S.M. & K.M. v. Children’s Aid Society of Simcoe County, 2009 CFSRB 67

CHILD AND FAMILY SERVICES REVIEW BOARD

S.M. & K.M.

v.

Children’s Aid Society of Simcoe County

REASONS FOR DECISION ON MERITS

Date: November 10, 2009

Citation: 2009 CFSRB 67

Indexed as: S.M. & K.M. v. CAS of Simcoe County (CFSA s.144)

INTRODUCTION

1This is an application by S.M. and K.M. (the “Applicants”) 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 Simcoe County (the “Society”) to refuse their application to adopt D.B., born August […], 2008 (“D.B.” or the “child”). This application was heard on October 21 and 22, 2009.

2The Applicants, who reside in [City A], Ontario, are seeking an order rescinding the decision of the Society to refuse their application to adopt D.B.. It is their position that it is in D.B.’s best interests to be adopted by them because it will mean placement with his half sibling, their adopted son, A. and because they have extensive experience dealing with special needs children. It is the Society’s position that it is not in D.B.’s best interests to be adopted by the Applicants because he may have special needs and may require more attention than the Applicants can provide because they are already caring for their seven children, six of whom have special needs.

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. 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 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.

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 D.B.’s best interests to be placed with the Applicants for adoption and consequently, to rescind the decision of the Society.

BACKGROUND

7D.B. was born several weeks prematurely in August, 2008. The parties did not dispute that his “corrected age” is 12 months. The Applicants adopted D.B.’s half brother (“brother” or “sibling”) A., born October […], 2001, in 2004. Prior to his adoption in 2004, A. had been placed with the Applicants in 2002 as a 14 month old foster child. A. and D.B.’s mother had problems with alcohol and drugs during her pregnancy with A.. The parties agreed that while D.B. was at risk of having Fetal Alcohol Spectrum Disorder (“FASD”), he is too young to confirm this diagnosis. A. has been diagnosed with FASD. D.B. also faces potential challenges associated with being born prematurely, however to date, he has met his developmental milestones. D.B.’s respiratory functions need to be monitored until he is two years of age as a precaution. This is related to his being “premature”. New information has surfaced that raises a “red flag” about the possibility of autism for D.B.. D.B. lives in a foster family with a 22 month old baby, the foster parents and their two girls aged 12 and 10. He is described as loveable and smiling all the time. The Society had no concerns about his having bonded with his caregivers.

8The Applicants are experienced adoptive/foster parents for children with special needs. They also have experience in adopting two sibling groups. They have seven children including their non-adopted daughter, M.. The children in the family are: M., aged 15, A2., aged 10, K.A., aged 13, E., aged 11, K., aged 9, A., who is 8, and N., who is almost 5. K.A. and E. are birth siblings and N., K. and A2. are birth siblings.

9M. takes horseback riding and piano lessons and is active in her church youth group. She is a teenager and in 2007, as she was entering her teen years, there was a period of conflict between her and her father that resulted in him leaving the home for several weeks (the “separation”). The family did not notify the Family and Children’s Services of the Waterloo Region (“Waterloo”). When A2. came to the family, he was “street wise” for his age and very disrespectful. He may have post traumatic stress issues and has learning needs. Now he presents as a well-adjusted child. He is athletic and does gymnastics. K.A. had attachment issues when she came into the family in 2001. She has been on medication for anxiety and depression for a year and melatonin to help her sleep. She enjoys reading, art and music and is a swimmer. E. had temper/anger issues associated with attachment issues when she was placed for adoption at age 3. She now displays age appropriate behaviours and has learned coping skills. She takes piano and ballet lessons.

10K. was placed with the Applicants when she was four. She was being treated for leukemia and required follow up and assessment in [City B]. She also had a fear of men associated with her medical treatment. This fear was addressed in part through play therapy and is resolved. Currently, she is in remission and attends [City B] once a year for follow up. K. enjoys music, drawing and crafts. A. sings well and laughs a lot. He has been diagnosed with FASD. He was followed by an Infant Development Program until he was 3. He responds well to structure and re-direction. He is very smart and enjoys reading. N. who is almost 5 displayed symptoms of FASD at seven months of age. He had trouble sleeping. He was also followed by the Infant Development Program until age 3. He has had a psychological assessment and the Applicants worked with his pre-school on behavioural and social skills. N. likes to help cook.

