CHILD AND FAMILY SERVICES REVIEW BOARD

J.G. & A.G

v.

Windsor Essex Children’s Aid Society

REASONS FOR DECISION ON MERITS

Date: August 14, 2009

Citation: 2009 CFSRB 42

Indexed as: J.G. & A.G v. Windsor Essex CAS (CFSA s.144)

INTRODUCTION

1This is an application by J.G. and A.G. (“Applicants”) under section 144(3) of the Child and Family Services Act R.S.O. 1990, c. C.11 (“CFSA” or “ the Act”) for a review of the decision of the Windsor Essex Children’s Aid Society (“Society” or “Windsor Society”) to refuse their application to adopt S.B. (“S.B.”) or (the “child”), born July […], 2007. This application was heard on July 27 and 28, 2009. On August 4, 2009 the Board rescinded the Society’s decision to refuse the adoption application of the Applicants. These are the reasons for the decision.

2The Applicants, who reside in [ ], Ontario, sought an order rescinding the decision of the Society to refuse their application to adopt S.B.. It is their position that it is in S.B.’s best interests to be adopted by them because they have recently adopted her half-sister, C.. It is the Society’s position that it is in S.B.’s best interests to be adopted by her foster parents who have cared for her since birth.

3Pursuant to section 144 (11) of the CFSA, the Board must decide, based on the action that is in the best interests of the child: to rescind the Society’s decision to refuse the application to adopt or to confirm the Society’s refusal. In effect, the Board must decide whether or not it is in S.B.’s best interests to be placed with the Applicants and for the adoption application of the Applicants to move forward. 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 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.

Best interests of child

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 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 by blood or through an adoption order.

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

6. Any other relevant circumstance.

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

Other purposes

(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,

The 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.

5For the reasons that follow, the Board has determined that it is in S.B.’s best interests to be placed with the Applicants for adoption and consequently, to rescind the decision of the Society and for the application of the Applicants to adopt S.B. to proceed.

BACKGROUND

6S.B. is two years of age. She has been in the care of the Society since birth. She has lived with the same foster family since she was about three days old. She has a half-sister (“sister”), C. who was also in the care of the Society and who was placed for adoption with the G. family on May […], 2008.

7In June or July, 2008 the Society made a decision that it would plan separately for the two sisters. There appears to have been some discussion of placing C. with S.B. in S.B.’s foster home with the foster parents J. and C2.. However, this was ruled out because both girls had special needs. The Society decided that it would not place the sisters together or plan for them together in future. This was due in part to the timing of court dates regarding crown wardship and in part because of their individual special needs. The possibility of contact after adoption, through an openness agreement remains open to the sisters at the discretion of the adoptive families.

8The sisters had some contact - the extent of which is disputed- at access visits that were scheduled back to back with the mother. The sisters did not have regular access or contact. The Applicant saw pictures of them together and was told that they had some longer visits with each other during access with the mother. C. knows who S.B. is. The girls have another sister, H.. C. lived with H. while in foster care. The Applicants have maintained contact with H.’s adoptive parents (C.’s foster parents) and plan to have H. and C. visit in person.

9S.B. has global developmental delays. Her greatest special needs relate to mobility and speech. She was in physiotherapy with a local agency and made gains in this regard. She can now run and climb. Her speech is progressing at a slow pace but she has received services based on a referral from the same agency, [Agency], to assist with her language development. She uses some sign language in combination with some words. She has made recent progress with her speech.

10C. also has global developmental delays. She is doing well in her new home with her two fathers, the Applicants J.G. and A.G.. None of the behavioural concerns (e.g.aggression/resistence regarding hygiene) that were identified while she was in foster care have arisen in her new home. She is receiving appropriate supports given her delays. She has been taken off all medications. She has adjusted extremely well. This was confirmed by the Adoption Supervisor of the Hamilton Society who testified on behalf of the Applicants.

