L.S. v. Children’s Aid Society of London & Middlesex, 2011 CFSRB 28

CHILD AND FAMILY SERVICES REVIEW BOARD

L.S.

v.

Children’s Aid Society of London & Middlesex

REASONS FOR DECISION

Date: August 5, 2011

Citation: 2011 CFSRB 28

Indexed as: L.S. v. Children’s Aid Society of London & Middlesex (CFSA s.144)

INTRODUCTION

1J. [the Child] is 22 months old. The Applicant, L.S., wishes to adopt [the Child] who was placed with her as a foster child from birth until May […], 2011, when he was 20 months old. On May […], 2011, the Children’s Aid Society of London & Middlesex (“the Society”) removed [the Child] from the Applicant’s home and placed him in another foster home because of child protection concerns related to the Applicant’s disciplining of her two adopted sons, C., age 8 and A., age 13. [The Child] is a Crown Ward and is available for adoption. The Society has refused the Applicant’s application to adopt him. The Applicant applied to the Child and Family Services Review Board (the “Board”) for a review of that decision and seeks a decision rescinding the Society’s refusal of her adoption application for [the Child].

2The application is made under section 144 of the Child and Family Services Act (the “Act”). The Board has to decide which action is in [the Child’s] best interest and either confirm or rescind the Society’s refusal of the adoption application. The main issue before the Board is which consideration should be given priority: whether it is in [the Child’s] best interest to be placed for adoption with the Applicant given her past excellent care of him and his attachment to her, or whether an incident on May […], 2011 has irremediably affected the Applicant’s capacity to provide a permanent stable home for [the Child].

3The Applicant’s position is that it is in [the Child’s] best interest to be adopted by her because of his excellent physical and emotional progress thus far in the context of serious medical problems at birth, his attachment to her, her love for him, as well as her two sons’ love for [the Child], and his need for continuity of care.

4The Society’s position is that the incident of May […], 2011, and the events which followed, have made it not possible for the Applicant to adopt [the Child]. On May […], 2011, the Applicant administered “corporal punishment” to her son A.. The disclosure of this incident and the Society’s ensuing investigation resulted in the removal of A., C., and [the Child] and their temporary placement into the Society’s care as children in need of protection. Following the investigation, the abuse was verified by the Society, child protection proceedings were commenced, criminal charges were laid against the Applicant, her name was placed on the Child Abuse Registry, and the Society closed her home as a foster home. The Society has advised the Applicant that it will not be proceeding with her application to adopt [the Child], nor will he be returned to her home.

5The Board heard three days of evidence. The Board determined that it is in the best interest of [the Child] to confirm the Society’s decision to refuse the Applicant’s adoption application of [the Child]. These are the reasons for that decision.

BACKGROUND

THE APPLICANT

6The Applicant, L.S., age 52, was born in [Country A], the fifth of ten children in a 13 year span. Her father died when she was eight years old. The Applicant’s schooling was interrupted at grade four in order for her to go to work. However, she began attending night school at age fifteen while working hard at farming during the day.

7The Applicant completed a five year university degree in clinical psychology in 1984 at age 26 and immigrated to Canada in 1986. From 1988 to 1989 she worked at the [ ] as a Child Protection Worker, and in 1990 graduated with a Masters degree in Educational Psychology from the University [ ]. She worked at the [Job B] in the summer of 1990 as a Child Protection Worker, and from 1991 to 1998 at [ ] Hospital in the Crisis Department.

8In 1998 and 2000, the Applicant underwent treatment for cancer from which she has recovered.

9In May 1998, A., born January […], 1998, was placed in her home as a foster child. After many challenges, including a trial for which she had high legal costs, the Applicant adopted A. in 2000.

10In October, 2003, C., born August […], 2003 came to the Applicant’s home as a foster child and was adopted by the Applicant in 2007.

11The Applicant has now fostered more than 20 children, two of whom were placed for adoption following their stay in the Applicant’s home. The Applicant has been a Foster Parent Mentor. This is a paid position provided to assist new foster parents in skill development and day to day issues of fostering.

[The Child]

12[The Child], the subject of this application, was born on September […], 2009. Exposed to drugs in utero by his biological mother, he was born at 36 weeks gestation with severe addiction withdrawal issues. He was placed on morphine at birth to address his withdrawal. As well, [the Child] was born with bilateral club feet.