11The Applicants have two children with FASD and several children who faced risks associated with pre-natal drug/alcohol use. They sought out and utilized community resources such as the Infant Development Program, assessments and their Paediatrician who has knowledge of FASD. They have researched FASD further and are familiar with the supports and resources needed and available. They have put in place strategies that work with A. and N. including monitoring, re-direction, structure and consistency. The older children are aware of what to look for and can also re-direct their brothers if needed.

12The children participate in activities outside of the home including going to the library, family hikes, extracurricular activities described above, as well as sports and outings with the home school association, church youth groups, scouts and baking and faith building at the church.

13The Applicant, K.M. (“Applicant mother”), home schools all of the children. The youngest child, N. participates to a lesser extent because he is at the kindergarten level. She has tailored the curricula and programs to suit the individual needs of each child. The three older children are motivated and do self-directed learning with assistance as needed. Two of them do the self-directed studies in their rooms. There is a school room with desks at the back of the house. The Applicant mother provides one to one assistance at different times to the younger children and to A. and A2. consistent with their special learning and attentional needs. The Applicant mother described a routine that was organized, yet flexible. The children assisted each other in certain circumstances. After school, the children go to the library, the park or play in the back yard, read or otherwise have free time.

14The family are all up by 7 a.m. except for the Applicant father who gets up at 9:30 on weekdays when he works evenings. The children dress themselves and help get their own breakfasts. The Applicant mother is available to assist. The children have a roster of chores. The two oldest girls sometimes assist with making lunch. The Applicant father works shift work at the local Toyota plant. For two weeks at a time, he is home during the day. He gets up at 9:30 and assists in the daily routine, subject to an afternoon nap. The Applicant father makes dinner either before he leaves for work or when he works days, when he comes home from work at approximately 5 p.m. The family eats together each night. The children read or play on the computer in the evenings. They have staggered bed times, based on age.

15The family has a four bedroom home. The living room is large and there is a dining room and a kitchen. Currently three boys share one room and three girls another, with M. having her own room. The plan would be for D.B. to sleep in the Applicants’ room in the short term. There is one full bath with a tub (no shower) and a half bathroom. There was evidence heard about possible renovations or the acquisition of a larger home. The house has a school room and an “L” shaped garage; part of which could be converted into living space. The house has a large backyard.

16The family has worked closely with Waterloo for at least nine years, over the course of their various adoptions. They have a homestudy that was done in April of 2001, updates on the homestudy for each adoption, and reports on the adjustment of each child prior to adoption finalization, as well as foster care reviews. No concern about the family was raised in any of these documents which indicated that the family had done an exemplary job, that the children had adjusted remarkably well and that the Applicants have accessed appropriate resources to meet the children’s special needs.

17On August […], 2009 a homestudy in the Structured Analysis Family Evaluation (“SAFE homestudy”) format was completed by a worker less familiar with the family who had met with the family in the winter of 2008. That homestudy was done for the purposes of finalizing A2.’s adoption. A2. had been living with the family for almost three years. The SAFE homestudy format is relatively new to all Societies and this was the first time the Applicants were assessed using this format. In the homestudy, concerns were raised about “judgment” because of the failure of the Applicants to notify Waterloo about the time that the Applicant father was out of the home for a six-week period in 2007 (“separation”) in light of the foster care agreement. There was also concern because the Applicant father had used anti-depressants in 2002. A recommendation that no further children be placed in the home was also contained in the SAFE homestudy, despite the fact that the homestudy was done for the purposes of assessing A2.’s adoption and he had been with the family for some time. The Board heard evidence about the inclusion of this recommendation and what amounted to disagreement about its content and inclusion in the report. The Applicants wanted to disagree with parts of the SAFE homestudy but signed it on June […], 2009 so as not to hold up A2.’s adoption. They subsequently wrote a letter and had a meeting with Waterloo, following which an Addendum was added to the SAFE homestudy. The Addendum, dated August […], 2009, changed the rating of concern relating to the use of anti-depressants but did not change the rating of the concern relating to judgment. With respect to the issue of placement of further children in the home, the Addendum stated:

It is the opinion of this worker that placing additional children in this home can be re-assessed as needed, keeping in mind the above assessment.

18The Society first learned that D.B. had a sibling in Waterloo’s jurisdiction in April of 2009. On June […], 2009, the Society contacted Waterloo and made inquiries about whether A.’s family would be interested in adopting D.B..