11C2. and J., S.B.’s foster parents live near [ ], Ontario in what has consistently been described as a “busy household”. There are seven children in the home, including S.B.. They care for N. a one year old baby who had open heart surgery a year ago, their adopted daughter K. aged 9 and her two siblings A. and C. who are aged 10 and 11. A. and C. are long term foster children whom the foster parents would adopt if they were available for adoption. A. and C. have developmental delays associated with a chromosome disorder identified as “Catch 22”. The foster parents’ adopted son C2, aged 13 also lives in the home. They also have a grown son and daughter who live in the area. The son works in the area and is in the house daily. They have another adult daughter who also lives nearby. They have a third adult daughter who lives at home and who is leaving to join the RCMP in [ ]. J. works shift work and C2. stays at home with the children. They rely on the adult children to help out. C2. is the primary caregiver for S.B.. The baby, N. requires medical follow up, including rehabilitation every few months but nothing significant in terms of day to day care. C. wears a hearing aid and has speech issues that are being addressed at school. He also has medical needs. He was recently fitted with a tube to flush out his bowels because he soiled himself regularly and has intestinal problems. A. has demonstrated behaviours such as picking at her arms, losing her temper, inappropriate reading of social cues and has been bullied at school. She has had a recent psychological assessment which is incomplete. The foster father testified that she has some psychological issues and that there could be issues “down the road”. She requires a lot of redirection to keep her focused. The foster mother is educated as a personal support worker (and not as a nurse as suggested in a Society document).

12The foster parents had an adoption homestudy done in 2003. This has not been updated and does not reflect current rating tools. The Society says that the homestudy could be updated quickly. The foster parents have not completed the required training for adoptive parents (PRIDE) but can do so in the near future given their training as foster parents and the availability of weekend courses.

13The Applicants have four children, all adopted and all of whom have special needs (including C.). The two girls, C. and J. are 6 years of age and play well together. C. is “happy go lucky”, is still in pull ups and eats well. She is in a life skills program and is talking more than before she was placed for adoption. J. is developmentally delayed and was not expected to perform well in terms of mobility. She now rides a bike. Possible future medical issues are being monitored and are not day to day. According to the homestudy on the Applicants, J. made an extremely positive adjustment to the home and many of her issues in care were not experienced with the Applicants.

14The two boys, P. and C. are aged 13 and 14 respectively. P. is globally developmentally delayed and has no behavioural issues. He is in a special education life skills program and is doing well. C. is not developmentally delayed. When he was adopted he had attachment, behavioral and learning issues; however, he is now secure and grounded in his home according to the Hamilton Society’s homestudy dated May 8, 2009. The homestudy reports that none of the children presented “with any concerning behaviours which is a real testament to the [Applicants’] parenting styles.”

15All of the children are of school age. As of June […], 2009 A.G. was on parental leave which will last for 37 weeks, until approximately the end of February, 2010. J.G. is a stay at home father. The Applicants had an adoption homestudy done in 2009 by the Hamilton Society. In it, they are consistently rated at the higher ends of the spectrum in terms of parenting and other related strengths.

16The foster parents love S.B.. To them, she is part of their family. They expressed an interest in adopting her in September, 2008. They were told that the Society was looking for a family that could devote more one to one attention to S.B. given her special needs. However, they continued to want to adopt her while the Society explored these options. According to the Society, they were never “off the table”.

17The Society’s plan for S.B. was to have her adopted into a family in which she would be an only child and have one to one attention to meet her special needs. This was in deference to the recommendation from [Agency], the agency supporting S.B.’s mobility and language needs. J. and C2. were not the Society’s first choice as an adoptive family. S.B. was “presented” to at least two other families who were considered for her ahead of the foster parents because she would be an only child in those homes and this was considered “ideal” because she could have individualized attention. These families chose not to seek to adopt S.B.. The Society’s position and evidence was that now, it is in S.B.’s best interest to be adopted by the foster parents because of the bond with the foster parents and their family and continuity of care with community services and in the home. The worker for the child had no concerns relating to the foster parents’ ability to care for S.B..

18The Applicants were involved with the Society because of their adoption of C.. In the materials they received about C., there was mention of S.B. who was a crown ward without access and mention of a letter from the birth mother about wanting to keep the girls together. During this process, a Windsor Society worker, Ms. T., spoke to them about S.B.. According to the Applicant, J.G., she suggested that they would be a good home for S.B.. The two sisters could be placed together. In early April, 2009, Ms. T. provided the Applicants with “full disclosure” about S.B. that contained identifying information (contrary to Society practice). Ms. T. suggested that the Applicants make their interest official. The Applicants did so and filed a letter dated May […], 2009 expressing their interest in adopting S.B.. The Applicants were led to believe that they would be chosen for S.B.. This was confirmed by the Hamilton Society who had worked with the Applicants. Based on these discussions with Society personnel, A.G. sought and obtained a parental leave. Further, the Applicants signed S.B. up for local programs and services to support her special needs and put her on a waiting list for a special education program. Apparently, the actions of Ms. T. were undertaken without the knowledge of the Director of Residential and Children’s services (Ms. G.) but with the knowledge of some others including possibly one supervisor in the adoption unit.

