V.T. v. CAS of Toronto, 2008 CFSRB 72

CHILD AND FAMILY SERVICES REVIEW BOARD

V.T.

v.

Children’s Aid Society of Toronto

REASONS FOR DECISION ON MERITS

Date: July 23, 2008

Citation: 2008 CFSRB 72

Indexed as: V.T. v. CAS of Toronto (CFSA s.144)

1The Applicant, V.T., applied to the Child and Family Services Review Board (the “Board”) for a review of the decision made by the Children’s Aid Society of Toronto (the “Society’) to refuse her application to adopt the child, J.H., born the […] day of August, 2007. A formal letter from the Society dated the […] day of May, 2008 was sent to the Applicant and her husband advising them of this decision as required by subsection (2) of section 144 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”). The relevant provisions of section 144 with respect to a review by the Board are as follows:

144(1) This section applies if,

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

(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).

2It is the position of the Society that it is in the best interests of the child, J.H., to be placed for adoption with prospective adoptive parents that the Society has now identified after a lengthy search process. It is the position of the Applicant that it is in the best interests of J.H. that she be adopted by the Applicant and her husband and that the decision of the Society to refuse this application to adopt be rescinded. A hearing took place before the Board in Toronto on June […], 2008.

BACKGROUND

3The Applicant, V.T. and her husband, I.T., are foster parents for the Society and in that capacity have acted as foster parents to J.H. from when she was two days old to the present time. J.H. is almost one year old.

4The Applicant is the biological mother of two children, a daughter age twenty-two, and a son age twenty-seven, and both children support the plan by the Applicant to adopt J.H.. The Applicant has been a foster parent for over six years now and J.H. is the first infant that the Applicant has fostered for any length of time.

5J.H. is of Somalian-Muslim background and has been a Crown Ward with no access since January […], 2008. The Society had previously found prospective adoptive parents for J.H. who withdrew their expression of interest. A second prospective adoptive family has now been chosen by the Society, but the adoption is now on hold pending the outcome of this application. On May […], 2008, the Applicant and her husband made a request in writing to be considered as adoptive parents for this child. A letter was sent by the Society on May […], 2008 to the Applicant and her husband advising them of the Society decision to refuse their application to adopt J.H..

EVIDENCE

6The Branch Director for the Society, H.M., gave evidence in this proceeding and confirmed that adoption planning for this child has taken place almost since her birth. She testified that the Applicant was generally aware of the plan by the Society that this child be placed for adoption and was kept apprised of all developments with respect to J.H.’s adoption.

7The Family Service Case Worker, R.C., who worked with J.H.’s biological mother prior to J.H. becoming a Crown Ward, testified that it was the biological mother’s desire to have the child adopted by a Muslim family of Somalian background, failing that, of Muslim background and, if necessary, by a non-practicing Christian family. Ms. R.C. confirmed that the biological mother is not aware that the child had been placed in a Christian home since shortly after birth and remains there today.

8Ms. H.M. testified that a branch planning conference took place on November […], 2007 as one of the first steps in arranging for a parenting placement for J.H. and that a formal adoption conference took place on December […], 2007, in which the Applicant participated.

9At the adoption conference on December […], 2007 (which took place before the child was legally available for adoption) a decision was made to look for adoptive parents who would be a cultural match for this child.

10The Society identified a first adoptive family on January […], 2008, but this adoption did not proceed as the prospective parents withdrew their expression of interest. This withdrawal was based on the fact that one adoptive parent was Christian and one adoptive parent was Muslim and, on receiving information as to the biological mother’s wishes, they chose to not proceed with this adoption.

11There was no plan by the Applicant to adopt J.H. after the first identified adoptive family had withdrawn. On April […], 2008 the Society selected a second adoptive family as being suitable adoptive parents for the child. On May […], 2008, a meeting took place at the Society office to speak to the foster parents about the second adoptive family that had now been identified.

12It was the evidence of the Applicant that shortly before May […], 2008, she had expressed some interest to G.C., Foster Care Resource Worker, that she would like to “keep J.H.” but had not verbalized any interest in adoption before that date. The Applicant indicated that after the first adoptive parents withdrew, she started to think about adopting J.H. and now believes strongly that the child should remain with her. The Applicant confirmed that it was in late April of 2008 that she and her husband formed an intention to adopt this child and that this intention was not formally made known to the Society until May […], 2008 after the second adoptive parents had been selected. The Applicant acknowledged that although she was present, she made no mention of her wish to adopt J.H. at any of the Society adoption conferences.

13A branch conference was held by the Society with the Applicants and other Society professionals on May […], 2008 at which time discussions took place concerning “best interests” of J.H. and relevant considerations including life stage, finances and the interest and love the Applicant has for the child. Following this meeting, H.M. sent correspondence to the Applicant and her husband, I.T., refusing their application to adopt the child, J.H.

14J.H. is described as being a “smart child” who is doing well and who has blossomed in the care of the Applicant. The Society affirmed that at all times, the Applicant had done a fine job of parenting J.H. but on balance, the Society believes that it is more important for the child to live in a family that shares her culture and religion than to be simply exposed to this by the Applicant.

15The Applicant gave evidence that her family is devout Christian, but that she would ensure that the child had the opportunity to attend a mosque on a regular basis and to be exposed to her culture and religion while growing up. Ms. H.M. spoke of the qualitative difference between being exposed to a certain religion or culture as opposed to having that religion and culture integrated into every day life (i.e. food, books, movies, dress, celebration and religion). Ms. H.M. also emphasized the importance in the future of the child having a cultural and religious match with her adoptive parents.

