CHILD AND FAMILY SERVICES REVIEW BOARD
H.D. & C.D. v. Children’s Aid Society of Simcoe County
REASONS FOR DECISION ON MERITS
Date: December 2, 2009
Citation: 2009 CFSRB 76
Indexed as: H.D. & C.D. v. CAS of Simcoe County (CFSA s.144)
1The Applicants, [ ], applied to the Child and Family Services Review Board (the “Board”) for review of a decision made by the Children’s Aid Society of Simcoe County (the “Society”) to refuse to consider their application to adopt [the child], born August […], 2004. A letter from the Society dated the […] of October 2009 was sent to the Applicants advising them of this decision as required by subsection (2) of section 144 of the Child and Family Services Act R.S.O. 1990, c. C11 (the “Act”). This application was heard on November 19 and 20, 2009.
2It is the position of the Society that it is in [the child]’s best interests to be placed for adoption with one of her brothers, K., born October […], 2007. As the Applicants were not prepared to adopt both children without financial assistance for K., the Society decided not to consider their application.
3The Applicants believe that it is in [the child]’s best interests to be placed with them, as they have been her foster parents for the past 19 months and she has developed a close attachment to them. The Applicants ask that the decision of the Society to refuse to consider their application be rescinded.
4The Board finds that the best interest of the child is to remain with the [Applicants] and as a result, rescinds the Society’s decision. The Board’s reasons follow.
BACKGROUND
5The Applicants have been foster parents with [Treatment foster home agency “Agency”] for approximately three years. On April […], 2008, two foster children were placed with the Applicants: [the child] (aged 3 at the time) and her half-sister M. (born February […], 1997; aged 10 at the time). [The child] has three full siblings: twins K1. and L. (born December […], 2005), and K. (born October […], 2007). There is a sixth half-sibling, T. (born 1999), also in the care of the Society, but very little information was available about him.
6On April […], 2008, the five [above noted] children were apprehended from the care of their parents, [ ], and placed in three different foster homes. [The child] and M. were placed with the Applicants, twins K1. and L. with a second foster family, and K. with a third family.
7On July […], 2009, M. was moved from the Applicants’ home and placed in the care of her father, [ ], by court order. The four remaining siblings became Crown wards with no access for purposes of adoption on September […], 2009. These five children have maintained contact through sibling visits once per week for 2.5 hours.
8There were two Family Group Decision Making (FGDM) conferences, one on January […], 2009 and one on April […], 2009. At both conferences, the children’s family expressed the wish that [the child] and K. would be adopted together by the [Applicants]. The birth mother was present at both meetings. The [Applicants] have always welcomed the idea of adopting [the child] who was residing with them. They have thought long and hard about the possibility of adopting K..
9Since coming into the care of the [Applicants], [the child] has been fitted with hearing aids in both ears, been prescribed glasses, been diagnosed with epilepsy and put on medication to prevent seizures, undergone speech therapy and undergone dental surgery for severe tooth decay. [The child] continues to need speech therapy and very recently was prescribed stronger glasses.
10Although he currently exhibits no special needs, K. is only two. He was exposed to crack/cocaine, marijuana and cigarettes prenatally. Other siblings exhibit special needs. Both K1. and L. had dental surgery to correct cavities and decaying teeth, and wear glasses. K1. has significant needs including being diagnosed as “severely Autistic” and asthmatic. She sees numerous professionals including a speech therapist, occupational therapist, physiotherapist and Early Intervention. [The child]’s needs have been described above. Thus far the Society has covered all costs associated with [the child]’s special needs, but it will no longer do so once she is adopted. The Applicants are concerned that they may be unable to care both for [the child]’s special needs, which are becoming more apparent as she grows, and any special needs that may arise for K.. As a result, the [Applicants] have not expressed as unwavering support for adoption of K., as for [the child]. They discussed their decision at length with their contacts at [the Agency].
11On July […], 2009, A.T., Executive Director of [the Agency], sent a letter on behalf of the Applicants to J.H. who was the Society Adoption Worker on this file. In it, Ms. A.T. stated that the [Applicants]:
…feel that, at this time, planning for both children under an adoption umbrella would be too stressful. They understand the CAS’s position in wanting the children together; however, they would like the opportunity to put a plan in place for [the child], who has made significant gains in their home and refers to this couple as Mom and Dad….
The [Applicants] are also concerned that M. will require ongoing support as her future continues to be uncertain. Again, I would like to suggest that this family has taken great pains in thinking this process through and is committed to doing what is best for all involved.
