T.B & N.B. v. Hastings Children’s Aid Society, 2011 CFSRB 23

CHILD AND FAMILY SERVICES REVIEW BOARD

T.B & N.B. v. Hastings Children’s Aid Society

REASONS FOR DECISION

Date: July 18, 2011

Citation: 2011 CFSRB 23

Indexed as: T.B & N.B. v. Hastings Children’s Aid Society (CFSA s.144)

INTRODUCTION

1[The Child] is a 19 old month child. The Applicants are T.B. and N.B. from [City A]. T.B. is the sister of [the Child’s] paternal grandmother. They want to adopt their great nephew. [The Child] has never lived with the Applicants.

2[The Child] and his sister M. were apprehended by the Hastings Children’s Aid Society (“the Society”) in January 2009 following the sudden infant death of their brother K. on January […], 2009, at the age of 12 weeks. The circumstances of the death were in question.

3Since coming into the Society’s care, [the Child], born with sleep apnea, has resided in the same foster home, while M. was placed in the care of her maternal grandparents. On May […], 2010, the foster family sent a letter of intent to adopt [the Child]. The paternal family expressed interest to adopt [the Child] prior to and after his birth. On November […], 2010, the Applicants sent a signed letter of intent to adopt their great nephew. The Applicants state that, being part of [the Child’s] biological family, they are the only family that should be considered for the adoption of [the Child]. On June […], 2011, the Society refused the Applicants’ application to adopt [the Child]. The Applicants applied to the Child and Family Services Review Board (“Board”) on June 9, 2011 for a review of the Society’s decision to refuse their application to adopt their grand nephew

4The application is made under section 144 of the Child and Family Services Act (“Act”). The Board has to decide what action is in the best interests of [the Child] and either confirm or rescind the Society’s refusal of the adoption application. The main issue before the Board is which family can best meet [the Child’s] needs.

5The Board has determined that the child’s best interest is to confirm the decision of the Society. Following are the reasons leading to that decision.

BACKGROUND

6[The Child] was born on November […], 2009, with sleep apnea. He was discharged from the hospital with an apnea monitor and placed in a foster home. The foster home had previous experience with children suffering from sleep apnea. M., his sister, was placed with the maternal grandparents. E.A., the Children’s Services Worker, described [the Child] as a medically fragile child who has episodes of apnea alarms for his low and high heart rate.

7The Society was working towards the reunification of M. and [the Child] with their parents until February 2010, when they were involved in a domestic conflict. Ultimately, the father was charged with sexual assault and criminal harassment toward [the Child’s] mother. He pleaded guilty to the offences. The family reunification plan was therefore modified.

8In a Permanency Planning and Review Committee meeting held on May […], 2010, it is reported that [the Child] has regular visits with his mother and his sister M.. The birth mother states that she is not prepared to parent [the Child] and believes adoption is in his best interest. The father was noted in default of court and did not submit an adoption plan for his son. Since June 2010, the father had no access visits, but had the option to have access visits at that time. On August […], 2010, [the Child] was made a Crown Ward without access for the purpose of adoption and the maternal grandparents were named legal guardian for M..

9Under the legislation, there is an obligation for the Society to develop a permanency plan before the end of a 12-month period. Three paternal families living in [City A] had been in contact with the Society prior to and after [the Child’s] birth, but had not, as of August 2010, submitted a plan for his adoption. Following a planning meeting held on September […], 2010, the families were encouraged to coordinate and work together to submit one plan. They were also advised to discuss the matter with the birth father, a legal party to the decision regarding the placement of [the Child]. The Society has a mandate of confidentiality and was not in a position to engage other family members without the consent of the biological parents. It was expected that the birth father would guide his family and come forward in identifying one family to care for his son. The paternal grandfather, W.E., and his wife B. submitted a letter of intent on October […], 2010. On February […], 2011, Mr. W.E. withdrew his plan to adopt [the Child] in support of the adoption plan put forward by the Applicants. On October […], 2010, A.S., the paternal grandmother, also wrote a letter supporting the Applicants’ plan of adoption. Even though the paternal family had expressed their willingness to care for or adopt [the Child], no formal letter of intent was sent to the Society until [the Child] was 10 months old.

