.D.
3B.W. has three children – two biological children and is the custodial parent of her brother’s daughter C.. Ms. B.W. took custody of C. because both of her parents are schizophrenic. Her one son experienced brain damage in grade 2 and is now a professor at [ ] University. Her other son is an electrician. She is a teacher by training and has taught grades 1 to 3 and special education. Ms. B.W. has been a foster parent with the Society since October 1998 and is a foster parent of E.T. today.
4On February […], 2004, D.D. (“D.D.”) born March […], 1999 and T.D. (“T.D.”) born March […], 2000 were made Crown Wards with no access. The children were four and three at the time.
5D.D. and T.D. were placed in the B.W. foster home on April […], 2003. The children had been in two previous foster homes. D.D. came to the B.W. home presenting with problems of aggression. The children remained in the B.W. foster home continuously until July […], 2008.
6While the children were in her care, Ms. B.W. traveled extensively with them. In 2005, she took them to the East Coast for five weeks and Disney World. In 2006, she took them to the East Coast again for five weeks and on a cruise. In 2007, she took the children camping for four weeks. She has traveled with the children to thirteen states in the United States. During these extended family vacations, Ms. B.W. traveled with the children on her own.
7Ms. B.W. testified that D.D. exhibited aggressive behaviours from the beginning of his placement with her. In 2005, the Society wanted to place D.D. in a residential treatment home because of the severity of his behaviour. Ms. B.W. involved the Residential Placement Advisory Committee and the Advocacy Office to stop the move. She was successful in doing so and D.D. remained in her home.
8D.D. had a psychological educational assessment with Dr. C. in 2005. Although Dr. C. found that D.D. was functioning with a Borderline to Low Average range of overall intellectual functioning, he believed his motivation and performance were adversely affected by his emotional and behavioural issues. Dr. C. noted that D.D. had severe behavioural difficulties that were interfering with his ability to learn and develop appropriate socialization skills. Dr. C. felt D.D. met the criteria for diagnoses of Attention-Deficit/Hyperactivity Disorder (“ADHD”) and Oppositional Defiant Disorder (“ODD”). Dr. C. recommended that D.D.’s behaviour be monitored as he was exhibiting behaviours suggestive of potential development of future conduct problems. Dr. C. believed D.D. might benefit from placement in a program that specialized in assisting children with developing more appropriate relationship skills, such as [ ] Child & Family Services. There is no evidence before the Board that D.D. was ever placed in such a program.
9Dr. C. conducted another assessment in 2006. Dr. C. concluded that D.D. met the criteria for a learning disability involving communication skills and continued to meet the criteria for ADHD and ODD. She found D.D. experienced significant behavioural and emotional difficulties arising from early childhood deprivation and loss of attachment figures. Dr. C. stated D.D. responded to structure and consequences, both in his foster home and his school. She believed any disruption to this structure would produce a very strong negative reaction. Dr. C. felt D.D. would benefit from a social skills group, in addition to learning problem solving skills to avoid the aggression he displayed. Finally, Dr. C. noted there was a strong bond between D.D. and T.D. that should not be disrupted. Dr. C. also found D.D. had a strong bond with Ms. B.W. which is why he listened to her and obeyed her.
10It is undisputed that D.D. has had behavioural problems throughout his placement in the B.W. home. The evidence before the Board is that these behavioural difficulties were also exhibited at school. While D.D.’s behavioural challenges are uncontested, the issue before the Board is his behaviour in 2008 and Ms. B.W.’s capacity to deal with it. The Society takes no issue regarding Ms. B.W.’s ability to be a foster parent of D.D. and T.D. until the Spring of 2008. As such, the relevant time period for the Board to consider is from March 2008 to September 16, 2008, the date the Society made the decision to permanently remove the D. children from the B.W. foster home.
(b) Escalation in D.D’s Behaviour Spring of 2008
(i) February to May
11In February 2008, D.D. began hiding fecal matter in his toys. Ms. B.W. testified that he told her he didn’t know why he was doing it. She showed him how to scrub out his underwear and explained why he couldn’t simply put it in the wash.
12On March [ ], 2008, P.K., the Society’s resource support worker, attended at the B.W. home. P.K. is the Society worker with the most direct involvement in the B.W. home in the Spring 2008. Unfortunately, Mr. P.K. was unable to give evidence before the Board because of the recent death of his spouse. Therefore, the best evidence the Board has concerning the Society’s observations in the B.W. home in 2008 are from P.K.’s notes, the accuracy of which is not disputed by either party.
13According to Mr. P.K.’s notes dated March […], 2008, Ms. B.W. described her struggles with the children and her concern for appropriate intervention. Mr. P.K. made the following comment: “B. seems to have a good understanding of D.D.’s needs”.
14P.K. returned to the B.W. home on March [ ], 2008. At that time, Ms. B.W. told him that D.D. was hiding bowel movements in the house. She also raised the issue as to whether D.D.’s medication Concerta was causing any side effects. Ms. B.W. told Mr. P.K. that D.D. could not problem solve or process information and that J.K. (a family friend) was teaching D.D. how to play games.
