P.C. and R.R. v. CAS of the District of Nipissing and Parry Sound, 2008 CFSRB 48

CHILD AND FAMILY SERVICES REVIEW BOARD

P.C. and R.R. v. Children’s Aid Society of the District of Nipissing and Parry Sound

REASONS FOR DECISION ON MERITS

Date: May 26, 2008 Citation: 2008 CFSRB 48 Indexed as: P.C. and R.R. v. CAS of the District of Nipissing and Parry Sound (CFSA s.144)

1P.C. and R.R. (the “Applicants”) filed an Application with the Child and Family Services Review Board (the “Board”) on the 24th of January, 2008 pursuant to section 144 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”) being a review concerning a refusal of an application to adopt a particular child made by the Applicants, by the Children’s Aid Society of Nipissing and Parry Sound (the “Society”). The child they applied to adopt was J.B., born May […], 2006.

2A hearing was scheduled for the 29th of February 2008. The Parties had not completed their evidence at the end of that day, and further hearing days were scheduled for the 10th and 11th of April 2008.

PRELIMINARY MATTERS

1. Adding child as a party

3At opening of the hearing on February 29, 2008, the Office of the Children’s Lawyer (“OCL”) asked that the child involved be made a party to the proceeding as permitted by Rule 68(d) of the Rules of Procedure of the Board, and to be represented by the OCL. The Applicants had no objection to this motion. The Society initially objected to the motion, but consented when counsel for the OCL, Judy Shea, explained that her position would be to uphold the Society’s decision in this matter. The Order was made to add the child as a party, having regard to various considerations including the fact that the OCL had taken an active role on behalf of the child in the Crown Ward proceedings pursuant to the provisions of the Act, and it was likely that the OCL would assist the panel with respect to determining which action is in the best interests of the child.

2. Jurisdiction of Board to hear application

a. Motion by OCL –Applicants do not have standing to make application

4By letter dated March […], 2008, Ms. Shea notified the Board that she would be asking at the April 10 continuation of the hearing that the Board “consider its jurisdiction to continue”, in light of a recent decision by the Board in a s.61 matter, P. v. The Children’s Aid Society of the United Counties of Stormont, Dundas & Glengarry. Ms. Shea argued that, similar to the situation in that case, the Society in this case “has made itself judgment proof” by terminating the Applicants’ foster home as an adoptive home in advance of the hearing.

5At the April 10 hearing, Ms. Shea framed the issue as whether the Applicants have standing to make a s.144 application to the Board.

6With respect to jurisdiction, s.144(1) of the Act applies if:

(a) a society decides to refuse an application to adopt a particular child made by a foster parent, or other person.

7It is the position of the OCL that J.B. was not a Crown Ward and hence not a child available for adoption when the Applicants sent their request letter dated December […], 2007. Ms. Shea argued that the Applicants’ home was closed as an “adoption home” on November […], 2007, prior to the date that J.B. became a Crown Ward and available for adoption. As a result, there is no refusal of the Society to adopt a particular child.

8The Society agreed with the OCL on this point. The Society argues that the Applicants’ home had been closed as a “foster home” prior to their application to adopt. Further, that J.B. was not eligible for adoption at the time their foster home was closed.

9The Applicants take the position that their letters of November […] and December […] were applications to adopt J.B., and the Society’s letter of January […], 2008 was a refusal. The Applicants submit that the Board has jurisdiction to review the Society’s decision pursuant to s.144(3), which reads as follows:

Application for review

(3) A person who receives notice of a decision under subsection (2) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the decision subject to subsection (4).

10The Board found at the hearing that it had jurisdiction to hear evidence on the merits of this application. The Board does not believe its decision in P. v. The Children’s Aid Society of the United Counties of Stormont, Dundas & Glengarry is applicable for two reasons: one, it is a decision under s.61 not s.144 of the Act; and two, decisions made on section 144 applications are fact-driven. The fact situation which led to the Board’s decision in P. v. The Children’s Aid Society of the United Counties of Stormont, Dundas & Glengarry is different from this application.

