B.M. v. Children’s Aid Society of Hamilton, 2009 CFSRB 15

CHILD AND FAMILY SERVICES REVIEW BOARD

B.M.

v.

Children’s Aid Society of Hamilton

REASONS FOR DECISION ON MERITS

Date: April 17, 2009

Citation: 2009 CFSRB 15

Indexed as: B.M. v. CAS of Hamilton (CFSA s.144)

INTRODUCTION

1This is an application by B.M. (the “Applicant”) under section 144(3) of the Child and Family Services Act R.S.O. 1990, c. C.11 (CFSA) for a review of the decision of the Children’s Aid Society of Hamilton (the “Society”) to refuse her application to adopt J.B. (“J.B.” or “the child”). This application was heard on April 6 and 7, 2009 by video conference, on consent of the parties.

2The Applicant, who resides in [ ], Saskatchewan, is seeking an order rescinding the decision of the Society to refuse her application to adopt J.B.. It is her position that it is in J.B.’s best interests to be adopted by her because she was his caregiver for over two years and there is an existing bond. It is the Society’s position that because of the delays associated with the proposed adoption by the Applicant, it is in J.B.’s best interests to remain in Ontario and placed more quickly for adoption here.

3Pursuant to section 144 (11) of the CFSA, the Board must decide what action is in the best interests of the child and can either rescind the Society’s decision to refuse the application to adopt or confirm the Society’s refusal based on that determination. In making its determination, the Board is guided by statutory considerations relating to the best interests of the child. The relevant provisions of the CFSA on this application 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.

(2) The society or licensee who makes a decision referred to in subsection (1) shall,

(a) give at least 10 days notice in writing of the decision to the person who applied to adopt the child or with whom the child has been placed for adoption;

(b) include in the notice under clause (a) notice of the person’s right to apply for review of the decision under subsection (3)…

(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).

(11) The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm or rescind the decision under review and shall give written reasons for its decision.

4The best interests of the child are addressed in the Adoption section of the Act and in the “purposes” section of the Act. The following factors are relevant to this application.

136 (2) 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 importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

3. The child’s relationships by blood or through an adoption order.

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

5. The effects on the child of delay in the disposition of the case.

6. Any other relevant circumstance.

1 (1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

3. To recognize that children’s services should be provided in a manner that,

i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment,

iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests.

5The CFSA mandates that:

63.1 Where a child is made a Crown ward, the society shall make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family through one of the following:

1. An adoption.

6For the reasons that follow, the Board has determined that it is in J.B.’s best interests to be returned to the care of the applicant and for the Ministry of Social Services in Saskatchewan to proceed with the processing of her adoption application. Because of this finding, the Board rescinds the decision of the Society and offers recommendations regarding the processing of the adoption application in Saskatchewan.

BACKGROUND

7J.B. is 3 years of age. He will be four on September […], 2009. J.B. was born in Saskatchewan where his birth mother resided. At the age of approximately 5 months, J.B. was apprehended and placed in the Applicant’s foster care on February […], 2006. This was his home for two years, until January […], 2008. He resided in the home with two other foster children, sisters A. and R. During that time, the Applicant also cared for numerous other foster children on a less permanent basis. The evidence was that J.B. had a bond with the Applicant like that of a mother and child. Initially, the Applicant thought J.B. might be returned to his birth mother, but when it appeared that that would not happen, she began to express her interest in adopting J.B.. She also expressed an interest in adopting A. and R.

8J.B. had minimal, sporadic contact with his birth mother who at some point, moved to [ ], Ontario and had a baby girl (J.B.’s half sister: “sister”). In January of 2008, the child welfare agency in [ ], the Ministry of Social Services (“Ministry’), made a plan for J.B. whereby he would move to Ontario to live with his half sister and her paternal grandparents with a view to integrating him into his mother’s care. The [ ] Society then assumed carriage of J.B.’s care. J.B. had a difficult time leaving the Applicant and had a period of adjustment after his move. After approximately five months, the plan broke down as the mother was not following through and the paternal grandparents of the sister, felt they could not care for J.B.. Instead of returning J.B. to the Applicant’s care (an option noted in the file), the Society placed J.B. in foster care in [ ]. The Society did contact the Applicant to explore her interest in adopting J.B.. The Applicant submitted an application to adopt J.B., dated December […], 2008. The family worker and not the adoption unit had carriage of the process. After some contact with the Ministry, but minimal contact with the Applicant, the Society decided that it would refuse the Applicant’s request to adopt J.B.