15P.K. had a further home visit at the B.W. home on March […], 2008. Ms. B.W. told him that D.D.’s behaviour had shown steady improvement over the past two weeks. She had not given him any medication and had spoken to the doctor and to J.J., the Child Support Worker, about this. In response to Ms. B.W. raising a concern regarding whether the school was meeting D.D.’s educational needs, Mr. P.K. agreed to review D.D.’s psychological assessment to see whether an Identification Placement and Review Committee (“IPRC”) had been recommended. Ms. B.W. told Mr. P.K. that she believed D.D. was not ADHD and that his behaviours could be managed. She stated further that she believed D.D. should continue in his soccer program for social skills training, but that the Society would not pay for it. Ms. B.W. advised Mr. P.K. that D.D. functioned well at home, accepting “time outs” and consequences. Mr. P.K. provided Ms. B.W. resource material about Asperger’s Syndrome and Concerta for her review.
16On April […], 2008, Mr. P.K. and J.J. visited the B.W. home. Ms. B.W. advised them that D.D. remained off his medication. Ms. B.W. told them that D.D. was isolated from his friends and was “after his sister all the time”. It appears from his notes that there was some discussion of a psychological-educational assessment. Mr. P.K. and Ms. J.J. were advised that D.D. was getting up at night and sneaking treats and that Ms. B.W. had some concerns about possible sexual touching of T.D.. Ms. B.W. discussed her frustration during this visit and expressed her inability to cope with the constant supervision that D.D. required. She stated further that D.D. responded to direction from her and was functioning well at school. At this visit, Ms. B.W. requested the following additional services: tutoring, programs to develop D.D.’s social skills and play therapy with C.B.. Ms. B.W. advised Mr. P.K. and Ms. J.J. that she felt the children were acting out over concerns about the pending adoption process, and that D.D. was bringing T.D. down. Finally, Ms. B.W. told the Society workers that on the previous Thursday, D.D. had tried to cut J.K. with a plastic knife.
17On April […], 2008, P.K. attended at the B.W. home. Ms. B.W. informed him that D.D. was back on his regular schedule of Concerta and that she had seen a positive change, with less acting out and more control. D.D. had done well at a Scout camp the previous weekend and no behavioural problems had been reported. She advised Mr. P.K. that D.D. was still sleeping upstairs due to her concerns that he would go into T.D.’s room unsupervised, but that she would try to return him to his bedroom downstairs. Ms. B.W. advised Mr. P.K. that an IPRC had been scheduled for the upcoming Friday.
18Mr. P.K. had a further home visit with Ms. B.W. on May […], 2008. He was advised that D.D. had been placed on a new medication – Adderall – and that Ms. B.W. would monitor the effect of the medication to see whether it lowered some of his aggressive reactions. Mr. P.K. was advised that Ms. B.W. felt she could not leave D.D. unsupervised, but that he did well on relief (respite) at the K. foster home.
(ii) June and July 2008
19On June [ ], 2008, Ms. B.W. advised the Society that D.D. had tried to drown T.D. in the pool. Ms. B.W. told the Society that D.D. had tried to do this three years ago and that he had broken T.D.’s arm in the past. Ms. B.W. told the Society that she was looking for some relief or possible replacement, that she believed D.D. was escalating and that she didn’t feel safe with him in her home. Ms. B.W. raised the fact that D.D.’s medication had recently changed to Adderall. Ms. B.W. was advised by the Society that there would be no relief or replacement at that time.
20On June […], 2008, Ms. B.W. asked Ms. B.A., a child protection worker, for a case conference. She repeated her need to have a replacement. She told Ms. B.A. that she would like to take D.D. back, but felt his behaviours needed to be addressed. Ms. B.W. was clear with Ms. B.A. that she was not asking for a permanent move. Ms. B.W. agreed to meet in two weeks time, but stated D.D. needed to be elsewhere until issues with his medication and behaviour were settled. During this conversation, Ms. B.W. told Ms. B.A. she did not want to permanently separate the children. Ms. B.W. expressed her desire to be the “forever mom” for the children, but felt she could not be that person for D.D.. She told Ms. B.A. that she didn’t have the financial means and no husband to help her during the teen years. Ms. B.W. advised Ms. B.A. that she was not asking to stop the adoption process, but rather, to have it continue in the background without the involvement of the children until a match was found.
21On June […], 2008, Ms. B.A. told Ms. B.W. that the Society was discussing her request for relief/replacement. Ms. B.W. told her she could handle the required supervision during the week, but felt some level of relief was required for the weekend.
22Ms. B.W. called Ms. B.A. on June […], 2008. She advised her in a voice-mail message that D.D. was in the side yard with a pine cone in his hand, ready to throw it at T.D.’s back. Ms. B.W. asked Ms. B.A. to refer this information to J.J., a child support worker.
23On June […], 2008, Ms. B.W. advised Ms. B.A. in a voice-mail message that she had a death in the family, that D.D. could not be left alone with T.D., that he was going after her and was wild. She stated she had not heard about relief for that day.