13The Applicant was available to provide foster care for [the Child] and began to care for him while he was still in the hospital. From the hospital he was taken directly to the Applicant’s home.

14It was agreed by all parties that [the Child] was an extremely difficult baby to care for. He cried uncontrollably day and night, arched his back backwards, contrary to the foetal position, and had serious feeding problems. The Applicant had to hold him upright in her arms all through the night for several months.

15In his first year, [the Child] underwent two surgeries for his club feet. He wore casts on his feet and later, braces for 23 hours a day, adding to his immobility and irritability. The Applicant was faithfully conscientious in following all medical instructions for months, and in providing love and comfort to [the Child].

16[The Child], at 18 months, contrary to many expectations, was a happy and well adjusted baby, meeting all regular milestones, walking, talking and smiling. He was very attached to his foster mother, the Applicant, and his two older foster brothers who apparently doted on him.

17After [the Child] was made a Crown Ward, the Applicant decided to adopt [the Child], although previously she had been preparing him to be adopted by a new family. The Society agreed with the Applicant’s plan for adoption of [the Child], although at the time of the apprehension of the children, they had not yet initiated a homestudy.

18When [the Child] was moved from the Applicant’s home on May […], 2011 to his second foster home, he was able to make the transition without difficulty. Both the Society and the Applicant attributed this ease to the solid attachment [the Child] had made with the Applicant and thus to his inner sense of stability and his ability to reattach.

19The Board heard from the Society and other witnesses, including the Nurse/Parent-Infant Therapist from [Organization A], that the Applicant’s care of [the Child] was extraordinary.

THE INCIDENT OF MAY […], 2011

20On May […], 2011, which was [Holiday], an incident took place at the Applicant’s home in which the Applicant struck A. with her shoe approximately twenty times, in an effort to discipline him. A. suffered bruising on his shoulder and his hip.

21According to the Applicant, the immediate reason for the discipline was that at breakfast, A. called his mother and claimed that C. was threatening him with a kitchen knife. The Applicant viewed this reaction as A. trying again to bait or bully his younger brother, which he had done in the past and for which the Applicant had made numerous interventions.

22C.’s statement to the police confirmed that he was playing with the knife simulating a stabbing in the direction of A.. A.’s statement to the police was that his mother sent him to his room, came upstairs to his room with one of her shoes in her hand, closed the door and hit him around 20 times, interrupted by his mother asking him questions and yelling at him. He was against the wall and crying.

23The Applicant testified that she initially sent A. to his bedroom, then followed him upstairs, picking up a shoe on the way. She entered A.’s room, saying ‘I don’t want your brother to see this’ and proceeded to strike A. with her shoe. A. was heard crying by his brother C.. The Applicant subsequently came downstairs, A. followed, and the rest of the day proceeded normally, with the Applicant going to yoga class, and the family talking via Skype with the Applicant’s family in [Country A]. The Applicant confirmed A.’s description of the beating.

24A. disclosed the matter of the bruising to his teacher the next day. The school contacted the Society, which then contacted the Police. A. and C. were interviewed separately by Society workers and the Police. Each child independently disclosed physical discipline by the Applicant on more than one occasion. A. stated that he had been hit at age 7 at [Location], and C. stated that the Applicant had hit him with her hand on several occasions. In the previous incidents, no objects were used to discipline the children.

25The Police subsequently charged the Applicant with assault with a weapon for the incident of May […], 2011.

26On May […], 2011, at a meeting of agency staff who had been involved with the Applicant and her family, the Society made the decision to remove A., C. and [the Child] from the Applicant’s home, deeming them to be children in need of protection. On May […], 2011, after verifying the incidents of child abuse, the Society decided to place the Applicant on the Child Abuse Registry. It then determined that the Applicant could no longer act as a Society Foster Parent, and made the decision to refuse her application to adopt [the Child].

27On June […], 2011, the Society wrote to the Applicant advising that it would not be proceeding with her application to adopt [the Child], nor would he be returning to her home.

28A. and C. were at the time of the hearing, placed together in a Society foster home. A Child Protection hearing is pending at which the Society will apply for Society Wardship for both children for six months.

ANALYSIS

29The issue before the Board is to determine whether it is in [the Child’s] best interests to be placed for adoption with the Applicant in light of the recent events which have resulted in all three children being brought back into the care of the Society, or whether it is in his best interests to be placed for adoption with another family.

