K.M. v. Durham CAS, 2008 CFSRB 4

CHILD AND FAMILY SERVICES REVIEW BOARD

K.M.

v.

Durham Children’s Aid Society

REASONS FOR DECISION ON MERITS

Date: January 31, 2008 Citation: 2008 CFSRB 4 Indexed as: K.M. v. Durham CAS (CFSA s.61)

INTRODUCTION

1This matter is an application made the 5th day of November, 2007 by R.M. and K.M. (the “Applicants”) to the Child and Family Services Review Board (the “Board”) pursuant to the provisions of Section 61 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). The Applicants are appealing the decision by the Durham Children’s Aid Society (the “Society”) to remove a foster child, P.R.B., from their care.

2The Applicants are the foster parents of the child, P.R.B., born the […] day of September, 2004, and have acted as foster parents to this child since she was twenty hours old. They have acted as foster parents for the Society for the past six years and have fostered many children. The Applicants have three biological children, a son and two daughters. Both daughters continue to reside with the Applicants, and the Applicants’ twenty year old daughter, S.M.M., has a daughter, A.M.M., born the […] day of February, 2005 who also resides with the Applicants. The other daughter, J.A.M., is age fifteen.

3As a result of a serious occurrence which came to the attention of the Society on the […] day of October, 2007 involving J.A.M., the Society investigated and ultimately provided written notice to the Applicants on the […] day of November, 2007 of its intention to remove the child, P.R.B., from their care, as required pursuant to subsection (7)(a) of Section 61. This subsection provides as follows:

(7) If a child is a Crown ward and has lived continuously with a foster parent for two years and a society proposes to remove the child from the foster parent under subsection (6), the society shall,

(a) give the foster parent at least 10 days notice in writing of the proposed removal and of the foster parent’s right to apply for a review under subsection (7.1);

4The Applicants were also given notice of their right to apply for a review pursuant to the provisions of subsection (7.1) of the Act and did so. The relevant subsection provides as follows:

(7.1) A foster parent who receives a notice under clause (7)(a) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the proposed removal.

PRE-HEARING

5A Pre-Hearing teleconference took place to address procedural considerations in this matter on the 13th day of December, 2007 at the request of both counsel. It was agreed that the Society would proceed first and the Applicants would respond, and that the evidence in chief of all witnesses, except Dr. R.D.S., would be given by way of affidavit.

HEARING

6The Hearing took place in O. on the […] and […] days of January, 2008. It was agreed by all parties that there is no issue as to the strong and positive attachment which exists between the Applicants and the foster child, P.R.B.. The overriding concern of the Society is the potential risk to the child arising from the manner in which the Applicants addressed a serious occurrence in respect to their daughter, J.A.M..

7In summary, J.A.M. had been sexually abused by her cousin, R., who is two years older than her. This disclosure was made by J.A.M. to her mother on or before June of 2007. At the time the disclosure was made, the information provided by the child was limited, and the evidence of the Applicant’s mother is that she was asked to keep the disclosure in strict confidence by her daughter and, specifically, not to tell the Applicant’s father or anyone else. At the time of the disclosure, the Applicant’s mother suggested counselling to her daughter, which J.A.M. declined, and spoke with her daughter about the inappropriateness of sexual contact between cousins. The Applicant’s mother did not advise her husband, the Society or the authorities with respect to these concerns. The matter ultimately came to the fore on the […] day of October, 2007 when J.A.M. disclosed the sexual abuse to her school counselor. At that point, the Society became involved and removed all foster children from the care of the Applicants. The child, P.R.B., was returned the following Monday and the other foster children were not.

8The Society provided notice of intention to remove P.R.B. from the Applicants, as referenced above, having regard to the emerging concerns related to the Applicants’ failure to report the incident at the outset and thereby, in the view of the Society, failing to adequately protect the children in their care. It is significant that after the initial disclosure made by J.A.M. to her mother, the perpetrator was allowed in the home of the Applicants on at least two occasions. These events raised concerns for the Society with respect to the parenting capacity of the Applicants based on their lack of good judgment in managing J.A.M.’s situation.

9The Applicants, in their evidence, acknowledged serious errors in judgment in the way they had dealt with the situation involving their daughter, J.A.M.. They take the position that they have learned from the experience and there will be no similar occurrences in the future. The Society still has concerns that the Applicants do not fully appreciate the significance of their actions, or lack of action, and accordingly, remain concerned that the child, P.R.B., may be at risk in the care of the Applicants.

10At the same time as these events involving J.A.M. were unfolding, the Society had engaged the services of Dr. R.D.S. to undertake an assessment of P.R.B. with regard to the issue of her attachment to her biological family and also her attachment to the Applicants. When the serious occurrence came to the attention of the Society, that portion of the assessment involving the Applicants was cancelled. There was no report filed from Dr. R.D.S.. Dr. R.D.S. was called as an expert witness to this Hearing by the Society as a result of comments he had made to a Society worker expressing concern for P.R.B. should she be removed from her foster home. Counsel had agreed at Pre-Hearing that Dr. R.D.S. would give evidence without filing a report and would be qualified as an expert in the field of attachment. His evidence was so accepted by this panel. The Society is to be commended for arranging for Dr. R.D.S. to testify knowing that his evidence may not have supported the position being taken by the Society.