9The Society asked the Ministry to convey its decision to the Applicant, which was done verbally on January […], 2009. In a letter dated February […], 2009, the Society gave the Applicant the following reasons for its refusal: (a) the Society was concerned that the Applicant’s application to adopt A. and R. would delay her adoption of J.B. because of the waiting or probationary period that was involved with multiple adoptions; (b) the Society wanted J.B. to maintain contact with his sister in [ ]; and (c) the Society was concerned about the Applicant’s financial situation.

10The Ministry subsequently wrote to the Society clarifying that the waiting period no longer applied with respect to multiple adoptions. Correspondence from one Ministry supervisor had expressed concerns about the Applicant’s finances and inquired about financially assisted adoptions in Ontario. Correspondence from the Ministry also suggested placing J.B. in the Applicant’s foster care until the adoption of A. and R. was completed.

11Although the Society was informed that the waiting period for multiple adoptions no longer applied, it continued to believe the adoption process would take longer in Saskatchewan than Ontario because the Ministry would not complete a home study for J.B. until the home study for A. and R. was complete and A. and R. had yet to be registered for adoption. Although the timing is uncertain, the adoption process could take up to a year in Saskatchewan compared to three to six months in Ontario.

12The Applicant has fostered 42 children over the course of the last three to four years. She has the strong support of the Ministry, as evidenced by the testimony of the three Ministry witnesses in this case, as well as reports on her foster care. She was subject to one investigation and learned from her error. The reports on the Applicant indicate that she has exemplary child care skills.

13The Applicant has four grown children. She raised three of her children as a single parent on social assistance. The Applicant is currently on social assistance which she augments with foster care, babysitting and respite care income. Saskatchewan’s social assistance plan is “full coverage”. It provides an allowance for each child and covers rent, utilities, school supplies, medical, prescriptions and dental.

14The Applicant has three children residing in the [ ] area. She has a daughter who is a Registered Nurse in [ ], with whom she speaks regularly. She has other foster parents for support as well as her long time boyfriend, R2.

15The Applicant has taken the PRIDE course which is required of foster and adoptive parents. In Ontario, home studies must be done before placements for adoption. However, where foster parents adopt, the child can remain in their care as foster children. The Ministry has commenced its home study on the sisters in the Applicant’s care; however because of resource issues, the girls have not been registered for adoption and the home study is not complete. There was no definitive timing given for either. The Ministry’s position was that it could not do a home study on J.B. until the girls’ study was complete. However, they wanted J.B. in the home in order to facilitate their home study of him and the plan to adopt.

16At the hearing, the issue of reversing the order of the proposed adoptions was raised. The Applicant advised that she would be making a request to the Ministry to place J.B.’s adoption and home study first and to put the girls’ home study on hold. The girls’ placement with the Applicant was not at risk and there was no other competing plan and thus they weren’t “going anywhere”. The Ministry adoption unit witness indicated that while she did not know the outcome of such a request as it was a management decision, such a request would be considered.

17The Applicant has maintained contact with J.B. since his move to [ ]. She has positive ongoing contact with his sister’s paternal grandparents and with his foster mother. She talks to him weekly on the phone and sends gifts for special occasions. The Society conceded her commitment to and love of the child. The Applicant advised that if she adopted J.B., she would maintain contact between J.B. and his sister via the sister’s paternal grandparents. The plan for the sister appears to be that her father will move in with his parents and help care for her. The Board inquired into this plan and the father’s view on access to J.B. Apparently, the sister’s father would support ongoing contact with J.B.

18The Resource worker from the Ministry considers placement of J.B. with the Applicant, as a foster child with an application and intent to adopt, a long term permanency plan. The Society’s evidence (although not from the adoption unit) was that the child could be placed for adoption, i.e. with someone who already had a home study and was approved, within three to six months or possibly less.

19The Society and the Ministry have both been involved in inter-provincial adoptions and protocols exist to facilitate these. A Saskatchewan Court and not an Ontario Court would have to finalize the adoption.