19Waterloo had communications with the Society that included advising them of the recommendation relating to no further children, but which also included reference to the fact that they could not send the homestudy containing that recommendation because further discussions were underway.

20On July […], Ms. A.B., the Waterloo worker most familiar with the Applicants, emailed the Society to query the possibility of openness and to raise the issue of advising the family that there was a sibling.

21On July […], 2009, the Society emailed Waterloo back that it would not consider the Applicants for adoption, but that the family could be told about D.B..

22The Applicants learned about D.B. on July […], 2009.

23On August […], 2009, Waterloo sent the Society a package that included a letter that spoke positively of the Applicants, the original homestudy, the homestudy updates, documents relating to foster care observations, the reports on the adjustment of the children done prior to each adoption being finalized, the SAFE homestudy and the Addendum to the SAFE homestudy.

24Following receipt of the information package, the Society made a team based decision that it would refuse the Applicants as prospective adoptive parents for D.B.. Its letter of September […], 2009, which it sent to Waterloo, provides the following reasons for refusal :

• The parents have six special needs children and need to focus their attention on them.

• The parents lacked judgment in not notifying Waterloo about their brief separation in 2007.

• Waterloo did not support placing more children in the home in the SAFE homestudy and in the Society’s view; the Addendum did not retract from that position.

• D.B. may have special and high needs including FASD and requires individual attention and every need nurtured without the parents having to worry about meeting the needs of other children.

25The decision to refuse was based on the June […], 2009 SAFE homestudy, the Addendum dated August […], 2009 and the Society’s interpretation of these documents. The Society’s evidence was that the Adoption Supervisor did not understand why Waterloo shifted its position on the issue of placing more children or how D.B. could be cared for and have his needs met in such a large family. She did not follow up with Waterloo for answers to her questions.

26The Applicants advised the Board that they felt that they had not had a fair process. A decision was made early on and then subsequently on a “final” basis without meeting with the Applicants to discuss their strengths, any concerns and to exchange information about D.B.. They had no opportunity to answer concerns or explain how they could meet D.B.’s needs. The Society advised that it was Waterloo that raised the concerns and that their decision was based upon these concerns.

ANALYSIS

27The Board finds that it is in D.B.’s best interests to be placed with the Applicants for adoption. The Applicants can accommodate the special needs that D.B. may face, they have undertaken to renovate to provide for another bedroom if the Society stipulates that as a requirement for adopting D.B. and can provide D.B. with a meaningful opportunity to develop a sibling bond with A.. The Board finds that in this unique case, on the balance of probabilities, the Applicants can care for one more special needs child in an environment that will ensure his best interests are met.

28The Board heard evidence from the Society’s Adoption Supervisor who made the decisions to refuse the application, S.D.. The author of the SAFE homestudy report, C.B. of Waterloo, also testified on behalf of the Society. Her evidence was that despite the recommendation in the SAFE homestudy, consistent with the Addendum, the ability of the Applicants to care for any further children should be assessed on a case by case basis. The foster mother testified about D.B., his routine and his needs. The foster parents are not seeking to adopt D.B., nor has the Society selected a prospective adoptive family.

29The Applicant mother testified as did her mother (“the grandmother”). The grandmother spoke of the level of need of several of the children but also of how well the Applicants had managed those needs.

30R.M., a Registered Nurse and former worker with Waterloo who placed one of the Applicants’ children, testified on behalf of the Applicants. She is now a family friend and support. She is the paediatric case manager at the local Community Care Access Centre, the resource for children with special needs including FASD and autism. She gave evidence about the supports available to D.B. in [City A]. It was her evidence that she would support the placement of a child with D.B.’s potential needs, including autism, with the Applicants.

31The Board also heard evidence from a current Waterloo worker, A.B., who has worked extensively with the Applicants family for approximately nine years. She did not agree with the cap on the number of children in the Applicants’ home. She testified that placement with the Applicants could be in the best interests of a special needs child despite the family size.

32The Applicants also called S.R. who is married to the Applicant mother’s brother. Ms. S.R. is the Manager of the Child Protection Team for [ ] County Children’s Aid Society and has known the Applicants for over six years. She lives within walking distance and has observed and interacted with the family frequently.