10The Applicants expressed some frustration towards the Society and particularly Ms. L.B., the Family Worker. The Applicants felt that Ms. L.B. did not provide them with the necessary information and did not guide them properly in submitting their Application. The Applicants also believed that the foster family had been selected to adopt [the Child] in September 2010. [The Child’s] father did not sign the form that would have allowed the Society to provide information required by the Applicants. The Board is satisfied that, based on the evidence, the Society had not received all the required information to proceed with a decision regarding [the Child’s] adoption as of September 2010.

11On November[…], 2010, after an exchange of e-mails and phone calls, the Applicants submitted a signed letter of intent to adopt [the Child].

12At the Society’s request, the Children’s Aid Society of [City A] completed the kinship home assessment on May […], 2011. The Applicants are described as a positive and strong family: the couple have known each other for two years and were married in September 2010. They have an understanding of sleep apnea, as some members of the family suffer from it. They have made steps to obtain medical and community services for [the Child]. Following back injuries, Ms. T.B., the Applicant, had to retire from the military services. Ms. T.B. has received medical training and the couple has updated their training in CPR. They participated in a three-day course pertaining to adoption. They bought a house and have a room ready for [the Child]. Mr. N.B. is in the process of stopping smoking.

13On May 2010, the foster family submitted a letter of intent, the only long term plan submitted at that time. The Children’s Services Worker testified that she was very surprised at this formal letter of intent because the foster parents had never before submitted such a letter for any of the other children in their care. On December […], 2010, their home study was completed.

14Mediation was proposed and accepted by both families who had submitted their intention to adopt [the Child]. In January 2010, the first mediator realized there may be a perceived conflict of interest, and withdrew his services. The goal was that the families would determine which one would take care of [the Child] considering his best interests. The mediation went ahead on March […] and […], 2011. Even though an agreement was not reached, both families got to know each other and made the commitment to have ongoing contact.

15On June […], 2011, after much consideration, based mainly on the adoption team’s established selection criteria, the decision was made that the foster family would be selected to adopt [the Child].

ANALYSIS

16The Board has the power to review an adoption application refusal under section 144 (3) of the Act. The right to a review applies if a Society decides to refuse an application to adopt a particular child by a person [s. 144(1)]. The Board must then, in accordance with its determination of which action is in the best interests of the child, confirm or rescind the decision under review [s. 144 (11)].

17In determining what action was in the child’s best interests, under section 144 of the Act, the Board takes into account the over-arching considerations set out in section 1 of the Act, as follows:

1. (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,

18The Board is required to and did consider the relevant factors set out in section 136 (2) of the Act, namely:

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

4. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

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

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

7. The child’s views and wishes, if they can be reasonably ascertained.

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

9. Any other relevant circumstance.

19The main issue for the Board in this case is whose family can best meet [the Child’s] physical, mental and emotional needs. The Board will deal within the context of the best interests test mandated by section 136 of the Act. The Board will address No 1 and No 2 together and No 4, 5, 6 and 7 separately.

The child’s physical, mental and emotional needs and level of development.

20E.A., the children’s services worker, testified that [the Child] has had over 100 episodes of low/high heart rate. In some instances, he had to be vigorously stimulated in order to breathe. It is absolutely necessary to ensure that [the Child] is connected to his monitor while sleeping, in his car seat or in his stroller. Children do not usually need a monitor once they reach one year of age. Because the episodes continue, the pediatrician referred [the Child] to the care of a pediatric respiratologist. Reports are made every second week and the child is closely monitored. [The Child] receives the services he needs and the medical specialists to treat his condition are in place. Because of the special care that she provides to [the Child] due to his apnea, the foster mother has developed a very close relationship with him. It is expected that if [the Child] is removed from the foster family, it would be a very stressful event that could lead to anxiety and that the severity of his apnea episodes could be affected.

21The foster family has provided excellent care that should not be disrupted. The Board believes that [the Child] should not be subjected to a move which could cause a trauma and some emotional difficulties.

22[The Child] has been residing in the same foster home since birth. The children’s services worker testified that when [the Child] had access visits with his birth mother, the visits were stressful and [the Child] was insecure. The foster mother was invited to participate and she made certain that [the Child] and his mother had quality time together and that the visits were not as stressful for both. The foster mother also facilitated the birth mother’s farewell meeting with [the Child].