ANALYSIS

20The Board finds that it is in J.B.’s best interests to return to the care of the Applicant and to have her application for adoption proceed with the Ministry in Saskatchewan. This is so because of the pre-existing bond between the applicant and the child. In making this determination, the Board finds that the Society’s reasons for refusing the Applicant’s adoption application have not been substantiated. The Board addresses the reasons of the Ministry first, followed by the existence of the bond and the issue of quality of care.

Delay

21Delay is a concern in this case to all parties and to the Board. It is unclear why the Ministry cannot do one home study for all three children and why they cannot register the sisters for adoption more quickly. The Society still needs to find a match for J.B. and while placement may occur within three to six months, there was no evidence that any ground work was being done. The evidence was that if J.B.’s adoption were given priority by the Ministry, over that of the girls, it could go some way towards speeding up the process.

22The Society did not provide any evidence from the adoption unit directly and therefore, its opinion that adoption would take place within three to six months in Ontario is speculative. They did not provide numbers in terms of the available pool of adoptive parents, nor did they provide any information to suggest that workers had begun to explore a “match” for J.B. and who that might be. They advised that a match for J.B. would have to agree to contact with his sister which might limit the pool. However, most recent Applicants expect such a request. They did not know how many children were available for adoption and thus, competing with J.B. for placement.

23While there is no guarantee that the Applicant’s adoption of J.B. will proceed to court approval, there is similarly no guarantee that placement with new prospective adoptive parents would proceed to fruition. In both provinces, a child can be removed from an adoption placement prior to the final court order.

24In summary, the Society’s concerns about delay are addressed to large extent by the applicant’s undertaking to request that J.B.’s adoption take priority over that of the sisters. Given that the process in Saskatchewan consists of concurrent foster placement and adoption home study, it is possible that the process could be completed on par with an Ontario placement. However, should the alternate plan not come to be, the Board finds that the Society’s own time lines are speculative and do not offer any guarantees. The Ministry, the Society and the Applicant agreed that J.B. should be placed in his permanent home as soon as possible. Placement with the applicant is the only plan that achieves this goal with immediacy. There would be no further delay in terms of the permanent placement. The delay would be a legal one in terms of the child’s status. The child would not be cognizant of the delay because he would be placed in his long term home, regardless of his legal status. There was no evidence to indicate that the applicant would not be approved to adopt J.B.. Uncertainty is an unfortunate component of adoption. There is uncertainty in terms of finalizing J.B.’s adoption in both provinces. The Board is not satisfied that the delay and uncertainty raised in terms of Saskatchewan is significantly different from the delays and uncertainty in Ontario, given the option of placing J.B. immediately with the Applicant. In any case, concerns about delay are mitigated by the importance of the pre-existing bond between J.B. and the applicant, which is discussed below.

Sibling/Family Contact

25J.B. has known his sister in [ ] since he was approximately 2 and a half years of age. J.B. lived with her for five months and now sees her regularly. The Board accepts that this is an important relationship to J.B.. The Board is concerned with the manner in which information about the plan for the sister was presented. But for an email from the paternal grandmother of the sister to the Applicant, the Board would not have known that the plan was for the sister’s father to act as caregiver, which could impact on access to J.B.. The Society clarified that this plan will include the paternal grandparents and access to J.B.

26The Applicant testified that she would do whatever was necessary, including accessing seat sales, to facilitate J.B.’s relationship with his sister. The Applicant has a positive relationship with the sister’s paternal grandparents as evidenced from emails and the testimony of both parties. She is confident that those involved will be able to make arrangements to maintain this important relationship.

27The Board is satisfied that the Applicant, in the best interests of J.B., will take the necessary to steps to maintain the relationship between the siblings.

28The Board also notes that the child has a maternal grandfather and aunt living in [ ], with whom he had had some contact. These are relationships that were impacted by the move to [ ] and which should be explored. The evidence was that the Society did not follow up on these relationships. Thus there was no information on the viability of maintaining this contact with a [ ] adoption. The Applicant was prepared to facilitate contact with these family members as she had done in the past.