12Ms. J.H. testified that she received this letter just prior to going to the Applicants’ home for a meeting in which she had planned to begin the adoption homestudy. In an e-mail she sent prior to meeting with the [Applicants], addressed to M.V., Child Welfare Worker and copied to her supervisor S.D., she indicates she began to think perhaps the homestudy was not a good idea. Ms. J.H.’s e-mail ends with the thought “Maybe I should be calling the [Applicants] to explain the nature of our meeting would not be to proceed with homestudy assessment, given the Society’s philosophy of keeping siblings together, unless there are clinical reasons not to.”
13Ms. S.D. raised several issues in response, also on July […], 2008. She wanted clarification as to whether both children could be adopted by the Applicants if a subsidy were available, and suggested that further discussions should take place with the Applicants on this point.
14At the meeting with the [Applicants] later that day, Ms. J.H. informed the [Applicants] the children would not be available for adoption separately. The Applicants, committed to [the child], decided to continue to mull over both children and told Ms. J.H. they would “get back to her” with a firm answer on adopting both children.
15The Applicants’ conclusions were put in writing in a letter to the Society dated August […], 2009 in which they proposed to adopt both [the child] and K., on condition that financial support would be available for K.. By this time, however, the Society had come to the conclusion the Applicants were feeling “overwhelmed” and pressured into agreeing to adopt K. and refused to consider them as adoptive parents for either child. The Society did not respond to the proposal of financial support.
16The Applicants next met with Ms. J.H. on September […], 2009. They had understood the meeting was to discuss the subsidy request they had made in their August 20 letter. However, Ms. J.H.’s purpose for calling the meeting was to inform them of the Society’s decision that their application would not be considered. The meeting ended without Ms. J.H. being able to go through her list of “positives and negatives”.
17The rejection letter sent to the Applicants on October […], 2009 states simply that it would be “in the best interests of [the child] and K. to be placed together on adoption with another adoptive family…. In summary, the proposal of the placement of these two children for adoption with you was determined to be financially and emotionally overwhelming to your family. In addition, the Agency determined that another adoptive family’s profile was a better fit to these children’s needs.”
ANALYSIS
18The Board must make a decision in this matter having regard to the best interests of the child as provided for in subsection (11) of section 144 as follows:
144(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.
19In considering the best interests of a child, the Board must take into consideration the circumstances detailed in section 136(2) as follows:
The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child’s physical, mental and emotional level of development.
The child’s cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
The child’s relationships by blood or through an adoption order.
The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
The child’s views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
Any other relevant circumstance.
20The considerations which are not relevant to this panel’s decision are 3, 4, and 8. Culture and religion were not raised at the hearing, and as the child is 5 years of age, she is too young for the panel to put any significant weight on her views and wishes. The essential question to be decided in this case is whether living with a sibling is more important for [the child]’s well-being than continuity of the positive relationship she has built with her foster parents.
Physical, Mental and Emotional Needs
21There is no dispute that [the child]’s physical, mental and emotional needs are satisfied at the Applicants’ home. The Society’s position throughout has been that [the child] received exemplary care from the [Applicants] and has flourished with them. The Applicants have met [the child]’s extensive physical needs, including hearing aids, glasses, speech therapy and diagnosis of and treatment for epileptic seizures.
22The Applicants have taken great interest in [the child]’s schooling, meeting numerous times with the teacher and principal to ensure she succeeds. [The child] is currently doing well in Kindergarten.
23With respect to [the child]’s emotional needs, the panel notes this is a vulnerable child. She is physically vulnerable, for reasons described above, and she is emotionally vulnerable. [The child] suffered from poor parenting early in life. When apprehended from her parents, she recalls going “out to find her daddy” and ended up in foster care. (In fact, [the child] was found wandering the streets of [ ], naked at night, at the age of 3. Her mother was found in the home passed out from drug use and difficult to rouse. Her father was absent.) The panel heard evidence that when [the child] was first taken into care, M. acted as her mother. [The child] was withdrawn, clung to furniture and cried incessantly.
24By all accounts, she is a different child now as her emotional needs appear to be well met. She laughs and talks openly and freely. She calls the [Applicants] “Mom and Dad” and turns to [the Applicant mother] for comfort. There is no dispute that [the child] has bonded with her foster parents and has flourished with them.