30In determining which action is in the child’s best interests, under section 144 of the Act, the Board took into account the overarching 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,

31The Board was required to and did consider some specific relevant factors to this case, enumerated 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:

137. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

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

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

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

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

142. Any other relevant circumstance.

THE CHILD’S PHYSICAL, MENTAL AND EMOTIONAL NEEDS AND THE APPROPRIATE CARE OR TREATMENT TO MEET THOSE NEEDS

32The Board heard from numerous witnesses, including the Society Child Support Worker, Family Resources Worker, Nurse/Parent-Infant Therapist, [Organization A], medical providers, and foster relief parents, that the care the Applicant provided to [the Child] from the time of his birth to the age 20 months, was exceptional and extraordinary.

33Counsel for the Applicant submitted that it was in [the Child’s] best interest to return to the Applicant’s care. [The Child] is loved by the Applicant and her children, has a solid attachment to them, and is thriving physically and emotionally. He is a central part of their family and should continue to be with the family he has known since birth.

34The Society submitted that the situation in the Applicant’s home, precipitated by the events of May […] and the subsequent removal of the children, has irrevocably altered the circumstances and dynamic of that home, such that [the Child’s] mental and emotional needs can not be met in the same manner as formerly. The situation facing the Applicant and her two children has changed.

35The Society pointed out that the removal of A. and C. from the Applicant’s care has necessitated a Child Protection proceeding to determine whether those children will be reunited with the Applicant. There has been significant emotional damage done to these children, because of the incident itself and by the disclosure of it, and their subsequent removal from their home and current separation from the Applicant.

36The Board is cognizant of the fact that both A. and C. are special needs children. Both A. and C. have been diagnosed with ADHD. In addition, C. has a familial history of mental illness, including schizophrenia. He displays disruptive behaviour and can be impulsive, distracted and disorganized.

37The Applicant faces additional challenges, particularly with A., who is now an adolescent with the challenges that adolescence raises. The Board heard evidence that the Applicant had been struggling for over a year with A.’s behaviour, which included stealing her Visa card to purchase online pornography, using his computer at night under a blanket, and baiting his brother.

38The Applicant testified that she had tried very hard but unsuccessfully to obtain assistance in dealing with A.’s behaviour, including requesting services through the Society, [Organization B], [Organization A], and other community resources. She testified that it was as a last resort that she administered what she called corporal punishment to him. She stated that she believed that C. was being bullied in the home and she didn’t know what to do anymore.

39At this point, A. does not wish to return to the Applicant’s home and C. wishes to do so. Each child has his own Children’s Lawyer. For both children, if there is a reunion with the Applicant, there will be a significant period of adjustment for all which should, in the Society’s view, require the Applicant’s full energy and attention.

40The question for the Board is whether it is in [the Child’s] best interest to return to a home that, at best, may not be reconstituted for many months and where his emotional needs may be affected by the surrounding family dynamics. Family reconstruction will require much work. If the children are returned, which according to the Society is the goal, they will have been affected significantly by the separation. The family will likely be a place of stress and adaptation while the two children, one a teenager, are reintegrated into the family.

41The Board is of the view that, although the Applicant was formerly able to meet the physical, mental, and emotional needs of [the Child], because of the altered circumstances mentioned above, all her resources will be required, and should be devoted, to meeting the needs of her own two children, A. and C..

42The Board is of the view that [the Child] deserves to be in a place of stability and calm, where his own needs can be a priority. It finds that it is not in [the Child’s] best interest to return to the Applicant’s home but rather it is in his best interest to be placed in a permanent home that can meet his immediate physical, emotional, and mental needs.

THE IMPORTANCE FOR THE CHILD’S DEVELOPMENT OF A POSITIVE RELATIONSHIP WITH A PARENT AND A SECURE PLACE AS A MEMBER OF THE FAMILY

43All parties agreed that while in the Applicant’s care, [the Child] had a very positive relationship with the Applicant and a secure place as a member of the family. All evidence heard by the Board attested to the close and loving relationship between [the Child] and his foster mother and that his foster brothers loved him, each in his own way. A. took care of [the Child] when asked to do so, and C. liked to play with him.

44As well, the Applicant was open to [the Child’s] biological family and had a positive relationship with [the Child’s] maternal grandmother. [The Child’s] biological parents supported the proposed adoption of [the Child] by the Applicant.