11The evidence of Dr. R.D.S. was relevant and helpful to the Board in making a “best interests” determination in this proceeding. Dr. R.D.S. spoke at length concerning attachment theory. He was able to speak from some personal knowledge in this case since he had met with P.R.B. on several occasions and was able to form his opinion on the basis of this contact and from his knowledge of the Society file. It is the opinion of Dr. R.D.S. that a very narrow window exists for successful transition of any child from a nurturing and stable environment to a similar environment. This window closes generally by the time a child reaches age five. P.R.B. is currently age three years and four months which Dr. R.D.S. characterizes as being at the latter end of the window and, accordingly, the risk to her from a major transition at this time is significant. Counsel for the Society, in her submissions, was candid in acknowledging that the possibility of the Society arranging for a transition for P.R.B. within the time window and on the ideal terms described by Dr. R.D.S. is remote. Dr. R.D.S. felt that there was a high risk to this child should she be removed from the Applicants at this time; this could result in serious emotional trauma and serious consequences for her in later life. Dr. R.D.S. spoke of the severe emotional response the child would experience as being similar to the reaction to the death of a parent. He indicated that the child would go through stages of grief ranging from anger, to depression, to indifference and perhaps, if fortunate, to acceptance. The concern for this child is that she may never move from depression, particularly since a child of this age is not able to rationalize these changes.

12The Society also called evidence from three Society workers.

A.F., Foster Care Services Team Supervisor, submitted that:

1. Through training, distribution of manuals, and communication with foster parents, the Society makes it clear that significant visitors to the home can be a risk to children and that approval of the Society is required. The Applicant had shown in the past that she had understood this requirement by seeking approval for visits by relevant persons.

2. The Applicant should have been able to identify her daughter’s disclosure of sexual impropriety as a serious occurrence that must be reported to the Society and this she did not do.

3. The Society did not commence supervision or protection proceedings regarding J.A.M. or A.M.M., following J.A.M.’s disclosure.

4. There are concerns regarding the Applicants’ current understanding of the issues related to this serious occurrence, and the Applicants’ capacity to react to situations of similar complexity and seriousness in the future.

13K.T., Crown Ward Worker, submitted that:

1. She met with P.R.B. on a monthly basis and had approximately twenty visits with her. There is a very strong bond between P.R.B. and her foster mother, and a particularly strong bond between P.R.B. and her foster father. P.R.B. has the reaction of a well adjusted child to her caregivers. P.R.B. is doted on and treasured by the entire family; she is the focus of family celebrations.

2. P.R.B. seemed upset by the events of November 2006 when she was removed for the weekend.

3. There is cooperation between the Applicants and the workers.

14P.M., Family Service Worker, Serious Occurrence Team, acknowledged on cross examination that:

1. There were several errors in her affidavit outlining the events leading to the Society’s decision. For example, there were errors regarding the date of P.R.B.’s birth and the relationship of R. and his half-sister, A..

2. As well, with respect to the Ontario Family Risk Assessment, several errors were made, thereby causing the total abuse score to be higher than it should have been, and the test results perhaps, to be of questionable validity.

The Applicants submitted that:

1. They have learned from this experience and would understand how to deal with serious occurrences in the future.

2. They understand their obligation to the Society and to the children in their care.

3. R. will never be allowed into their home again or to be in contact with P.R.B. or other members of their family. In fact, they have no contact with R.’s family, or R., who now live in a different city.

4. They understand what their responsibilities are to protect P.R.B., now and in the future.

ANALYSIS AND REASONS

15The issue to be determined by the Board is whether or not the child should be removed from the Applicants’ care having regard to the best interests of this child. In considering best interests, this panel has reviewed Section 37 of the Act and has taken into account all of the statutory considerations which apply in this situation. The Board in particular considered the following provisions in subsection 37(3) to be significant in this case:

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child’s physical, mental and emotional level of development.

3. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

4. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.

5. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

16The Board remained cognizant throughout that the definition of parent in s. 37(1) of the Act does not include foster parents.

17It is the decision of the Board not to confirm the proposal to remove the child from the Applicants. The Society is directed not to carry out the proposed removal. In making this decision, the Board has weighed the comparative risk to the child in moving her now as opposed to the potential risk to the child should she remain in the care of the Applicants. Based upon the evidence, the risk to the child in removing her now is substantial and will almost certainly result in serious emotional harm to the child which will impact her not only now but perhaps for the rest of her life.

18The Board is of the opinion that P.R.B. will be well cared for and protected from potentially abusive situations in future. However, the Board finds that the Applicants require additional support in understanding and appreciating these concerns now so that future risk is minimized. Notwithstanding that the best interests of P.R.B. are served by her remaining with the Applicants, the Applicants still must engage with the Society in order to elevate their parenting skills and ability to address complex issues in the future. This would be relevant not only with respect to P.R.B. but also for the entire family.

DECISION

19Subsection 8.6 of s. 61 provides as follows:

(8.6) 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.

20For the reasons set out above, it is the decision of the Board that the Society not carry out the proposed removal of the child, P.R.B., from the Applicants having regard to the best interests of the child.

Gregory Price Presiding Member

Ruth Ann Schedlich Panel Member

Celia Denov Panel Member