19When the Applicants did not hear back about their application, J.G. contacted Ms. G.. She advised that the Society had already decided that the foster parents would be approved as S.B.’s adoptive parents.

20On June […], 2009, J.G. contacted the foster mother C2.. He spoke to C2. about the Applicants’ wish to adopt S.B. in order for the siblings to be together. He advised C2. to the effect that if she withdrew her application to adopt, the girls could be placed together. C2. was confused. She had not been kept informed and had no idea that placing the sisters together was an option. She had not been told about any possibility of placement with the Applicants. Her worker was not the worker who had spoken to the Applicants. She followed up with her worker and was advised not to speak further to the Applicants. She and her husband continued to want to adopt S.B..

21According to the Society witness Ms. G., on the day that Ms. T. presented the Applicants to her supervisors, they had made the decision to place S.B. with the foster parents for adoption. The application and homestudy of the Applicants were not formally considered at the supervisory level to determine if placement with the Applicants was in the best interests of S.B.. In any case, Ms. G. advised the Board that given continuity of community care, that the Applicants had four special needs children, were not childless, did not meet the ideal match and that the Applicants lived out of town (out of the [ ] area) she may not have considered them had the timing/circumstances been different. None of the Society’s witnesses had read the Applicants home study and could not comment on it.

ANALYSIS

22The issue before the Board is what action is in the best interests of S.B.. The Board decided that placement with the Applicants was the action that was in S.B.’s best interests. In making this assessment the Board was guided by s. 136 (2) of the Act (the best interest considerations) and looked specifically at :

• what type of placement is best for S.B. given her special needs (s.136 (2) 1., 2. and 7.)
• what is the relative importance of the bond between S.B. and her foster parents and of her continuity of care (s. 136 (2) 5. and 7.)
• what is the relative importance of the blood ties between siblings (s. 136 (2) 6.)

23The Board did not attach any weight to the expectations of either the foster parents or the Applicants. The issue is not the expectations of the prospective adoptive parents or how they were treated by the Society, but rather, the best interests of the child. In this case, the Society acknowledged that it made a mistake. The “right hand did not know what the left hand” was doing. Two families were led to believe that they would be the family chosen for S.B.. Identifying information was given in the disclosure to the Applicants and the worker then tried to cover up her mistake. The process was a debacle and two families suffered for it. To the extent that it has contributed to delays and confusion in relation to S.B.’s adoption, she too has suffered. However, the sole consideration before the Board is what action is in S.B.’s best interests.

Type of Placement

24S.B. attended a [Program] program from April […], 2009 to approximately June […], 2009. This was a referral from [Agency]. The recommendations from the program were that her caregivers use specific language strategies from the sessions during routines, while singing, reading and playing with S.B.. It was also recommended that they increase play skills with peers. The Report from the program indicates that S.B. prefers to play alone. She communicates using eye contact, gestures, a few signs, pointing, reaching and has some vocabulary. By the end of the sessions, there had been some progress. The expectation is that the caregivers will follow up with the recommendations in the home. The agency can continue to be a resource, if needed. [Agency] is the primary agency involved. Their planned involvement with the Child was for one year, ending June 2009.

25In terms of her mobility, S.B. was not meeting developmental milestones and was clumsy, needing constant supervision. She made progress with physiotherapy through [Agency]. She is now mobile and active. Although no recent reports were provided, the foster mother testified that S.B. was in physiotherapy and they were working on going down stairs. The report from [Agency], dated September […], 2008 indicates an expectation that the foster parents will carryover activity recommendations on a regular basis at home.

26The Board finds that S.B. requires individual attention to help her with her developmental needs. The Board agrees with the Society’s original assessment on the recommendation of [Agency], that S.B. would be best off in a placement in which she could have one to one time. However, the Board does not feel that she must be an “only child” to receive due attention. The Board notes the recommendation of the language program and [Agency] that she increase play peer interaction. In its plan of care document, following crown wardship, with no access, the Society opined that given the busy nature of the foster household, “S.B. could really benefit from some more individual attention to help her address her developmental needs”.