45The Board notes again that the situation has changed significantly. The presence in the family of [the Child’s] two foster brothers is uncertain at this time. If the boys do return home, the former equilibrium of the family will not be immediately regained. It will take much effort by the Applicant and the children to reintegrate. Although [the Child] formerly had a very positive relationship with his foster mother and a secure place as a member of the family, this has changed since May, 2011.

46The Board is of the view that it is not in [the Child’s] best interest to return to this uncertain situation.

47It has been noted by the Applicant that [the Child] is a healing influence in the family. The Board is of the view that this is not [the Child’s] role. [The Child] needs stability. He needs to be placed in a family where there is no current disruption or foreseeable risk of future disruption, and where he will have a secure place as a member of a family.

THE IMPORTANCE OF CONTINUITY IN THE CHILD’S CARE AND THE POSSIBLE AFFECT ON THE CHILD OF DISRUPTION OF THAT CONTINUITY

48The Applicant expressed her concern regarding the importance of continuity of care for [the Child]. For that reason, she submitted that [the Child] should be returned to her care immediately.

49The Society also submitted its concern regarding the effects of disruption of continuity of care on [the Child]. However, the evidence indicates that [the Child] is currently doing well in his current foster home and that all indications are that [the Child] will readjust and reattach well to a new family, due to his early age and his already developed secure attachment. The Board recognizes that [the Child’s] success in this placement is in large part because of the excellent care he received from the Applicant and his attachment to her.

50The Board notes that [the Child], now in a second placement since May 2011, has already had the continuity in his care disrupted. Given the realities of the Applicant’s challenges, it is unlikely that she will be in a position to offer [the Child] a stable home in the foreseeable future. The matter of continuity in his care is uncertain.

51The Board is of the view that it is in [the Child’s] best interest to be provided with a permanent home elsewhere as soon as possible.

THE EFFECTS ON THE CHILD OF DELAY IN THE DISPOSITION OF THIS CASE

52The Applicant noted her concern regarding the effects of delay and indicated that she wished [the Child] to be returned to her care immediately. The Applicant’s Counsel noted that further delay would allow [the Child’s] biological parents to request a Status Review by the Court.

53The Society expressed its concern regarding the negative effect of delay on [the Child] and indicated its plan to more forward with permanency planning for [the Child], while maintaining him in his current foster home.

54The Board notes that the Applicant faces criminal charges. At present, there is no confirmed date for this matter to be heard in Court. As well, the Applicant’s placement on the Child Abuse Registry has made her ineligible to foster or to adopt. The Applicant’s desire to address these legal matters is noted by the Board. However, there is no definite deadline by which these issues might be resolved.

55The Board is concerned about the effect of delay on [the Child]. The legal processes the Applicant might undertake would provide a significant delay for [the Child] and are indeterminate at this time. However, delay and disruption will affect [the Child’s] chance to reattach to new adoptive parents.

56[The Child] is now 22 months old and is currently in his second foster home. Although he is apparently doing well, time is moving on. Permanency planning is critical at this stage in order not to traumatize or damage [the Child] with further moves, which could complicate the development of his reattachment to a permanent home. The Board’s concern is that [the Child’s] current equilibrium not be stressed further by undue delay in being placed with a permanent family. He cannot wait.

57The Board, therefore, is of the view that [the Child] should not be subjected to further delay, and that plans for a permanent placement for adoption should be accomplished as soon as possible.

ANY OTHER CIRCUMSTANCE: THE SIGNIFICANCE OF THE INCIDENT OF MAY […], 2011

58The Society submitted that it holds foster parents to a higher standard than regular parents in the community as they are dealing with a more vulnerable set of children. Foster parents are provided with a greater amount of training and information than other parents in the community. The standard expected of foster parents extends to other children in the family, not just those who are foster children. There is zero tolerance for corporal punishment. Despite this, and even with the years of training that the Society provided to her as a foster parent, the Applicant applied “corporal punishment” to A.. In spite of the training, support, and knowledge she had acquired, the Applicant exercised poor judgement. The Society was of the opinion that the Applicant’s choice to use “corporal punishment”, was done with intent and was premeditated to some extent. D.D., Program Manager, responsible for the Society’s Intake Department, testified that the incident of May […] was not corporal punishment, but child abuse. The Board’s role is not to decide if it was child abuse, but the Board agrees that it was serious and abusive.

59The Society submitted that the incident of May […], 2011 signified a fundamental change. It exposed an issue in the home which could not be explained. The Society’s perspective was that if there were a dynamic or behaviour on the part of the Applicant which could not be explained, the Society would not know how to protect children from that behaviour.