Financial Issues

29The Society’s position is that it was the Ministry and not the Society that raised concerns about the Applicant’s ability to raise three children, including J.B. on social assistance. Their witness maintained that if delay was not a factor, this issue would need to be examined further. While it is clear that Ministry correspondence references concerns about finances, taken in context, these concerns were not presented as being a bar to the proposed adoption. In any event, the resource workers from the Ministry who knew the Applicant and had worked closely with her over the years had no concerns about her ability to manage finances or her being on benefits. Neither did the Assistant Supervisor of the Adoption unit. The Saskatchewan benefits are comprehensive and cover all of the needs of the children and the family. The Applicant was described as well-organized and resourceful in terms of her finances. She keeps detailed records and monitors her finances closely. She has already demonstrated an ability to raise three children while on benefits.

30While the Applicant has expressed an interest in carrying out some respite care should she adopt J.B. and the sisters, she would be willing to give up this income if needed to devote her attention to her children. However, the evidence was that she had managed over 42 placements, babysitting and respite care with longer term children in her care. Further, the respite children were well-known to J.B.. The Board’s recommendation to the Applicant in this regard would be that during the transition of J.B. back into her care, the respite be put on hold.

31The Board accepts that the Applicant is resourceful and organized in terms of her finances and that she can support the child on the available provincial benefits.

32Given the above, the Board does not accept the argument of the Society that concerns about delay, the desire to maintain contact with the sibling and concerns about finances mean that it is in J.B.’s best interests to be placed for adoption in Ontario as opposed to returning to the applicant’s care for adoption purposes.

Bond

33The Board finds that the pre-existing bond, the secure relationship with the Applicant and the significance of continuity of care to the emotional well being of the child, all favour the Applicant’s position.

34The Board heard evidence that the child was attached to the Applicant during his two years with her. When Ministry workers visited the home, J.B. was affectionate with the Applicant, hugged her, sat on her knee and called her “mom”. J.B. would gravitate to the Applicant and not others, including his birth mother. The Applicant would sit with J.B. and draw with him. The Applicant clearly loves J.B. and is committed to him long term. This was not challenged by anyone. When J.B. moved from the Applicant’s home, he reacted negatively as a result of the anticipated separation and the actual separation from the home where he had lived for most of his life. He has demonstrated an ability to readjust, which the Applicant’s past Ministry resource worker attributes to his strong attachment to the Applicant. The Applicant has maintained consistent contact with J.B. which, according to her Ministry resource worker, means that the attachment has not been broken. The Applicant and her resource worker are certain that J.B. will remember the Applicant although he has not seen her in over a year.

35The Society worker and Ministry workers expressed concern regarding attachment issues for J.B. should he be moved further to a non-permanent home. The breakdown of the placement with his sister in [ ] did have a negative impact on J.B.. In the view of the Ministry resource workers, it would be easier for J.B. to re-adjust to living with the Applicant than for him to adjust to brand new surroundings. Introducing yet another new individual as caregiver would not serve J.B.’s emotional needs.

36The Board accepts the evidence of the Applicant and the two Ministry resource workers who have worked consistently with her and J.B. that the child has bonded to the Applicant. Further, the Board accepts that given the ongoing contact, this attachment has not been fully disrupted. The Board concludes that it will be much easier for the child to adjust to returning to the Applicant and her familiar home than it would be to adjust to placement with a stranger. It is in J.B.’s best interests to, in effect, place him with someone who has consistently demonstrated commitment and love to him and with whom he has a bond.

37To allow the adoption application of the Applicant to proceed is consistent with the principles in the Act that require the Society to develop a strong, secure and enduring relationship through adoption. To date, no other relationship has been more secure and enduring in J.B.’s life. There is no indication of any long term bar to the adoption plan. This course of action is also consistent with the best interests of the child in terms of the importance of developing a positive relationship with a parent as a secure member of the family and the importance of continuity of care. Given the pre-existing bond, the Board sees the plan of the Applicant as furthering these goals. As indicated above, this course of action is also the least disruptive as placement with another new person could impact on J.B. emotionally and in terms of his ability to attach.

38In addition to his bond with the Applicant, the child was in effect raised with the two sisters in the Applicant’s home. Based on the Applicant’s evidence, he was also very much integrated into and loved by her large family, including grandchildren of about his age. The Applicant’s home and her family, including A. and R. were J.B.’s home for two years. The Board is satisfied that it is in his best interests in terms of developing a secure place as a member of a family that he returns to this supportive environment through the adoption application process.