11In the decision P. v. The Children’s Aid Society of the United Counties of Stormont, Dundas & Glengarry, the Society did not remove a child from a foster home. Rather, it “closed” the foster home and terminated contractual arrangements. The child remained in the home of the applicant. The s.61 application in that case, then, was an application to re-open the foster home, which the Board had no jurisdiction to do. Here, it is equally clear that the Board has no jurisdiction to re-open the Applicants’ foster home. Rather, under this s.144 application the Board is to determine whether it would be in J.B.’s best interest to be adopted by the Applicants. In our view it is a different question and P. v. The Children’s Aid Society of the United Counties of Stormont, Dundas & Glengarry does not apply. In any event, decisions of other panels of this Board are important to consider, but are not binding.

12The Applicants’ request to adopt J.B. was denied by the Society, which gives the Board jurisdiction to hear the application.

13The panel found at the hearing that the Applicants applied as “other persons” under s.144, rather than as “foster parents”, and proceeded to hear the remaining evidence.

3. Motion by Society – No jurisdiction because the matter has been previously decided by the Court.

14In another preliminary argument, George Olah, Counsel for the Society, argued that the panel has no jurisdiction because these matters were already decided by a Court. He pointed to the Crown Wardship decision dated December […], 2007, at pages 7 and 14 (Exhibit Book tab 5, pp. 10 and 46-47). There, Justice Duchesneau-McLachlan rejected the mother’s attempt to consent to Crown Wardship on condition that she could choose the adoptive parents, or negotiate an openness agreement with them. This relates to the current case, the panel was told, because the mother believed she could remain in contact with J.B. if he were adopted by the Applicants. The Judge noted that “the real problem is risk to the child in view of the mother’s lifestyle and immediate family”. Mr. Olah argues that the Society was not free to consider the Applicants’ application to adopt in light of this decision, and the Board is not free to review it.

15The provision in the Act, which prevents the Board from taking jurisdiction over a matter that has been decided by, or is before a Court, relates to s.68 complaints. The panel found that the Court has not decided the question that is before the Board under s.144 of the Act: i.e. whether it was in J.B.’s best interests to refuse the Applicants’ application to adopt him. The relationship between the Applicants and the birth mother, as well as the risk to J.B., should he be placed with them, is relevant to the issue to be determined in this proceeding.

BACKGROUND

16The Applicants have been J.B.’s foster parents for approximately one and one-half years, from May […], 2006 (when he was two days old) to November […], 2007. The Applicants were approved as a “foster home” by the Society on November […], 2005. They were approved as an “adoption home” on January […], 2006.

17J.B. was meeting all of his developmental milestones and the Applicants were never informed of any problems in their foster care of J.B.

18P.C. was given a YMCA pass by the Society, in order to take J.B. swimming. P.C. began to take J.B. swimming in July, 2007 and billed the Society for mileage charges to and from the pool.

19The Society became aware on November […], 2007 that the YMCA pass had expired, but that the Applicants had continued to file mileage claims for swim visits after that date. The Society held an internal meeting on November […], 2007, and decided to ask the Applicants to bring J.B. to the Society the next day for a meeting. At the November […] meeting, the alleged mileage discrepancies were raised for the first time with the Applicants, and the Society questioned P.C. whether she had even taken J.B. swimming during the time of the expired membership. The Society asked the Applicants to go to the YMCA immediately for verification. When the Applicants returned to the Society offices without written verification from the YMCA about J.B.’s swim visits, the Society removed J.B. from the Applicants’ care. The Applicants were given until November […] to bring proof of attendance at the YMCA.

20When the Applicants returned to the Society on November […], they were handed a letter informing them that their home was closed, effective immediately, as both a foster and adoption home.

21The Applicants testified that they sent an e-mail to the Society on November […], 2007, requesting to adopt J.B. The Society’s records show that this e-mail was never received. Nonetheless, the Society agrees that it received a letter from the Applicants dated December […], 2007, requesting to adopt J.B.

22J.B. was made a Crown Ward on December […], 2007. The requisite appeal period, during which he could not be adopted, expired one month later. G.H., Executive Director of the Society, signed a letter dated January […], 2008 to the Applicants, confirming that the decision to close their home as an adoption home on November […], 2007 meant their application to adopt J.B. would not be considered.