25It is also clear [the child] has a very strong bond with M.. M. was “parentified” while in the care of her step-father and had essentially been looking after her four younger half-siblings until apprehension by the Society. [The child] lived with M. at the [Applicants]. The two attend the same school. The panel heard evidence M. continued to “mother” [the child] at the foster home, and had difficulty trusting the [Applicants] to look after [the child] when she wasn’t present. The evidence was that it was a severe blow to [the child] when M. left to live with her father on July […], 2009. [The child] regressed. She began to talk baby talk, slept with her sister’s pillow, and became very clingy with her foster mother who she now has difficulty letting out of her sight. M. attends the same school where [the child] attends Senior Kindergarten three days a week. The Applicants testified there was an issue with [the child] wanting to see her sister during recess. As the junior and senior students spend recess on different sides of the school, [the child] crossed four lanes of traffic to find M. at a convenience store. After several discussions with the school, it was arranged that M. would spend some of her recess time on the “junior side” of the schoolyard, to spend some time with [the child] and avoid the risk of her seeking out her sister on the highway side of the school.
26[The child] may encounter further developmental challenges as she grows, given her mother’s history of drug abuse. The panel finds that the Applicants’ concern that K. may also present with special needs as he grows is a reasonable one. Raising only one child with special needs would ensure the Applicants have the energy, time and emotional and financial resources required to help [the child] achieve her best.
The child’s physical, mental and emotional level of development
27The child is 5 years old and is at a level of development where she appears to have securely attached to her foster parents, although there was no evidence presented regarding the process of attachment and when the window of attachment for a young child may close. Similarly, the panel heard no evidence on how a child’s other developmental challenges may impact their ability to bond or re-bond. The evidence from both Society witnesses and Ms. W. from [the Agency] was that a secure attachment is essential to a young child, in order to be able to function normally in society and bond with one’s own children later in life.
28At this stage in her life, [the child]’s bond to her foster family is much stronger than her bond to her brother K.. For his part, K. has never known life with [the child] and will not miss her at this critical stage in his life. However, sibling bonds last throughout a lifetime and placement together now would mean that [the child] and K. would develop a lifelong sibling bond.
29The panel also heard evidence that the [Applicants] have a large extended family of their own. The [Applicant father’s] father lives in the lower half of the family home, which means [the child] has had, and would continue to have if adopted, considerable contact with her “grandfather”. The [Applicants] have been able, and will continue to be able, to access considerable support, both from their families and from [the Agency] Treatment Foster Homes, if they are able to continue to foster.
Positive relationship with a parent and a secure place as a member of a family/ Continuity of care.
30[The child] has experienced much loss during her young life. She experienced loss with respect to her birth mother and birth father. She was separated from the twins and K. when she was apprehended. M., a sibling who also acted as her surrogate mother, was taken from her when she was placed in the care of her father.
31[The child] has spent 19 uninterrupted months in the care of the Applicants, who she calls “Mom” and “Dad”. M., in speaking with [the child], refers to the Applicants as [the child]’s “Mom and Dad”.
32[The child] has exhibited symptoms of loss and grief, both when removed from her parents’ home and when [M.] left. Should she be moved to another home for adoption, she would grieve the loss of her foster parents, as well as the [Applicants]’ extended family she has come to know including her “foster grandfather” living in the same home.
33Society staff is of the view that if [the child] was able to attach to the [Applicants], she will be able to do it again with another adoptive family, and this time would be with her brother K.. The evidence appears to show that the Society did not consider whether it would be in the best interests of [the child] to be adopted by the Applicants without her brother. While the rejection letter notes another family was “a better fit” to meet these children’s needs, it appears the only way they were a better fit was by their willingness to adopt both children without conditions. No evidence was presented with respect to the alternative adoptive family. It appears the main reason the [Applicants] were not a perfect “fit” for [the child] was their reluctance to adopt K. without financial assistance.
34For their part, the [Applicants] testified that they were unsure about adopting K. because they are acutely aware of the danger of adoption failure. They have never been unsure about adopting [the child]. The Applicants testified they were prepared to adopt K. with an assurance of Society support. The Society forced them to put forward a “bottom line” figure of financial assistance, which they had difficulty doing as no-one knows what special needs K. will have as he grows, if any. The Applicants testified that, rather than responding to the Applicants’ proposal of a per diem assistance, the Society returned with a decision that they would not be considered to adopt the children.
Relationship by blood
35The Society witnesses testified that a sibling relationship is very important as it will last the entire lifetime of a child. The Adoption Supervisor testified that certain studies have shown sibling bonds can be more important than parental bonds. No such studies were entered into evidence.