24On June […], 2008, Ms. B.W. reported another incident to Ms. B.A.. She left a voice-mail message stating that D.D. had been swinging a branch over T.D.’s head. She told Ms. B.A. they “had to do something”. Ms. B.W. initially stated she wanted a replacement for D.D., but subsequently reported she could manage for the night.
25Ms. B.W. called Ms. B.A. again on June […], 2008 and requested emergency relief until they could get treatment for D.D.. She told Ms. B.A. she was not trying to get D.D. out of the home and that she had worked to keep D.D. and T.D. together. She stated again that he needed some kind of treatment. She told Ms. B.A. that she had dealt with mental illness in the past with her brother and referred to D.D. as being mentally ill. Ms. B.W. repeated her view that she required emergency replacement. When Ms. B.A. suggested Ms. B.W. work with a Resource Support Worker to assist with safety planning, she said there was no more safety planning to be put in place. Ms. B.A.’s advised Ms. B.W. that the Society had heard her concerns about the need to assess D.D. further, but that they could not provide one on one support for D.D.. Ms. B.W. was advised that if she did not feel a Resource Support Worker was sufficient, the T. assessment treatment foster home was available to accept D.D. and T.D. for an assessment. Ms. B.W. indicated she was not in agreement that T.D. should go into a treatment home.
26On June […], 2008, R.S., a resource support worker with the Society, attended at the B.W. home. Ms. B.W. advised Mr. R.S. that she believed the Society wanted to put both children in the T. assessment treatment foster home and that she couldn’t understand why this was so when it was D.D., not T.D., that needed help. According to Mr. R.S.’s notes, Ms. B.W. stated she would like to adopt T.D. and keep D.D.. She also told Mr. R.S. that D.D.’s behaviour had worsened after he learned last fall that there was another attempt to find him an adoptive home. They spoke about D.D.’s current medication Adderall and Ms. B.W.’s concern about its impact on his aggressive behaviour. The Society was provided with a list of aggressive incidents at school from October 2006 to February 2008. Ms. B.W. told Mr. R.S. that she hoped D.D. could get help and that she had been trying to get people to observe him and his behaviours for a long time.
27Mr. P.K. attended at the B.W. home on June […] and […], 2008 to observe D.D.’s behaviour.
28On June […], 2008, Ms. B.W. attended a meeting at the Society with M.O. (support person for Ms. B.W.), J.J. (Child Support Worker), S.T. (Adoption Support), B.A. (Child Protection Worker), A.N. (Resource Supervisor) and T.K. (Children’s Services Supervisor). During this meeting, D.D.’s behavioural issues were discussed. Ms. B.W. was advised that the Society wanted to keep the children together in order for permanency planning (adoption). Ms. B.W. told the Society that she did not want the children to be separated permanently. Ms. B.W. advised the Society that it had become difficult to maintain D.D.’s behaviours in the home and that she believed the adoption process had been hard for the children because they had been with her for five years. During this meeting, Ms. B.W. told the Society that she wanted the following services for D.D.: weekend relief for D.D., E. and T.D. two weekends per month, case aid three times per week to spend time with D.D. and T.D. and social setting for D.D. to interact with peers. Ms. B.W. was told the Society needed to develop an assessment plan to meet D.D.’s and her needs, and that she had until June […], 2008 to decide whether she wanted D.D. and T.D. to have a 30-day assessment at the Society’s treatment home or to increase the supports in her home. The next day, Ms. B.W. advised the Society that she wanted the assessment to take place in her home.
29On June […], 2008, Ms. B.W. and the Society agreed that D.D. would be assessed in the B.W. home with the following supports:
Case aid three times per week
Sibling assessment conducted by Dr. O.
P.K./RSW to attend the B.W. home twice a week
Art/play therapy to be initiated
Relief twice a month; one paid by the Society and one paid by Ms. B.W.1
30P.K. attended at the B.W. home on June […], 2008. He was advised by Ms. B.W. that she had a difficult time with D.D. at E.’s school graduation. Mr. P.K. told Ms. B.W. that D.S., a Resource Support Worker, would be assisting him.
31On June […], 2008, Ms. S. and P.K. attended at the B.W. home for two hours. Although Ms. S. had been previously involved with the B.W. foster home, she had not been in the home since 2006.
32Ms. S. attended the home again on June […] for a little over an hour and on July [ ], 2008 for two hours and twenty minutes. Ms. S. observed the children in the B.W. home for a total of five hours. Ms. S. testified that she was not able to get a clear idea of D.D.’s behaviours during this time.
33On July […], 2008, Ms. B.W. left a voice-mail message with the Society after hours. She reported that D.D. had urinated down the heating vent in his bedroom and requested emergency approval for someone to assess whether there was mold in the home and if so, whether they needed to move out of the home. Ms. B.W. has a severe allergy to mold. She asked the Society to remove D.D. from her home.
34On July […], 2008 Ms. B.W. spoke to Ms. B.A. and stated she felt like a prisoner in her own home. She told Ms. B.A. that D.D. is a danger, a danger to T.D. and possibly a danger to himself. Ms. B.W. felt that the Society had provided a lack of services the previous two weeks and a lack of ideas from the resource support worker. Ms. B.W. agreed to have both D.D. and T.D. removed from her home.