33The Board places the greatest weight on the evidence of those workers and witnesses who have spent considerable time with the Applicants and have observed their family. The Society’s Adoption Supervisor did not meet the Applicants and was clearly influenced by the SAFE homestudy. The author of the SAFE homestudy spent less time than her colleagues with the Applicants. She testified in any event, that her report was for an audience (Waterloo) who knew the family well and would therefore know their strengths. The Board accepts her evidence that the SAFE homestudy report must be read in this context and that further, she modified her position in the Addendum to reflect that a case by case assessment needed to be done regarding further children in the home.

34The Applicant filed two letters of support from individuals who were not available for cross examination and one medical report from a doctor who was also not called. In light of the extent of the evidence called by the Applicants, the Board did not rely on the letters of support and placed minimal reliance on the doctor’s report. The decision of the Board would have been the same without the doctor’s report which serves to corroborate the testimony of other witnesses, which the Board accepted in any case.

35The Society’s main argument was that the Applicants could not meet the child’s physical, mental and emotional needs under subsection 136(2)1 of the CFSA as they pertained to his physical, mental and emotional level of development under subsection 136(2)2. The Society believed the child’s development might be impacted by the risks associated with his being premature and possibly having FASD and/or autism. Their primary concerns relate to the size of the family and the special needs of six of the seven children. In this regard, they also referenced the stresses that the teen years will bring to the Applicants and the sleeping and bathing facilities. They also raised some questions about finances in light of the family size.

36The Society’s other concern relates to the Applicants not notifying Waterloo of the period of separation in 2007.

37Ms. D., the Adoption Supervisor from the Society, testified that she felt D.B.’s needs would be better met in a home with no children; however they would consider a home with children. She agreed that experience dealing with special needs children would be beneficial for D.B. but felt that for a childless couple, this could come from working with special needs children. She was not aware of the number of approved adoptive parents in the Society’s pool of possible parents that had no children and had experience dealing with special needs children.

38The Board accepts that D.B. may have FASD and risks associated with pre-mature birth. However, the Board heard that D.B. sleeps through the night and that he has met all of the milestones for his adjusted age of 12 months. He has good eating and sleeping habits. Currently, D.B. is not receiving any physiotherapy or occupational therapy. He cannot however, hold his bottle or sippy cup and has “floppy joints”. An assessment was done on D.B. the day before the hearing that “red flagged” autism. The early “red flags” for autism cited were that he says only one word, has low social communication, isn’t pointing and has limited eye contact, no gestures and has some atypical play. The foster mother who testified was not present when the assessors presented their findings, nor did they discuss them with her. The Society did not call a member of the assessing team to testify as to the likelihood of D.B.’s having autism, the similarities if any between symptoms of autism and FASD, or the basis for their “red flagging” autism in a one year old. The foster mother described D.B. as “happy”. He is also described as interactive, having a personality, being good natured, smiling all the time and a self-soother. On cross examination, the foster mother noted that D.B. didn’t communicate well with them and was not as engaging as other babies. Given the inconsistencies in the description of D.B., it is unclear how significant the “red flagging” of autism is. However, the Board accepts that it is possible that D.B. may have autism which is a spectrum disorder with varying degrees of severity.

39Despite the uncertainty associated with all of the prospective risks, the Board accepts that D.B. may have these needs, including autism. These risks and uncertainties will prevail for whoever adopts D.B..

40When presented with the possibility of autism, the Applicants did not change their position in terms of wanting to adopt D.B.. Further, the Applicants have such a high level of demonstrated ability to access resources to meet the special needs of their children that the Board accepts that they would do so for D.B.. Further, they called evidence from the community service that coordinates and links families to autism services.

41The Applicants have been faced with children with what seem like insurmountable difficulties. In each instance, they have met the child’s needs while managing their large family. In each case, the evidence shows that the needs have been met and managed so well that the children are safe, well-behaved and get along with each other. For example, A2. presented with defiance. Now, A2. is respectful and helps his siblings, an example of which is teaching N. how to catch.

42K. was diagnosed with leukemia. The Applicants took her to her appointments in [City B] and followed up as needed. They took appropriate steps to and did resolve her fear of men. K.A. is on medication and is being followed by the paediatrician for her anxiety and depression. E. is secure in the family and her temper issues have resolved. There was no evidence of persistent, day to day concerns presenting with any of the female children at this time.

43The children flagged for potential future diagnosis of FASD or related concerns were followed by the Infant Development Program in [City A]. Currently, the Applicants manage the day to day aspects of FASD for N. and A. with reassurance, consistent rules and discipline, clear expectations and re-direction.

44The evidence was consistent that the Applicants’ children were succeeding in school and that the Applicants ensured that special learning needs were identified and met.