60The Society further noted that although [the Child] had made amazing strides with the Applicant, the same was also the case previously with A.. However, A. is now a challenging teen presenting difficulties to the Applicant and the evidence is that the Applicant responded inadequately to them. The possible repetition of that pattern with [the Child] is of concern to the Board. The Society pointed out that high needs children like [the Child] present social, educational and relationship challenges. There is a need for the parent to have different expectations for these children.

61The Board acknowledges the Applicant’s history as a strong survivor of early deprivation in her own family and of serious illness. Additionally, it notes that as a single parent, she has adopted two boys and fostered 20 children, some like [the Child] with serious difficulties. She has shown remarkable strength and resilience, as attested by her witnesses and the Society as well.

62However, the Applicant indicated that she has been treated for depression and has been on antidepressants since 2002. The Board notes that she was the sole care provider for three children with special needs. A. was creating additional stress on family life because of his behaviour. It appears that the Applicant was facing many stressors and she was becoming more vulnerable.

63The Board did not hear the Applicant fully explain her own emotional reaction causing the events of May […]. The Applicant, in her testimony, attributed her actions to her inability to access assistance in dealing with A.’s behaviour. Ms. A.R., Resource Worker, testified that the Applicant mentioned to her that the incident was ‘discipline gone wrong.’ The Applicant stated that this was a one time incident which would not reoccur because she now has access to assistance from [Organization A] through Dr. C.M.. She acknowledged that the counselling provided by the Society to assist her in dealing with recent events had been profitable for her.

64The Applicant’s testimony about the incident of May […] showed that she deliberately chose to take a shoe and hit A. because she believed that “maybe that would work” as a last resort. She did not deny that she hit him repeatedly. The Board is concerned by the fact that the Applicant rationalized her action during the incident. It did not appear to the Board that this was a sudden outburst, but rather a determined attempt to solve a situation with the last solution available, violence towards her son. Also, the Applicant presented very little emotion when she recounted the incident. The Board is concerned about what her behaviour signified and was not presented with any explanation for it.

65The Board was of the view that despite the Applicant’s admission that she had erred in judgement, she seemed not to accept the significance of, or acknowledge full responsibility, for her behaviour.

66The Board is left with the view that what triggered the incident of May […], is not well understood or explained. The Board is of the opinion that the Applicant’s parental capacity at this stage has not been fully assessed or understood. In the Board’s view, there would be a risk to returning [the Child] to the Applicant, particularly when the new family dynamic is not yet established or understood.

67Counsel for the Applicant questioned whether [the Child] had been unfairly caught in an administrative and legislative web. Had the requirements of the Act and the Standards unfairly obligated the Society to apprehend [the Child] and not to proceed with the Applicant’s application to adopt? He questioned whether [the Child], if already adopted by the Applicant, would be in the situation he is in now, permanently removed from her care. Counsel submitted that a set of decisions taken at a Society meeting on May […], 2011 led to a sequence of decisions which ultimately went against [the Child’s] best interests, those of continuity of care and a placement in a loving and secure home.

68In response to that concern, the Board finds that [the Child] has not been caught in a sequence of legislative requirements; rather those rules have been there to protect him.

69Counsel for the Applicant further submitted that at the May […], 2011 meeting attended by Society workers, where the decision was made to verify child abuse, the group did not have a full history of all the positive interactions the Applicant had had with the Society and that the meeting reviewed a biased history. He also submitted that the details regarding the bruising on A.’s shoulder and hip were not consistent across witnesses.

70The Board, rather than relying on the notes of that meeting, had an opportunity to hear direct evidence from Society witnesses and from the Applicant herself, and has based its decision on that evidence.

71Finally, Counsel for the Applicant suggested that the Board consider what its approach or decision might have been, had [the Child’s] adoption already been finalized. The Board notes that [the Child] is a Crown Ward available for adoption and is not the Applicant’s legal son. It is in that context that the Board must make its determination. The Board understands that the Applicant’s family is the only family [the Child] has had in his life, which makes the circumstances of this case so unfortunate.

DECISION

72The Board confirms the decision of the Children’s Aid Society of London and Middlesex to refuse the application of L.S. to adopt [the Child].

Suzanne Gilbert

Presiding Member

____________________Alina Lazor

Panel Member

Celia Denov

Panel Member