35On July […], 2008, the Society gave a written proposal to Ms. B.W. that the children would be temporarily placed in an assessment home. Ms. B.W. continued to believe that T.D. should not be placed in an assessment treatment home because she felt that she did not need an assessment. She ultimately agreed that both children would be removed from her care. Ms. B.A. corroborated Ms. B.W.’s evidence that Ms. B.W. wanted D.D. removed from her home, but not permanently.
36Ms. B.W. was provided with a letter from the Society regarding the Society’s plan for D.D. and T.D. dated July […], 2008. In the letter, the Society advised Ms. B.W. that the children would be temporarily removed from her home for 30 to 60 days to conduct the following assessments:
Relationship and attachment between D.D. and T.D. by Dr. O.
Assessment of risk D.D. poses to T.D. through observation, redirection and intervention
Assessment of D.D.’s behaviours and the need, if any, of further services to address his needs
Assessment of T.D.’s behaviours and the need, if any, of further services to address any needs
37The children were placed in the T. assessment treatment home on July […], 2008. At the time the children were removed from the B.W. home, D.D. had not received any art therapy and no case aids had been provided to the home, as agreed to by the Society three weeks earlier. Ms. B.W. had received one weekend of relief for D.D. during the period June […] to July […], 2008.
(c) Children’s Behaviour After Removal From The B.W. Home
38D.D. and T.D. were removed from the B.W. home and placed in the T. assessment treatment home. The T. home is the only treatment foster home in [ ]. It is designated as an emergency assessment home and can accommodate up to four children. At the time the D. children were placed in the T. home, there were two other children in the home.
(i) D.D.
39D.D. acted out in an aggressive manner after his removal from the B.W. home as is evident by the following incidents:
On July […], 2008 he head-butted P.K. in the stomach;
On August […], 2008, D.D. punched and kicked another child in the T. home after the child had thrown a pillow at D.D.;
During camp from August […] to […], 2008, D.D. targeted and bullied two other campers and pushed a third male camper into the pool;
On August […], 2008, D.D. punched T.D. and pulled her ear on an outing with Ms. S.;
Upon returning to school in September, D.D. hit another student and received an in-school suspension on September […], 2008.
40On September […], 2008, four days prior to the Society deciding to permanently remove the children from the B.W. home, Ms. S. made the following observations about D.D. in her notes: “Escalating behaviour, rudeness, openly defiant, disrespectful, refusing to follow established house rules, testing boundaries, demanding, manipulating one foster parent against the other, manipulating foster parent (T.) vs. foster parent (B.W.)”. While D.D. had behavioural problems in the B.W. home, the uncontradicted evidence before the Board is that he listened to, respected and followed Ms. B.W.’s direction.
(ii) T.D.
41Ms. S. completed a behaviour profile for T.D. on July […], 2008, two weeks after her removal from the B.W. home. Ms. S. described T.D.’s behaviours as follows:
She responds to praise and encouragement. T.D. is eager to please those around her. She is very compliant and easily redirected. She is demonstrating age appropriate frustration – she’ll stomp her feet and frown. She minds her own business when adults are assisting other issues. She avoids conflict – she will not consistently seek out adults to assist her in problem solving. T.D. is very tolerant of others limitations. She can laugh at her own errors and behaviours. She has displayed immature coping skills as evidenced by the baby-like voice and escaping the issues by withdrawing from the area. She is very sensitive to chaos and negative peer behaviour occurring around her. T.D. will disengage from the activity and immediately revert to using the baby-like voice and withdraw herself to her room if the peer issue is not dealt with immediately. It [sic] the peer related negative behaviour is dealt with immediately and effectively T.D. will remain with the activity or in the area and the baby-like voice is not used. The baby-like voice tone is an indicator that T.D. is feeling uncomfortable and insecure and possibly not safe. T.D. does not voice her concerns thus making her an easy target as well as appearing to be a willing victim. T.D. can play independently.
42Ms. S. completed a further behaviour profile for T.D. on August […], 2008, six weeks after her removal from the B.W. home. She described her behaviours as follows:
She responds to praise and encouragement. T.D. is eager to please those around her when she chooses. She can be rude and disrespectful to all. She has been caught in numerous lies. She does not take responsibility for her behaviour. When confronted on behaviours she will lie and argue. She has been caught attempting to aggravate peers. She has started to interfere when adults are assisting peer related issues. T.D. is aware when peers are experiencing difficulty and has started to choose these times to make demands. She will not consistently seek out adults to assist her in problem solving. T.D. is very tolerant of others limitations for limited periods of time before letting the peer know that he is annoying her. She can laugh at her own errors and behaviours. She has displayed immature coping skills as evidenced by her arguing, glaring scowling and escaping the issues by withdrawing from the area. The baby-like voice, an indicator that T.D. is feeling uncomfortable and insecure and possible not safe, has been rarely heard. T.D. can play independently. If allowed T.D. would choose sedentary activities such as tv or movies as a constant activity. She requires a lot of encouragement to get outside and be active. She has started to demonstrate the ability to state her feeling in relation to the situation. T.D. does not like to be timed out but she’ll go and bang around in her room2.