23[The Child’s] behaviour suggests that [the Child] was fragile at that time and no one can predict his reaction and the impact on his emotional well-being, should he be removed from the foster family.

24At present, there are no concerns about [the Child’s] development and he doesn’t need any particular services. His level of development has not suffered from the apnea and he has met all his developmental milestones. The Adoption Worker and the Children’s Services Worker described [the Child] as a “happy, vibrant, bubbly, joyful, interactive, cuddly baby who enjoys company”. [The Child] is adding to his vocabulary and demonstrates a desire and capacity to learn.

25The foster family has proved their ability to support [the Child] and has provided a stable and nurturing relationship. They have ensured his physical, mental and emotional well-being and have addressed his developmental needs.

The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family

26Ms. R.R., the Regional Adoption Manager, testified that attachment is one of the three main criteria considered when a child is to be adopted. When a child has developed a secure attachment to a caregiver, the likelihood is that he learns to trust and could transition to a new family.

27[The Child] has developed a positive and secure attachment to his foster family, the only family he has known since birth. He is described as well adjusted and an integral part of the family. The foster family has two children living at home who consider [the Child] as their little brother.

28[The Child] has a continuous relationship with his sister M. and his maternal grandparents. That relationship was interrupted briefly when [the Child] was made a Crown Ward without access. The Children’s Services Worker interpreted that ‘without access’ meant that it was the foster parents’ decision. Since it was clarified, [the Child] and M. are seeing each other on a regular basis at a local park, at their maternal grandparents’ house, and in the foster home, as both families live in the same area of [City B].

29The maternal grandparents are not open to a relationship with the paternal side of [the Child’s] and M.’s family. They did not give the Christmas gift that the Applicants sent to M. and did not return their phone calls when the Applicants came for the mediation sessions in March. Even though the Applicants are open to maintain contact with the maternal family and the foster family, the distance between the Applicants’ residence from [the Child] and M. would make the visits more difficult and infrequent.

30The Applicants’ counsel suggested that the maternal grandparents’ reluctance to maintain contact with the paternal side of the family created a hostile environment for [the Child] and M.. Both the maternal grandparents and the foster parents have made the commitment to maintain the sibling relationship. M.’s grandparents, who are her legal guardians, are also attached to [the Child], even though they could not make the commitment to care for him on a long term basis. M. knows [the Child] is her little brother and when she speaks about him she calls him “my baby [the Child]”. The maternal grandparents consider the foster family as part of their extended families. The foster family has knowledge of the lifestyle of the birth parents and accepts the child’s situation. The evidence showed that M. is being raised in a healthy way.

31The Board believes that there is a higher probability that the relationship between [the Child] and his maternal grandparents will be maintained if he stays in the foster home. [The Child] will thus get to know his roots and heritage and will continue to be close to his sister.

The child’s relationships by blood or through adoption

32The Applicants believe that [the Child] would benefit from residing with blood relatives. Evidence on this issue was provided by the testimony of the Adoption Manager and by the material submitted by the Applicants’ counsel. The Adoption Manager explained that the practice has changed over the years. New legislation was developed in 1987 as the result of adoptees lobbying for more rights and in particular, access to information to allow them possible contact with their birth parents. Contact between adoptees and births parents often does not result in long term relationships. The Adoption Manager referred to J.M., a specialist in sibling relationships, who asserts that relationships between siblings are important to maintain, easier, and are usually lifelong relationships. They are more equal than intergenerational relationships. Siblings form an identity through each other; develop skills and the same interests.

33In recent years, an increasing number of children have been placed with family members. A research study conducted by Colorado State University provided by the Applicants’ counsel questions whether or not children fare best in foster or kinship care homes. This has been subject to increasing controversy across the world as some countries have started to mandate one option over the other and when possible, through legislation. One school of thought is that it’s better to remove children from a family where they are maltreated by parents, citing the argument that the apple never falls far from the tree. The opposing argument is that maintaining family ties provides a more stable environment for children and offers them a network of support from relatives and their own familial culture. One of the authors also cited an overall lack of research comparing kinship care and foster care.