36The Society’s evidence is that its “philosophy” is to keep siblings together. Ms. J.H.’s e-mail of July […], 2009 refers to the Society’s philosophy of “keeping siblings together, unless there are clinical reasons not to.” The Society does not appear to have considered whether there are reasons not to follow the philosophy in this case. The philosophy is clearly not always followed as there was no indication of attempts to keep T. together with his siblings.
37Society witnesses testified that all the children in this family are close to one another. The Applicants, in their testimony, clarified that [the child] did not take a particular interest in K. at first because he was just a baby and could not interact. Now that he is a toddler and interacting with the group, she has more to do with him. The panel also heard that [the child] does not get along with one of the twins, and that the two must be separated often during visits.
38It is clear to the panel that [the child] has a much closer bond at this point with M. than with K.. This is an important consideration to the best interests of [the child]. The panel heard that one of the reasons the Applicants hesitated to apply for adoption of K. was that their home would then be “full”, and would make it unlikely they could continue as foster parents. The Applicants testified they have developed a close bond with M. and would like to be available to foster her again if the placement with her father is not successful. The possibility is not remote; the Applicants testified that they received a telephone call from M. in September 2009 stating she was unhappy living with her father and his partner and was contemplating suicide. The Applicants testified they immediately notified the Society and asked M.’s father if she could spend the weekend with them. [Father] agreed and M. spent the weekend with the Applicants.
39Ms. J.H. raised some concerns around the Applicants’ treatment of a transition plan that was put in place for M.’s move to her father’s home, in her decision not to proceed with an adoption homestudy. Specifically, the Society was concerned that the transition plan was “not carried through”, and Ms. M.V. made some notes that M.’s good-bye from the Applicants’ home was “odd” in that she said [the Applicant father] would not miss her.
40The panel places no weight on the alleged concerns around M.’s transition plan in its consideration of the Applicants’ application to adopt [the child]. The Applicants testified they had grown very close to M. while she was in their care, and they were given only three days’ notice that she had to move out. There was a Court order July 21 that she move on July 24; they were all reeling under the shock of it. Issues around who was to drive M. to camp, the good-bye moment between [the Applicant father] and M., and when overnight visits from M. could begin without undermining Father’s attempts to bond with his daughter, were raised and reasonably explained at the hearing. The Society, the Applicants and [the Agency] staff all recognized there were communication issues between the various actors in this file, and that a loss of trust between the various parties led to guarded communications. The fact that M. contacted the Applicants and asked to stay for the weekend when she felt suicidal is clear evidence she has a trusting relationship with them. In any event, the Society has remained clear that it has only the highest regard for what the Applicants have done as foster parents for [the child].
41In the short term, as [the child] is much closer to her sister M., it would be beneficial to her if the possibility of M.’s return to the Applicants’ home as a foster child remain open. At the same time, the panel recognizes that in the long term, it is clear a sibling growing up in the same home and sharing the same parents is a beneficial, life-long relationship.
42The [Applicants] have demonstrated a commitment to ensuring all the siblings continue to have a bond. They have faithfully delivered [the child] to her weekly sibling visits at the CAS offices. They have organized birthday parties and invited all the siblings and extended family to attend so the children can share special occasions outside the Society offices. The Applicants testified that they would continue to ensure sibling contact, should they be allowed to adopt [the child].
43The Board must consider all of the relevant “best interests” factors listed in section 136(2). Relationship by blood is clearly an important consideration, but it is only one among many.
44The Board finds that [the child] is a vulnerable child who has suffered numerous traumatic losses. If [the child] were to be separated from her foster parents, who she considers to be her parents, she would experience another traumatic loss. In our view, what she would gain long-term from living in the same family as K. pales in comparison to the impact of another loss at this important developmental stage in [the child]’s life. The Board finds that it is in [the child]’s best interests to maintain the bond she has developed with the Applicants.
CONCLUSION
45The Board has made substantive findings about the best interests of [the child] based on the information before it. The Board has found that placement with the Applicants would be in [the child]’s best interests. This means that the adoption application of the Applicants must proceed to the next stage in the adoption process.
46The Board understands that there has been no homestudy. Given the history of the Applicants as foster parents, much of the information to be gathered in a homestudy is already available to the Society which should expedite the process. Should a second refusal be made following a homestudy, the Applicants would have the option of another s.144 application and another review by the Board at the refusal stage.
47In light of the above, the Board rescinds the Society’s decision to refuse to consider the Applicants’ application to adopt [the child].
Heather Gibbs
Presiding Member
Alina Lazor
Board Member
Heather Hunter
Board Member
Dated at Toronto, Ontario this 2^nd^ day of December, 2009.