(d) The K.s
43J.K. has known the D. children for three to four years. Ms. B.W. asked him to be a male role model in D.D.’s life and he has been D.D.’s special friend for the past year to year and one-half. He spends every Thursday night with D.D.. Mr. J.K. has seen D.D. and T.D. in Ms. B.W.’s home and in the T. home. He testified that D.D. shows respect towards Ms. B.W. and when there are behavioural problems, Ms. B.W. redirects D.D. and delivers consequences. Mr. J.K. stated he has observed Ms. B.W. being frustrated with D.D., as they all have been. When D.D. misbehaves, Ms. B.W. sends him on a time out. She never reacts to him and never yells. Mr. J.K. feels Ms. B.W. is able to handle her frustrations with D.D..
44Mr. J.K. testified that he has seen significant changes in T.D. in the T. home. She is more withdrawn and very much not herself. He described T.D. in the B.W. home as very bubbly and outgoing. He also testified that the B.W. home is much more nurturing than the T. home. He described the B.W. home as inviting and geared towards children of D.D. and T.D.’s age. He does not believe there is a natural (family) setting in the T. home. He stated there are minimal toys and games in the T. home and not much to captivate the children’s interests. Mr. J.K.’s evidence regarding the atmosphere in the T. home is supported by the fact that there is a camera to monitor children in the home.
45L.K., J.K.’s mother, also testified before the Board. She and her husband J. are alternative caregivers for D.D. and T.D.. She testified that Ms. B.W. does an excellent job parenting the children. She stated Ms. B.W. tries to provide for all of their needs to the best of her ability. Ms. L.K. described Ms. B.W. as loving, with a teaching attitude. She stated Ms. B.W. provides for the children physically, emotionally and spiritually, and teaches them love and respect.
46Both L.K. and J.K. testified that D.D. and T.D. think of Ms. B.W. as their mother.
(e) Visits With The Children Post Removal on July […], 2008
47On July […], 2008, Ms. B.W. filed her application with the Board. The first day of hearing occurred on August 18, 2008. The Society argued the Board had no jurisdiction to hear the application because it had not made a decision to permanently remove the children. The Society did not call any evidence in support of its motion. The Board ruled that it would proceed to hear the application, but was unable to complete the hearing that day. At the end of the hearing, the parties agreed to an access schedule whereby Ms. B.W. would see the children until such time as the hearing was completed and the Board rendered its decision. The first visit between Ms. B.W. and the children occurred on August […], 2008; approximately eight weeks after the children had been removed.
48There is no question that some of the visits between Ms. B.W. and the children, after their placement in the T. assessment treatment foster home, were difficult. The Board understands why this was so. Although the Board did not hear from the children directly, it is not surprising that they may have been very angry about the change in their lives and leaving a home that they had lived in for five and one-half years and away from a foster mother that they called “mom”. It is also not surprising that they may have taken out their anger on Ms. B.W..
49These visits were arranged by the Board, on the parties’ consent, to enable the children to maintain a relationship with Ms. B.W. pending the resolution of this application. The Society used these access visits to assess Ms. B.W.’s parenting skills and relied on its observations during the visits to support its case. The Board did not intend these visits to be an opportunity for the Society to assess Ms. B.W.’s parenting under incredibly difficult circumstances. Accordingly, the Board does not rely on the evidence adduced by the Society about these visits in its determination as to whether the children should be returned to the B.W. home.
(f) Decision to Remove Children From B.W. home
50The Society decided not to return the children to the B.W. home by letter dated September […], 2008. The primary reason for this decision appears to be that Ms. B.W. was having difficulty managing D.D. and the sibling conflict between him and T.D.. The Society believed the children had demonstrated success in many areas in the T. home, including sibling conflict resolution, and the Society did not believe the successes would be maintained if the children returned to Ms. B.W.’s care.
51Various witnesses for the Society testified before the Board and gave their rationale for this decision.
52Ms. B.A. testified that the Society believed Ms. B.W. could parent T.D., but not D.D.. She believed that Ms. B.W.’s parenting style was rigid and that she had difficulty meeting D.D.’s needs. She testified further that Ms. B.W. had pre-existing opinions about D.D. and imposes an intent to harm on him that may not be there. Ms. B.A. expressed concern about Ms. B.W. wanting to adopt T.D., but not D.D..
53Ms. S. testified that although Ms. B.W. provides a structured routine, she is not, as a single parent, able to maintain a level of consistency in addressing D.D.’s behaviours. It is for this reason, she testified, the Society is not recommending the children be returned to Ms. B.W..
54M.M., the Society’s Adoption and Research Supervisor, believes D.D. has not done well in a single-parent home. She feels D.D. needs a male role model and the Society has a responsibility to provide that. Ms. M.M. testified that children generally need male and female role models if they are going to successfully parent. She provided this evidence even though the Board was advised that of the Society’s 215 foster homes, 51 are led by single women. Ms. M.M. believes D.D. requires an immense amount of work that a single person cannot provide. Ms. M.M. testified further that if the Society is able to transition D.D. successful to adoption, he requires a male role model. She testified that D.D. has been clear with B.T., the Society’s adoption worker, that he wants to be in a “Black home, with a mum and dad”. Finally, Ms. M.M. testified that the team that works with the T.s, the Resource Support Worker, the Child and Youth Worker, the psychiatrist and the T.s have all stated the children will not leave the T. home until they are adopted.