45In her August […], 2009 letter to the Society, the Waterloo Adoption Supervisor wrote:

Each child in this home has already reached goals not thought possible given the circumstances of their birth family history

46The Applicants have investigated the supports that would be available to D.B. should he be placed with them. Ms. R.M. is the paediatric case manager for [City A] Community Care Access. She would assess D.B.’s needs. Her role is to ensure that the family has the support it needs with respect to FASD and autism. She would assess whether or not D.B. needed occupational therapy, physical therapy or speech therapy for example. Depending on his needs, he would also have access to social workers and to a personal support worker in the home on a full time basis during school hours. Home school families do not have a waiting list for personal support worker or for the therapies that are offered in the home. In terms of autism, because it is a spectrum disorder with varying degrees of severity, the services available would depend on the age and needs of the child. D.B. would start initially with Community Care Access who go into the home to assess speech and movement. They would provide supports in the home. Subsequently, if recommended, he would go to [“Program”] for intensive programming, occupational and physiotherapy as needed. At five, he would be discharged back to Community Care Access for in home supports. Again, if home schooled, he would have access to a personal support worker in the home. If his needs were more severe, he would be on a waiting list for intensive behaviour programming at a facility. He would receive services while on the waiting list and the parents could train to use the techniques at home. In terms of making referrals, Ms. R.M. works in consultation with her husband, the Applicants’ children’s paediatrician to see solutions through and assist in meeting the needs of the children. Each area of the province has similar funding but manages its resources differently. The Board heard no evidence on what programs were available in Simcoe County for children with FASD or autism.

47In terms of the stresses of the teen years, the Applicants have one 15 year old and one 13 year old. They have an 11 year old daughter and a ten year old son who would be the next to become “teens”. However, the ages of the children are sufficiently staggered. The Applicant mother testified that they have learned from their first experience with M., how to better handle the challenges including children who talk back and assert independence. Her evidence was that the children are permitted to voice their disagreement and talk things through but are aware of the expectation that they do so respectfully. Following the brief separation which was a result of teen conflict between M. and the Applicant father, the family put in place further coping strategies. These include individual time with the children, a break for the Applicant mother on Saturday mornings, designating the master bedroom as “child free” during the day and learning not to react when “teen” behaviours surface.

48The Board is satisfied that the Applicants have learned from their first experience with a teen and that they will continue to seek out supports in future in this regard, if needed.

49The Applicant mother’s evidence, supported by the evidence of the Waterloo social workers, was that the family operated with a routine and rules. The evidence did not indicate a household in chaos. There was no evidence of disorder in the morning or evening routine. The learning time was structured with some flexibility. The older children helped the younger children at school sometimes but there was no evidence of reliance on them to do so. This can assist the older children in learning by teaching. The children had set chores and expectations throughout the day. Play time followed the completion of school work. Children attended play dates to facilitate trips to appointments or activities for other children. Both parents were home during the day every two weeks for two weeks and the Applicant father was available to assist from 9:30 am subject to an afternoon nap for an hour during that time. The Applicants managed their routine including home schooling with N. as a baby.

50The grandmother has not attended at the home for home schooling regularly and is not privy to how the day is managed. What she has seen at family gatherings is that the Applicants’ children are better behaved than her other grandchildren. The positive behaviour of the children in public was corroborated by Ms. S.R.. Further, according to Ms. A.B., the children are “great kids” and one would never know that they come from difficult backgrounds nor had special needs when observing them today. They are very well behaved.

51The Applicants have an extensive support system that includes the Applicant mother’s parents who live five blocks away. They are available to talk and offer emotional support and to baby-sit if needed. The Applicants other supports include their home-schooling association and their church. On a personal support level, the Applicant mother counts her friend with adopted children as one of her greatest supports. The Applicants’ supports include Ms. S.R., Ms. R.M. and Dr. M.. According to the Applicants’ sister in law Ms. S.R., the Applicants have a big family who are nearby and will assist on short notice. The extensive support system has been referenced in the Waterloo reports.

52The evidence indicates that the Applicants have been extremely resourceful in marshalling resources for their children and seeking out the appropriate professional and community supports. The Applicant mother also conducts research on issues faced by the children, including the importance of the sibling bond and FASD. The family is one in which education, knowledge and individual potential are valued. While the family faces and has faced stressors on a day to day basis, the Applicants have demonstrated an exceptional ability to manage and overcome these stressors.