23As noted above, the Applicants then filed an application with the Board on January 24, 2008. The Board at this hearing must determine what action is in the best interest of J.B. having regard to the criteria set out in subsection 136(2) of the Act.

24The Applicants say that it is in J.B.’s best interest to be adopted by them. He has lived with them continuously for the first 18 months of his life, and feels secure and attached to them. They believe they have been responsible, caring and honest foster parents, and argue that the reasons given by the Society for their refusal, i.e. discrepancies in mileage claims, are neither founded nor sufficient to refuse their application.

25The Society says that is has lost trust in the Applicants due to the Applicants having claimed they took J.B. swimming but could not prove they had done so. They argue that trust is fundamental in choosing foster or adoptive families, and that lying about taking J.B. swimming means not only did they claim too much mileage, but that J.B. did not get the social interaction and physical stimulation provided by swimming, which the Applicants claimed he did.

26The OCL takes the position that the decision of the Society should be upheld because there are safety and security concerns for J.B. if he is adopted by the Applicants, relating to their relationship with the birth mother over the past months.

ANALYSIS

27Witnesses for the Society testified that the decision not to consider the Applicants as adoptive parents for J.B. was made on September […], 2007, at a “Permanency Planning Meeting” (“PPM”) (p.49 of Exhibit Book –R1).

28In March 2007 the Society was planning for J.B. being made a Crown Ward. As the casenote of S.R., found at pg 54 of Exhibit R-1, shows that at this time the Society was already planning to move J.B. from the Applicants’ home.

29The casenotes from that September […] meeting, and testimony at the hearing confirms, that the primary reason for making the decision not to consider the Applicants was risk to J.B. from his birth family. As noted by the Judge in the Crown Wardship decision, “Mother’s father is a convicted sexual offender and so are her two brothers, although one of them has passed away.” (at p.4 of the decision). When J.B. was born his mother was still a Society ward. She has apparently also exhibited dangerous behaviour. J.B.’s mother was initially granted access five days per week by the Court. As a result, she has had numerous interactions with the foster parents and knows them. The Society’s concern, clearly shared by the OCL, is that if J.B. is placed for adoption in the [ ] area, or with the foster family that his biological family knows, he will never have the anonymity needed for his personal safety growing up.

30An additional consideration in this matter was the involvement the birth mother had with the foster family. Counsel for the OCL forwarded a letter to all parties on November […], 2007 relating information given to her by the mother, that she would consent to Crown Wardship for her son if the Applicants were chosen as the adoptive parents. Counsel for the OCL presented information that the birth mother’s strategy in doing so, was to ensure continued access to J.B., and continued involvement in his life. Various Society witnesses agreed that the birth mother is extremely manipulative, and that she had consistently opposed the Applicants as adoptive parents, until the letter indicating her consent. It appears from the evidence that her about-face was motivated by the belief she could remain a figure in J.B.’s life, were he to be adopted by the Applicants.

31Counsel for the OCL underlined the additional risk factor this would pose for J.B. Ms. Shea put forward this safety consideration as the reason why it would not be in J.B.’s best interest to be adopted by the Applicants.

32On the issue of risk to J.B., the Applicants testified that they were not aware of the seriousness of the risk to J.B., should he be adopted by someone known by his mother or her family. They testified that they intend to move out of Ontario, and informed the Society of their willingness to move, if J.B. could not remain in the [ ] area. P.C. testified that she took J.B. swimming. She could not get written confirmation because the lifeguard who recognized her was not allowed to write a letter. The Applicants testified that J.B. met all his milestones and their care was never criticized. They felt that the Society was looking for a reason to take J.B. away from them, and pounced when they thought they found mileage discrepancies.

33With respect to the Society’s “decision” not to consider the Applicants, it is apparent from the PPM notes that D.G. and L.H. were to meet with the Applicants to inform them that they would not be considered as adoptive parents. This was never done. This decision was never communicated to the Applicants, despite testimony by several Society workers that it was clear the Applicants were hoping to adopt J.B., once he became free for adoption.