55L.G., the Society’s Director of Resources, Adoption and Family Well Being, also gave evidence regarding the Society’s decision to remove the children from the B.W. home. She testified that Ms. B.W. was having tremendous difficulty dealing with D.D.’s behaviours, particularly in terms of his coping skills. She believes the T.s have been able to diffuse his behaviours and D.D. has also learned strategies to deal with his behaviour. The Society does not believe Ms. B.W. will be able to maintain that success. Ms. L.G. feels Ms. B.W. was asking for increasing relief and the Society wants to see D.D. and T.D. in a foster home without that level of support. Ms. L.G. expressed this view even though the additional support requested by Ms. B.W. was much less than the support provided by the Society in the T. home. Ms. L.G. does not believe Ms. B.W. has the ability to parent D.D. and T.D. on a long-term relationship and move them towards adoption. She testified further that the Society has seen an increased relationship between the siblings at the T.s. Finally, she feels Ms. B.W. is not always supportive about adoption and had asked that it not be brought up. She believes it is important for foster parents to support adoption planning.
56Finally, B.T., the Society’s adoption recruiter, testified before the Board. She was called as a witness on behalf of the Office of the Children’s Lawyer (the “OCL”). She confirmed that Ms. B.W. had expressed her concerns about adoption in August 2007 because the children had been disappointed in the past. She also gave evidence that she was aware that Ms. B.W. had attempted to facilitate a private adoption of the D. children by posting a bulletin in her church and confirmed that Ms. B.W. had successfully transitioned other foster children to adoption. Ms. B.T. stated Ms. B.W. had approached her about adopting T.D.. Ms. B.T. advised her that it would not be fair to D.D. to adopt only T.D.. Ms. B.T. stated Ms. B.W. appeared to accept her view and never raised the issue again.
(g) Children’s Behaviour at School
57The Board heard evidence from D.D. and T.D.’s teachers during the last academic year and the beginning of this school year. Ms. S2, D.D.’s grade three teacher last year, said D.D. did well in the classroom, but had a lot of problems in the playground with other students. She stated Ms. B.W. supported D.D. academically and confirmed that D.D. referred to Ms. B.W. as “mom”.
58Ms. K. was T.D.’s grade two teacher last year. She told the Board that T.D. seemed very happy living with Ms. B.W. and that she loved her very much. T.D. told her that she might be adopted from Ms. B.W.’s home and she was very worried about where she would go. Ms. K. told the Board that T.D. had asked Ms. K. to adopt her last year. She supported Ms. S2.’s evidence that Ms. B.W. was always involved in T.D.’s schooling.
59Ms. D. was T.D.’s grade 1 teacher in the 2006/2007 school year. She stated that T.D. referred to Ms. B.W. as “mom”. She said T.D. was very successful in her academics and that Ms. B.W. had contributed to her success. On the second day of school in September of 2008, Ms. D. told T.D. that she had driven by her house. T.D. became very sad and told Ms. D. that it was not her house any longer. T.D. told Ms. D. that D.D. had been bad and she had to move. T.D. told Ms. D. that she didn’t understand why she had to move when she didn’t do anything wrong. Ms. D. had also taught D.D.. She confirmed that D.D. referred to Ms. B.W. as “mom”. Ms. D. also testified that Ms. B.W. contributed to D.D.’s academics. She believed the children were very lucky to be with Ms. B.W.. She told the Board that it was not apparent to her that the children were in a single parent foster home and that in her opinion Ms. B.W. went “above and beyond”.
60Finally, the school principal, D.O. gave evidence before the Board. He testified that Ms. B.W. has been in contact with him more than a two-parent family.
(h) Dr. O’s Assessment
61Dr. O. conducted a psychological assessment of D.D. and T.D. to assess their relationship with and attachment to each other. Her reports were completed on September […], 2008.
62Dr. O. found that D.D. clearly presents with emotional and behavioural difficulties and recommended that he receive individual therapy over an extended length of time. Dr. O. noted that D.D. has suffered many losses throughout his life and abandonment by adults is a key issue of difficulty for him. Dr. O. recommended that D.D. be assessed to determine whether his cognitive profile is indicative of a non-verbal learning disability as her observations during her assessment were inconsistent with the findings of his previous cognitive assessments. Dr. O. opined that D.D. would benefit from participation in a small group structured activity that is highly structured (sports, cub scouts) to develop appropriate social skills and conflict management skills and provide him with an opportunity to foster a greater sense of self-efficacy and self-worth. Finally, Dr. O. recommended D.D. be followed by his pediatrician to determine whether a trial of Risperdal may be helpful in reducing some of his aggression and irritability.
63Dr. O.’s recommendations regarding services for D.D. are very consistent with the requests made by Ms. B.W. to P.K. in March and April 2008.