27The Board finds that placement in the G. home would best serve S.B.'s needs in terms of type of placement. S.B. would have the benefit of one to one attention from J.G., a registered nurse, while the other children (all school age) are in school but would also have opportunities to play, particularly with C. (aged 6) and J. (aged 6).

28While he is on parental leave and then in the evenings, S.B. will also benefit from one to one attention from A.G. who learned how to sign to help a nephew. While the Society Supervisor, Ms. G. did not think that someone with signing experience would benefit S.B., the Board disagrees and finds that given her language delays and use of gestures, consistent access to someone with experience in facilitating communication through sign language would be beneficial to S.B.. The children P. and J. have picked up words through A.G.’s use of sign language. The Applicants have experience with dealing with and finding resources for children with special needs and have set up a range of appropriate supports for S.B., including a special education program once she is of school age. They have successfully put in place resources for their children both in the home and in the community. The Society Adoption Supervisor from Hamilton testified that based on her knowledge of the Applicants, placement with them would be in S.B.’s best interests and that she had no reservations of any kind.

29While [Agency] and [Program] played an important role in S.B.’s development, their involvement is now more limited. There is no reason that they cannot consult with the Applicants as they could with a local placement. Based on the information provided by the Applicant, the services in [ ] are centrally case managed, multidisciplinary and geared specifically to helping children with global developmental delays. The services include access to a developmental pediatrician, a speech and language pathologist and assessment and consultation about parenting, development, behaviour and communication. Further, the system in [ ] offers specialized life skills programs for children with developmental delays that the Applicant J.G. was advised were not available in [ ]. The Applicants’ children have done well using the [ ] services.

30Continuity of the Windsor [Agency] and [Program] services is not an issue that would prevent placement in [ ]. [ ] is well-resourced and the Applicants have demonstrated success in accessing and utilizing the services for their children. They have already registered S.B. with local services. There was no evidence to suggest that the Windsor services would not act as a resource to S.B.’s new caregivers or service providers. Finally, the emphasis of ongoing work with S.B. is by the caregivers, in the home.

31The Applicant J.G. indicated that in future, the family might move back to Ottawa. Should the Gs. move to Ottawa, the [ ] Society had confidence that they could access appropriate services there because of their experience in this regard. The Gs. were originally from Ottawa and successfully accessed services there for their children. They have resided in [ ] for one year.

32The foster home is “a very busy household”. Family members including adult children are in and out. The family also attends sporting activities as J. is a manager of a baseball team and one of the boys plays in a league. J. and C2 travel to overnight games together and the whole family attends weekend tournaments and local games. The children are involved in several activities outside of the home. J.’s schedule varies but he spends time with the children each day. While C2. spends as much time as possible with S.B., the household faces a number of challenges including time to meet medical needs and appointments and the emotional needs of the long term foster child, A. who has “Catch 22.” There is another baby in the home. Both the foster parents and the Society would at least consider the foster parents fostering more children should the baby move on. In addition, the adult daughter who resides with the foster family and who helps care for the children is moving to another province.

33The foster parents have worked with S.B. and she has made many gains. They understand her. S.B. is in day care half days approximately three and a half days a week because of the recommendation that she interact more with other peers. It is unclear whether or not her language needs are being consistently addressed in the day care and if so, by whom. The picture painted of the home by the various witnesses was that of multiple persons being in and out of the home and constant activity. S.B.’s Society worker testified that “if C2. needs to attend to other children or the baby or cook, there are the other children and J. and the adult children. She [S.B.] may not get the attention from C2. or J. but there are a lot of others.”

34The foster parents have done an exemplary job with the children in their home. For example, C2 came to them with “failure to thrive” and now plays baseball and hockey despite limited expectations. There is however, a one year old in the home as well as the managing of multiple activities and needs. They rely on their adult children to help them. The one adult daughter who lives in the home is moving. They have done their best to meet S.B.’s needs but as recognized by the Society, more one to one attention would benefit S.B. and is thus, in her best interests.

35In the circumstances the foster parents do not provide the consistent level of individualized attention by primary caregivers, warranted to best meet S.B.’s special needs. These needs are best met by the Applicants.

Existing Bonds/Continuity of Care/Sibling Bond

36An existing bond with a caregiver and continuity of care are important considerations in determining the best interests of a child. So too is the importance of a more forward looking bond in this case, that of the ties to a sibling by blood.