16Ms. H.M. had also spoken with D.F., Psychologist, whom she indicated opined that there should be no particular difficulty moving the child successfully into an adoptive home having regard to the child’s age and the fact that she had attached appropriately to the foster parents. Ms. R.C. described J.H. as being a healthy, beautiful and normal child who she also expects to transition successfully to a new adoptive family. It is her belief that it is important for the child to be aware of her mother’s wishes for her as this would be part of her roots and identity later in life.

17K.M., Adoption Worker, gave evidence that a biological mother’s wishes are now considered to be an important connection for the child to her roots and biological family and to help the child later in life through the process of identity. She also gave evidence with respect to the adoption procedure and spoke of the requirement for a home study and PRIDE training and the time required to complete both which is usually three or four months. The witness indicated that foster parents are required to complete the home study/PRIDE training process in order to adopt and indicated that a successful home study does not mean that a particular adoption placement will be available. As at the hearing date of June 26, 2008, the Applicant and her husband had not commenced the home study/PRIDE training process and, even upon completion, may not be found by the Society to be the best match for this particular child.

18Ms. K.M. spoke about multiple factors to be considered in choosing an adoptive family including race, religion, personality, advocacy skills, talents, hobbies, birth parent wishes and others. Ms. K.M. spoke of some of the challenges earlier on in finding a suitable adoptive family for this child. She described the second prospective adoptive couple as being an exceptional family where the culture and religion of the child would be respected. Ms. K.M. found the identified prospective adoptive parents to be open, accepting and welcoming. One is a teacher who understands child development considerations and together, they have a close support network of family and friends.

19Ms. R.C. also gave evidence with respect to the selected second adoptive family and spoke of their similar Muslim backgrounds, the fact that they have been approved to adopt, and that they are a two parent family with no other children and a couple who enjoy travelling and reading.

20A placement of the child with this couple could take place in two or three weeks and it was the opinion of Ms. K.M. that the sooner this child is placed, the better, since adjustment is more difficult as a child gets older.

21The Applicant, V.T., attested that J.H. is very comfortable in her home and cries and exhibits some anxiety when separated from the Applicant. The Applicant believes that the birth mother would approve of adoption placement with the Applicant if she had the opportunity to meet the Applicant and her family now. Ms. V.T. acknowledged that she would have been satisfied had J.H. been adopted by the first adoptive family since that was at an earlier stage in her life. However, it is now her belief that it would be disruptive to move J.H. from her home given the length of time that she has resided with the Applicant and her husband.

22The Applicant spoke of her future willingness to expose J.H. to her religion and culture and indicated that the child would participate in Christian traditions in her home and acknowledged that she cannot separate religion from the rest of her life. The Applicant believes in God, lives for God and regularly speaks openly about God. The Applicant spoke of her plan to obtain a Muslim mentor for J.H. and to make arrangements for her to go to mass at the mosque, to take her to the Muslim library and to facilitate the child having Muslim friends in the community.

23The Applicant acknowledged that although no efforts have been made by her or her husband so far to expose the child to her religion and culture, she would take whatever program or training as may be useful in the future to facilitate such exposure for the child. The Applicant did not present any evidence in support of her position in this proceeding other than her own brief testimony.

ANALYSIS

24The Society puts forward the proposition that it is in the best interests of the child that the Board confirm the decision made by the Society to refuse the application by V.T. and her husband to adopt this child. Pursuant to subsection (11) of section 144, the Board must determine which action is in the best interests of J.H.. The Society suggests that in considering the factors listed in section 136(2), the following are the relevant factors supporting the Society’s decision:

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

2. The child’s cultural background.

3. The religious faith, if any, in which the child is being raised.

25The Applicant in effect puts forward the position that in considering the best interests of the child, the Board should take into account the following factors listed in section 136(2) and make an Order rescinding the decision by the Society under review:

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

26It is the decision of the Board to confirm the Society’s decision under review so that J.H. may be adopted by the adoptive parents chosen by the Society, now on hold pending the outcome of this application. In coming to this conclusion, the Board has remained cognizant throughout of all of the provisions contained in section 136(2) of the Act and finds that the impact of delay is an important factor in this case. Subparagraph (9) reads as follows:

136(2)9. The effects on the child of delay in the disposition of the case.

27The child is currently at an age and stage of development where transition to an adoptive home has a higher probability of success. Further, there would be considerable delay in having this child placed for adoption should the Society decision be rescinded to allow the Applicant and her husband to now commence and complete the application process to adopt this child. The Applicant has not started the home study/PRIDE training process which would likely take about four months to complete and, even after completion, it is possible that the Society may not find the Applicant and her husband to be the best match for this child.

28In arriving at this decision, the Board has not placed any weight on the wishes of the biological mother with respect to her stated preferences for adoptive parents, but has taken into account cultural background and religious faith as being important legislated factors to be considered by the Society in choosing adoptive parents. In this case, the Society, after a lengthy search, has chosen adoptive parents who would appear to be a good match for the child and there should be no further delay in having the child placed with her new family in order to begin her new life as a member of that family unit.

29The evidence was unequivocal that the Applicant and her husband are considered to be exceptional foster parents and the result may have been different had the Applicant expressed an interest in adopting much sooner and had engaged the necessary and related adoption processes much earlier. It was of some concern to the Board that the Applicant’s spouse was not present at the hearing to give any evidence to support the application (although it appears the Application was also signed by him).

DECISION

30The Board finds that it is in the best interests of J.H. to confirm the Society’s decision to refuse the Applicant’s application to adopt J.H..

Gregory Price Presiding Member

Ruth Ann Schedlich Panel Member

Alina Lazor Panel Member