64With respect to T.D., Dr. O. found that she is generally coping well and demonstrates no significant behavioural difficulties although she noted T.D. would benefit from some social skills training in the area of conflict resolution and assertiveness.
65With respect to the sibling attachment issue, Dr. O. recommended that the children not be separated as they have a generally positive relationship with one another and would benefit from continuing to reside together. Dr. O. did not express an opinion as to where the children should reside.
(i) Hearing Before the Board
66After receiving the Society’s decision to permanently remove D.D. and T.D. from Ms. B.W.’s, the hearing before the Board reconvened on October 7, 2008. At that time, the children were represented by M.G. on behalf of the OCL. This is the first time the children were represented.
67The Society objected to the same panel reconvening the hearing because it had already heard from five witnesses on the first day of hearing on August 18, 2008. The Society took the position that to proceed with the same panel and a new participant (the OCL) constituted a “reviewable error”.
68The Board agreed to start the hearing over again at the request of the OCL. The Board ruled that there was no basis upon which to strike a new panel and determined the original panel would reconvene the hearing with the understanding that the parties could not rely on the evidence that had been adduced on August 18, 2008. The parties were advised that if they wished to rely on any or all of the earlier evidence, it would have to be recalled.
(j) Children’s Views
69Ms. M.G. met with the D. children on two occasions. Her first visit with both children occurred in the T. home on September […], 2008. At that time, T.D. told Ms. M.G. that her number one wish is to return home (the B.W. home). D.D. said he wants to go back to B.’s (Ms. B.W.’s) home. T.D. said she wants to continue to live with her brother.
70Ms. M.G. met with T.D. at the T. home on November […], 2008. She told Ms. M.G. that she wants to go home. She said she likes the T. home, but misses her real home at B.T.’s (Ms. B.W.) home. She told Ms. M.G. that although she had been at the T. home for a long time, she didn’t know D. (T.) as well as she knows B.T.
71Ms. M.G. met with D.D. at the T. home on November [ ], 2008. He said he wants to watch Star Wars 3 and Bionical at B.T.’s house and wants to return to Disney World with B.T.. His wish is to live at B.T.’s house, but he likes it at the T.s. When asked by Ms. M.G. if he felt torn between the two homes, he replied yes.
ISSUE
72The Board must determine if the removal of both D.D. and T.D. from the B.W. foster home is in their best interests having regard to the criteria set out in section 37(3) of the Child and Family Services Act.
DECISION
73The Board’s decision-making power is set out in section 61 of the Act which states:
The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm the proposal to remove the child or direct the society not to carry out the proposed removal, and shall give written reasons for its decision.
74In this case, the D. children were removed from the B.W. home and sent to the T. home on July […], 2008 for an assessment. The assessment has been completed and the Society has decided not to return the children to the B.W. home. The Society’s decision was communicated to Ms. B.W. by letter dated September [ ], 2008. Because the children have been removed from the B.W. home, the removal is no longer “proposed” and the Board must decide whether the actual removal is in the children’s best interests having regard to the factors set out in section 37(3) of the Act. The following factors are relevant to the Board’s determination:
the children’s emotional needs and level of development;
the importance for the children’s development of a positive relationship with a parent and a secure place as a member of a family;
the importance of continuity in the children’s care;
the merits (viability) of the Society’s adoption plan; and
the children’s views and wishes.
75The Society and Ms. B.W. agree that the children should remain together. While the Board agrees the children should be together in the long-term, they have different needs at this time. There is no evidence before the Board that T.D. requires the services of an assessment treatment foster home. There is evidence that D.D. does require that level of support. As such, it is the Board’s decision that the children should be returned to the B.W. home on a graduated basis. T.D. should be returned immediately and D.D. should be returned by June 30, 2009. This will allow the Society sufficient time to ensure that Dr. O.’s recommendations regarding the support that D.D. requires are implemented. The reasons for the Board’s decision follow.
ANALYSIS
76The issue before the Board is whether it is in the best interests of both children to be removed from the B.W. foster home. In making this determination, the Board must look at Ms. B.W.’s capacity to care for D.D. from the Spring of 2008 onwards. The Society does not dispute her ability to care for him prior to that time. The Society has never questioned Ms. B.W.’s ability to parent T.D..
77When considering the children’s best interests, the issue before the Board is not which home – the T. of B.W. home – is better for them. Although the Society has indicated a verbal commitment to keep the children in the T. home, there is no guarantee that they will remain there. The T. home is the only assessment treatment home in the [ ] area and the reality is the Society may not be able to keep both children there. The children may well be moved again. This could lead to a series of different placements.
78The Society argues that the children should remain in the T. home to prepare them for adoption. There is no concrete evidence that an adoption will occur. The evidence before the Board is that it is difficult to find adoptive families in the African Canadian community. In addition, older children are more difficult to adopt and it is likely that children like D.D., with significant behavioural needs, will pose further challenges to the adoption process. Indeed, the Board heard evidence that a potential adoption placement broke down at the disclosure stage – the point in time where information about the children was disclosed.