Quality of Care

39The Society did not directly raise the parenting abilities of the Applicant or the quality of her care of J.B. as an issue. Nonetheless, in the best interests of J.B., the Board examined this issue. Based on the evidence of the Ministry, including their reports, the Board is satisfied that the Applicant provided excellent care to J.B. and that her parenting skills are, overall, of a high calibre. The Applicant’s parenting skills include her care of at least three children at a time on a long term basis.

40The Ministry and its correspondence to the Society referenced an investigation in which the Applicant allegedly left young sleeping children alone to put out the garbage and go to a neighbour’s to pick up food. According to the Ministry resource workers, the Applicant agreed to never leave the children unattended. The Applicant was and has consistently been willing to learn and improve on her parenting skills. The investigation resulted in intense monitoring of the Applicant during which she demonstrated (on planned and unplanned Ministry visits) a high quality of care for the children. This high quality of care carried forward to the present. According to the June […], 2008 PRIDE Family Development Plan, Family Description, prepared by the Ministry,

…B.M. has shown tremendous attachment, consideration, empathy, wonderful care and love for a total of 42 placements...

…B.M. accurately identifies needs of the children, as well as her own needs for herself in terms of stress, support, advocacy and assistance in any way…

…B.M. is incredibly organized in terms of how her home works. This worker has not been in the home in the past 2 years; announced or unannounced where the home was disorganized or unclean in any fashion. This worker has always seen the children in the home as safe, well cared for, as well as very well provided for.

..B.M. in the past two years has been pretty creative in coming up with workable solutions with the behaviours of the children in her home.

41According to the 2008 Ministry Annual Review of the Applicant as a foster parent, she exceeded 9 of 20 expectations and met the requirements of the remaining expectations. She had no expectations identified as not having been met or being worked towards.

42The Applicant raised three of her four children as a single parent. She cared for J.B., A. and R. together, on a long term basis in addition to other foster and respite children. Through rigorous Ministry observation and assessment, she has been approved to have up to four children in her home for fostering purposes. She has achieved exemplary results on criteria used in both adoption and fostering. The Board sees no reason for the quality of care that she would provide to the same children as long term foster placements to be any different than that she would provide to them as her own children. The Ministry was not concerned about her ability to care for all three children and its witnesses supported her in doing so. Should the Ministry revise its position, it is open to them to do so as the adoption process progresses, with J.B. as the priority for adoption by the applicant.

43The Applicant has demonstrated that she has the skills to care for J.B. as a mother, including in a household with other children.

44The Society witnesses mentioned the Applicant’s health. In terms of her health, the evidence from her doctor’s report of March, 2009, was that although she has diabetes and hypertension, these and any other health matters are stable, under control and do not impede her ability to parent. Again, the Applicant has demonstrated an ability to care for small children over the course of four years without any health related issues.

45The Board finds no evidence of health concerns that would impact on the ability of the Applicant to care for the child or the quality of care.

CONCLUSION

46In light of the above, the Board rescinds the decision of the Society to refuse the application of B.M. to adopt J.B.

47The Society has requested that if we rescind its decision, we impose timelines to avoid further delays. The Board has made a finding that the action that is in J.B.’s best interests is that he be returned to the care of the applicant and that the Ministry in Saskatchewan proceed with processing her adoption application. The following recommendations flow from this finding and the consequent rescission of the Society’s decision. While we cannot bind the Ministry and the Society in this regard, the Board gives the following recommendations to them:

1. The Ministry should resume carriage of J.B.’s case from the Society.
2. J.B. should be returned immediately to the care of the Applicant, as a foster parent with intent to adopt, as part of a permanency plan.
3. The Ministry should complete a home study which includes or if necessary, is exclusive to J.B. within six weeks of the date of this decision. The Ministry should find that given its existing reports on the Applicant, this process can be expedited.
4. If the home study is positive, that J.B. be officially placed with the Applicant for adoption within three months of the date of this decision, including all necessary registrations.

48Given the decision of the Board and the direction to the Ministry and the Society, a copy of the Reasons for Decision will be sent to the Ministry of Social Services in [ ], Saskatchewan.

Ruth Ann Schedlich

Presiding Member

Sheena Scott

Member

Heather Hunter

Member