53The sleeping arrangements are important in terms of D.B.’s needs. He sleeps through the night and is used to sleeping on his own. When he slept with the other baby in foster care, he had trouble sleeping. The Board is not concerned about the time that D.B. will sleep in a crib in the Applicants’ room as there will be no other child or baby to distract D.B.. However, in the near future, the Applicants should put themselves in a position to have D.B. sleep in his own room or possibly on a trial basis with one older, quiet child, possibly A. provided he sleeps well. The Applicants made a commitment on the record at this hearing that should the Society stipulate as a requirement of the adoption that they provide an extra bedroom, they would renovate to do so. Further, the Applicant mother testified that they have the line of credit already available to do so. The Applicant father’s brother is a contractor. The school room could be converted and the “L” shaped room in the garage could also be converted to allow for an extra bedroom and a school room. The Board does not find the absence of a shower as an impediment to D.B.’s placement. The family have been functioning by taking baths and seem to have an orderly routine. In any case, it is in D.B.’s best interests that once he leaves the room with the adults, he have access to a quiet place to sleep away from the distractions of a younger child, preferably alone or with one older, quiet child on a trial basis. The Applicants have not taken any steps to renovate because they did not know whether or not they would be approved to adopt D.B.. This is understandable. However, once the plan is set in motion, they have undertaken to do what is necessary. Based on their track record of doing what is necessary to meet their children’s needs to date, the Board is satisfied that they will do so.

54The Society did not question the brief separation as a strategy for dealing with teen conflict or how the Applicants managed to sort things out, including opening up greater communication and developing strategies. The Applicant father continued to see the children and be present at times in the home including with the Applicant mother. The Society’s concern is that they did not let Waterloo know pursuant to the foster parent agreement. The Applicants disagree with the interpretation of the Agreement. Based on the evidence, the Applicants demonstrated an ability to problem solve, including in accessing supports with respect to a difficult situation that occurred two years ago. The Board finds that even if they should have notified Waterloo, they have strengthened their coping skills as a result of the overall experience. This one error in judgment should not preclude a family with such strong parenting skills (that are not in question) from adopting another child.

55The Society also raised some concerns about finances but offered no evidence to contradict that of the Applicant mother that the family had a line of credit and used mortgage financing to pay for a twelve seater van. The Applicant father’s income is $98,000.00 per year. Waterloo raised no concerns in the homestudies about income. Nor were finances an identified concern in the letter of refusal.

56In her August […], 2009 letter, the Waterloo Adoption Supervisor indicated to the Society that:

Reports on file.. felt that the K.M.’s were strong parents, supportive of the children, possessed the skills necessary for parenting children with special needs and would not hesitate to recommend them again

57The Society Adoption Supervisor did not suggest that there was a set number of children that a family with special needs children can cope with. Nor did she disagree with the article submitted by the Applicant that indicated that based on a particular study, special needs children can adjust as well or better in a large family than in a smaller family. The evidence from all of the workers for both Societies was that a case by case assessment of a family’s capacity to take on special needs children needed to be done.

58In terms of this case, the Society relied on the SAFE homestudy, discounted the Addendum and did not follow up with Waterloo about further assessing the home. Although they purport to defer to Waterloo, the evidence from Waterloo was clear: the letter from the Supervisor was very supportive of the Applicants and indicates that the Addendum “speaks to the need for re-assessment should placement of D.B. be considered”. The Addendum does on its face represent a step back from the SAFE homestudy. Further, the worker who wrote the Addendum, when asked at the hearing, indicated that she changed her position to support assessment on a case by case basis. The worker who knew the family the best and who had communicated with the Society Adoption Supervisor did not support the cap on the number of children and told the Society this. Given the importance of the sibling bond, discussed below, the issue of whether or not the family could meet D.B.’s needs warranted full clarification and assessment.