37The Board heard some evidence about attachment theory. The Board accepts that if a child has had a secure bond prior to the age of three, she will be more likely to successfully transfer that attachment. By all accounts, S.B. has a secure bond with J. and C2.. They are the only parents she has known. Her response to being in respite care was consistent with a child attached to her primary care givers. S.B. has also made an important bond with the other children in the foster home. The Board finds that given her ability to bond successfully, S.B. will likely be able at the age of two, to transfer her attachment successfully to a new adoptive family. This would include her new adoptive parents, her adoptive siblings and C..

38Given that S.B. can successfully transfer her attachment, it is in her best interests to be placed in the type of placement that best suits her developmental needs. The presence of her sibling in the Applicants’ home is a significant asset but it is not the deciding factor. The opportunity to be raised with a sibling is an important consideration that goes to the child’s emotional well being including her sense of identity. It also goes to her sense of belonging and her development of a secure place as a member of a family that includes her blood sibling, on a forward moving basis. There was no evidence to suggest that it was not in the interests of S.B. to be placed with C., provided their individual needs could be met. The evidence was that C.’s needs were being met and the Applicants could best meet S.B.’s needs including individual attention and peer exposure. At the time of foster placement, the Society did not have the option to place the children together where their needs could be met. This circumstance changed at the time S.B. was available for adoption. Where an opportunity exists to develop a sibling bond through co-residence it should be seriously considered and the pros and cons of options such as post adoption access to the sibling weighed in the balance.

39The Adoption Unit Supervisor from [ ] testified that while every child is different, it is that Society’s standard practice to place siblings together where feasible. Placing siblings together ranks high when making placement decisions and is one of the factors they consider first. The Windsor Society’s evidence was that each child is different and that in terms of sibling relationships, other types of contact, besides placement can facilitate the connection. Sibling relationships are secondary to meeting individual needs. The Windsor Society are not opposed to the adoptive families of the two sisters arranging contact.

40In this case, the Board is satisfied that since the individual needs of S.B. can best be met by the Applicants and she has the ability to transfer attachment, there is no basis to keep S.B. apart from her sister. The fact that the sisters may not have had a pre-existing relationship does not mean that S.B. should not be given the opportunity to develop and grow together with C. as sisters, with a link through their birth mother. This link will serve to positively foster S.B.’s sense of belonging and provide her with a substantive life long sibling relationship.

41Further, continuity of care, in the circumstances, does not outweigh the importance of the child’s individual needs. The foster family has experience and training in transitioning children from their care into adoption. The Applicants are open to maintaining a relationship with the foster family in the interests of S.B..

42The [ ] Society’s Adoption Unit Supervisor testified that foster parents are not given automatic priority for adoption even if the child has been with them for two years. Their Society looks to the other considerations. This is so because where a young child has had a secure attachment, that attachment can be transferred to a new home. This approach is consistent with the initial approach of the Windsor Society who looked beyond the foster family to meet S.B.’s individual needs.

CONCLUSION

43For these reasons, the Board finds that the action that is in S.B.’s best interest is that she be placed in the home of the Applicants, with her sister C., for adoption. Based on this action, pursuant to s. 144 (11) of the Act, the Board made the following order on August 4, 2009;

[T]he Child and Family Services Review Board:

Rescinds the decision of the Society to refuse the application of J.G. and A.G. to adopt S.B..

44This means that the Adoption application of the Applicants for S.B. must proceed.

Sheena Scott

Presiding Member

Celia Denov

Panel Member

Alina Lazor

Panel Member

Dated at Toronto, Ontario on this 14^th day of August, 2009

Child and Family Services

Review Board

Custody Review Board

Commission de révision des services à l’enfance et à la famille

Commission de révision des placements sous garde

DECISION ON AN APPLICATION FOR A REVIEW OF A REFUSAL OF AN APPLICATION FOR ADOPTION

BETWEEN:

J.G. & A.G.

Applicants

And

Windsor- Essex Children’s Aid Society

(“Society”)

Respondent

DECISION

Following the hearing on July 27 and 28, 2009 of the application of J.G. and A.G. for a review of the decision of the Society to refuse their application to adopt S.B. under section 144 (3) of the Child and Family Services Act, the Child and Family Services Review Board :

Rescinds the decision of the Society to refuse the application of J.G. and A.G. to adopt S.B.

The reasons for this decision will follow.