34Kinship is one of the factors to be considered in determining what is in the best interest of the child. The foster family is in a better position to facilitate an ongoing relationship with the birth mother, who currently lives in [City B] near the foster family, because they can decide on the parameters of contact. Arrangements could also be made for visits with the birth father, even though he has been inconsistent in the past in his visits with [the Child]. The foster family lives in close proximity to M. and to the maternal grandparents. They have made the commitment to maintain those contacts. The extended paternal family lives in [Province] and the foster parents have committed to maintain contact with them via email, Skype, phone calls and visits. Moving [the Child] to the Applicants' home in [Province] would be ensuring one blood tie (whom the child has met once), but leaving the child with the foster family ensures ongoing access with other blood relatives, including both maternal grandparents and sister, with whom the child has already developed a close relationship. The foster family is in a better position to ensure ongoing contact between [the Child] and kin on both sides of his family.

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

35The parties did not present evidence to address how [the Child] would be impacted if the attachment between him, the foster family, his maternal grandparents and his sister is severed. However, the Board believes that in light of [the Child’s] medical condition, his young age, the fact that the foster family is the only family he has known since birth, the issues of attachment, loss and re-attachment are critical to the best interest determination.

36The foster family has provided continuous care for [the Child] since he was a few days old. The evidence supports the view that the child has a strong attachment to the foster family and has ties to his sister and maternal grandparents as the result of regular ongoing contact with them. Removing [the Child] from the foster family will disrupt the ties that have been established to his foster parents, foster siblings, biological sister and maternal grandparents. The Board believes that disrupting these ties cannot fail to have a negative effect upon [the Child] and result in causing him some degree of emotional and mental trauma and possible physical harm given his medical condition.

37The Board believes that it is in the best interest of [the Child] that there is no disruption of care.

The child’s views and wishes, if they can be reasonably ascertained

38[The Child] is too young to express his wishes and he was not represented by counsel. However, the foster family is the only family known to him and he has developed a secure attachment to the whole foster family, their extended family as well, and with his sister and his maternal grandparents.

Other Considerations

39Concerns were raised by the Applicants’ counsel that it could be difficult for the foster family to meet [the Child’s] financial needs. The evidence demonstrated that the foster family has raised their own four children on the foster father’s salary. Two of the children still live at home. The foster family has emphasized the importance of family ties rather than financial ease. They know that once the adoption is completed they will not receive the per diem allocated for [the Child]. They could however, benefit from child tax credits, Family Allowances and apply for subsidies. The family has managed to go camping with all the children.

40The Board is confident that they have met the needs of their children in the past and will continue to do so.

41The Board has reviewed the Applicants’ Book of Authorities and offers the following comments regarding three Judgments rendered by the Ontario Court of Justice: Tab 6: S. S. (RE) (2010) O.J.No2814 and Tab.7: J.V.(Re) (2011) O.J. No.340 are judgments referring to birth fathers who were not informed of the mother’s pregnancy. These cases do not apply to this current Application because the birth father was fully aware of the pregnancies and births of M. and [the Child]. The case at tab 8: Children’s Aid Society of the District of Sudbury and Manitoulin v. J.H. (2003).J. No.6192, the grandmother had displayed a long-term commitment to caring for her grandchild, provided care and always expressed a willingness to parent her aboriginal grandson. The Child was ordered placed in her care.

42The Board believes that the cases referred to in the Book of Authorities do not apply to this case, because in the present case, unlike the cited cases, the Applicants are related by blood but have no other established relationship with the child.

CONCLUSION

43The Board finds that it is in [the Child’s] best interest to remain with the foster parents. It is also the least disruptive course of action and the only viable option that respects the child’s need for continuity of care and stable relationships with his sister and maternal grandparents, with whom he already has a significant relationship.

44The Board finds that the foster family can meet the child’s needs and provide him with a long-term home. The information obtained indicates that the foster family has provided an excellent home and care and that the child is doing well in their care.

DECISION

45The Board confirms the decision of the Society and orders that A[the Child] born on November […], 2010 be adopted by the foster family, as it is in his best interests.

Gail Gonda

Presiding Member

Alina Lazor

Board Member

Nycole Roy

Board Member