34The Society, and the Board in a review of the Society’s decision, must determine the “best interests of the child” in making adoption placement decisions, by considering the factors listed in s.136(2):

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 child’s cultural background.
4. The religious faith, if any, in which the child is being raised.
5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
6. The child’s relationships by blood or through an adoption order.
7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
8. The child’s views and wishes, if they can be reasonably ascertained.
9. The effects on the child of delay in the disposition of the case.
10. Any other relevant circumstance.

35The panel heard evidence that the Society workers had some “concerns” about J.B.’s attachment to the Applicants, which relate to points 1, 2, 5 and 7. J.B.(2), Child Protection and Child Care Worker, testified that J.B. would play happily with her during her regular visits, and would not fuss when she took him in the car for daily access visits with his mother. S.R., the foster care support worker, testified that she had some “concerns” about attachment because, on one occasion, J.B. was learning to walk and bumped his head on a coffee table, and then looked to her for comfort rather than his foster mother. This testimony contradicts an earlier statement found at page 55 of the Exhibit R-1, where S.R. notes, in a meeting which included J.B.(2), that the attachment between the Applicants and J.B. is very strong and that there were a lot of benefits to keeping J.B. with them.

36It appears, however, that these concerns were not serious enough at the time to raise with the Applicants in order to address them. The foster family support worker, whose job is to offer support to foster families in order to address concerns raised by the Society about a child’s care, never raised this issue with the Applicants. Nor did the Society have J.B. tested or observed by anyone, regarding “attachment” to his primary care-givers. The Applicants filed into evidence a milestones test which J.B. received at 13 months of age. It noted his attachment was normal, and that he should continue to be observed because the birth mother was not cooperative regarding disclosure of pre-natal behaviour that may have had some impact on the baby. Indeed, in the reasons for Order of Crown Wardship without access, dated December […], 2007, the judge noted at p.2 that “it appeared that the mother had been exchanging sex for drugs and so had absolutely no idea who the father might be.” There was no evidence regarding impact of illicit drugs at a pre-natal stage, to emotional development later in life.

37The Society workers who expressed concerns at the hearing, that J.B. was not attached to the Applicants did not convey their concerns to the Applicants. The Applicants were only ever told by Society workers that they were doing a good job as foster parents, and that J.B. was meeting all his milestones.

38The panel would have thought that, as “attachment” is a very important part of early childhood development, and extremely important for a child in the 0-2 age range, any Society concerns in this respect would have been acted on. That the Society raised this concern at the hearing indicates, in our view, some after-thought in order to strengthen the Society’s earlier decision not to consider these Applicants as adoptive parents. The panel puts no weight on the attachment concerns.

39In this case, the overriding factor is personal risk to the child as he grows up in a community where he will likely be known by his birth family. This factor would fall under point 10, “other relevant circumstance”. The risk to J.B. of growing up in a community where he and his foster/adoptive family are known, must be weighed against the benefit to J.B. to having him stay in a loving family where he has lived virtually from birth, to the age of 18 months. While the Applicants indicated that they intend on moving away from the area, and possibly to [ ], the risk remains because J.B.’s birth family knows the Applicants, have a history of stalking, and other family members reside there.

40Although both of these factors are important considerations when determining which action is in J.B.’s best interests, his long-term safety and security outweighs his need to remain in a home with foster parents who he has known for most of his short life. As such, the Board finds that it is in J.B.’s best interests that he not be adopted by the Applicants.

41When the Applicants were presented with this information in the hearing room, they better understood the Society’s decision around J.B.’s placement, and the reasoning behind it. It was extremely unfortunate that prior communication with the Applicants led them to believe that their application to adopt J.B. was rejected solely on the basis of alleged discrepancies in mileage claims. The Applicants testified that, had they understood the safety concerns expressed by the Society in the hearing, they would have cooperated with the Society in making a healthy and secure transition for J.B. from their home to that of an adoptive family. Instead, the extremely poor communication between the Society and the Applicants in this case caused an enormous disruption in J.B.’s life with no transition stage whatsoever.

CONCLUSION

42For the reasons listed above, the panel finds that the Society’s refusal of the Applicants’ application to adopt J.B. was in his best interests. The Board therefore confirms the Society’s decision.

Heather Gibbs Presiding Member

Denise Diaz Panel Member

Aida Graff Panel Member