59The Board has now heard a considerable amount of evidence about the Applicants and their ability to parent D.B. in his and their circumstances. The Board heard the most up to date information about D.B., the Applicants and their family: information that had the Society investigated further, they would have had access to. The Board is satisfied that the Applicants will have the time to devote to D.B.’s special needs including emotional physical and developmental needs, should they arise and that they will ensure that his needs are met by accessing appropriate resources that are available in the community. The Applicants have managed a baby, N. who is now 5, with special needs while meeting the needs of four other special needs children and of M., the older child. The family has a routine that includes the children conducting age appropriate tasks for themselves and with each other. The Applicant mother will be at home full time with D.B. as she was with N.. She managed to home school her children in this environment in the past and can accommodate D.B. as a baby and as he grows, into this routine. For two weeks a month, the Applicant father helps with the daily routine. When N. was a baby who couldn’t sleep, the Applicant father would carry him around the house and soothe him. The Applicant father cooks dinner nightly. D.B. will have access to important community supports in [City A]. Most significantly, if indicated following an assessment, he will have access to a personal support worker in the home during school hours. If indeed he has FASD or autism, D.B. will benefit from the structure, caring and commitment of the Applicants as demonstrated in their unyielding efforts and consistent successes with and on behalf of their children.

60The Board’s finding that it is in D.B.’s best interests to be placed for adoption with the Applicants is based on considering and weighing the relevant considerations. It is based principally on the Applicants’ ability to meet D.B.’s individual needs. It is however, further enhanced by the benefits that the placement will offer him in terms of his access to a meaningful, consistent sibling relationship with his half birth sibling, A.. This too goes to his emotional well-being. The Board heard evidence that the sibling bond is important to children because it helps them positively develop their sense of identity and a sense of connectedness to that sibling and the birth family. The Society’s position was that the sibling bond can, as in this instance, be nurtured through openness arrangements with a different adoptive family. Their position was that in any case, where the children have not lived together, no bond exists.

61D.B. is a baby and is not aware that he has a sibling. He was never placed with A.. While it is true the child is not aware, this does not mean that there is no relationship by blood or sibling bond to consider. The situation now is an artificial one created by the involvement of societies. The societies were not aware of siblings on original placement of D.B.. From the standpoint of D.B.’s best interest, the question is whether or not it is in his best interests to have the opportunity to develop a bond with A. and to what extent. The Applicants other children have been placed with their siblings. In at least one instance, the circumstances were similar. The children have now demonstrated bonds that are uniquely tied to their identity as being related by blood with respect to such things as looking alike or sharing another common trait. This is not to minimize the bond between adopted siblings but to acknowledge that a bond by blood with a link to a birth parent is significant to the child. Both societies agreed that sibling bonds are important. The Waterloo witnesses and the Society witness that addressed the issue spoke to the importance of the sibling bond as the longest term bond a child will have. Where a child is not aware of a birth sibling until later in life, he or she can experience a loss upon learning of the sibling. While sibling access may be one means of helping to foster a sibling bond, it does not provide the same level of relationship building as does residing with a sibling. The first option for both societies was to look to place the child with a birth sibling. In this case, the Society delayed in contacting Waterloo to advise them of D.B.’s existence. They did, as a priority, explore placement with A. but for the reasons outlined above declined that option and looked to potential access as a means of allowing for the bond. The Society concedes that given the statutory scheme, they cannot guarantee or force an adoptive family to pursue such access. However, they would look for a family that was open to access between D.B. and A..

62The Board finds that it is in D.B.’s best interests to have access to an opportunity to develop a sibling bond to the fullest extent. This means placement with his sibling. Access visits with his sibling are not as meaningful in terms of identity development and attachment. This is consistent with the approach of both societies that look first to placement together as an option. Where individual need cannot be met or placement together isn’t possible, the sibling bond is then compromised in favour of other more pressing needs being met. In this case, there is no need to compromise the sibling bond or reduce its standing as a priority. D.B.’s individual needs can be fully met by the Applicants. As such D.B. should have the full benefit of placement in the same house with his brother, A..

CONCLUSION

63The Board has made substantive findings about the best interests of D.B. based on up to date information. The Board has found that placement with the Applicants for adoption would be in D.B.’s best interests. This means that the adoption application of the Applicants must proceed to the next stage in the adoption process.

64The Board understands that there has been no homestudy specific to D.B.. However given that there is a homestudy of the Applicants as required by the Act and given the evidence before the Board that the Society was privy to and which forms the basis of the Board’s findings on the child’s best interests, the Board suggests that the next step in the process should be placement. Otherwise, should a further homestudy be done and a second refusal made, the Applicants would have the option of a further review by the Board at the refusal stage. This could cause further delay which would not be in the best interests of the child.

65In light of the above, the Board rescinds the decision of the Society to refuse the application of S.M. and K.M. to adopt D.B.

Mary Wong

Presiding Member

John Gates

Board Member

Sheena Scott

Board Member