79The Board finds that it will be difficult to find a Black, two-parent family for these children. The reality is that these children may never be adopted. The Society’s belief that these children will be adopted is purely speculative. In any event, this is not an application to review an adoption placement under section 144 of the Act; it is an application under section 61 concerning the foster care of these children.
80The issue before the Board is whether the removal of the children from the B.W. home is in their collective best interests. In making this determination, the Board must look at the best interests of D.D. and T.D. individually. It is important to note that while everyone agrees these children should remain together, the placement that they require at this time may be different.
81T.D. has been negatively impacted by her removal from the B.W. home. This is evident from Ms. S.’s behavioural profiles on July […] and August […], 2008 which show a significant regression in T.D.’s behaviours post removal. J.K. also testified about the change in T.D. since her removal. The Board heard from one of T.D.’s former teachers, Ms. D., that in September 2008 T.D. was very upset about the move and did not understand why she had to be moved when she had not done anything wrong. It is clear that T.D. sees the removal as a form of punishment.
82D.D.’s behaviour has also been negatively impacted by his removal from the B.W. home. While D.D. had behavioural problems in the B.W. home, his aggression was directed towards his sister and peers. After removal, he continued to be aggressive toward his peers, but became openly defiant to adults.
83Although D.D.’s behaviour worsened post removal, the evidence is clear that he requires a significant level of support and has for some time. This finding is supported by the psychological assessments of Dr. C. in 2005 and 2006 and Dr. O. in 2008, and by the fact that the Society wanted to place D.D. in a residential program in 2005. It is also corroborated by D.D.’s school disciplinary record which shows thirteen incidents for physical aggression and verbal harassment during the 2006/2007 and 2007/2008 school years.
84There is no question that Ms. B.W. became unable to handle D.D.’s behaviour in the Spring of 2008. The Board notes that some of D.D.’s behaviours would be difficult for any parent to handle, for example, hiding feces in his room and urinating down heating vents. It is also apparent that Ms. B.W. had difficulty managing D.D.’s more innocuous behaviours and imposed an intent to harm that may not have been there. For example, Ms. B.W. saw D.D.’s actions with a branch and pine cone to be much more sinister than they likely were.
85Although Ms. B.W. had difficulty handling D.D. this past Spring, she had managed his behaviour for the previous five years as is apparent by the fact that she was able to take him on extended holidays for weeks at a time on her own. It is also a testament to Ms. B.W.’s parenting abilities that D.D. is doing very well academically at school in spite of his significant needs.
86D.D.’s behaviour this year was caused by many factors: difficulty determining the right medication; lack of programming to help with his social skills; failure to appropriately identify his special needs at school; and his need for one on one therapy. This support was requested by Ms. B.W. in the Spring and is the very support that Dr. O. recommended be implemented in her report in September 2008. The Board believes that had this support been provided in March and April of 2008, D.D.’s behaviour would not have been so difficult and Ms. B.W. would not have required additional support from the Society in the form of extra weekend relief, case aids and resource support workers. Put simply, had this support been provided, Ms. B.W. would have been able to deal with D.D.’s behaviours as she was able to during the previous 5 years.
87The Board does not accept the Society’s assertion that the support D.D. requires is tied to having a male foster parent. D.D. requires extensive supports from the Society and it is simplistic to suggest that all he really needs is a father figure. This also ignores D.D.’s history over the past three years. While the Board agrees D.D. would benefit from having a male role model in his life, this can be provided through J.K. and other social activities such as soccer, cub scouts, etc.
88The Board does not believe that the Society considered T.D.’s needs, separate and apart from those of her brother. Rather, once the Society decided D.D. should be in an assessment home, it placed T.D. there as well because she was D.D.’s sister. The Board questions the Society’s sacrifice of T.D. in order to meet the needs of D.D.. Had these children not been in foster care, it is unlikely that any parent would place two siblings into treatment care because one sibling required it.
89In light of the foregoing and when considering the factors set out in section 37(3) of the Act, the Board believes these children should be returned to the care of Ms. B.W. - the woman they refer to as their mother and to the family home that they have known for five years. This is also consistent with their wishes.
90The Board rescinds the Society’s decision to remove the children from the B.W. home and orders their return on a graduated basis. The Board orders that T.D. be returned to the B.W. home immediately. The Board orders the Society to return D.D. by the end of June 2009 when the supports recommended by Dr. O. (medication review, one on one therapy, social skills programming, psychological education assessment) are in place/completed to enable his successful transition back home. He can obviously be returned sooner if the appropriate supports are in place.
91The Board wants to be clear with the parties that it believes both children should reside in the B.W. home. The Board is unable to return D.D. immediately because it does not know whether Dr. O.’s recommendations have been implemented. The Board does not want to set him up to fail in the event the appropriate supports have not been put in place. The Board recommends that D.D.’s access to Ms. B.W. increase, especially over the Christmas holidays and afterwards, to facilitate his return home by the end of June 2009. The Board is confident that the parties can work this out.
Frances Sanderson Presiding Member
Jennifer Scott Panel Member
Ruth Ann Schedlich Panel Member
Dated at Toronto, Ontario on this 19th day of December, 2008