I.W. & D.W. v. Children’s Aid Society of the County of Prince Edward, 2011 CFSRB 36

CHILD AND FAMILY SERVICES REVIEW BOARD

I.W. & D.W.

v.

Children’s Aid Society of the County of Prince Edward

REASONS FOR DECISION

Date: October 11, 2011

Citation: 2011 CFSRB 36

Indexed as: I.W. & D.W. v. Children’s Aid Society of the County of Prince Edward (CFSA s.61)

INTRODUCTION

1I.W. and D.W. (the “Applicants”) have been foster parents with the Children’s Aid Society of the County of Prince Edward (the “Society”) for the past three years. In August of 2011, the Society made the decision to close the [Applicants’] home as a foster home and, as a result, proposed the removal of [the Child], born September […], 1994, from this home. D.W. (the “Applicant Foster Mother”) filed an application with the Child and Family Services Review Board (the “Board”) on August 22, 2011 challenging the proposed removal of [the Child].

2The Board in accordance with section 61(8.6) of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”), must decide what action is in the best interests of the child and either confirm the Society’s proposed removal or direct the Society not to carry out the proposed removal. The Society challenged the jurisdiction of the Board to hear this case. The reasons for the Board’s decision on the jurisdiction motion and the proposed removal are set out below.

3The Society did not express any concerns regarding the care or level of supervision that [the Child] received while living with the Applicants. The focus of the Society’s concerns and conflict with the Applicants involve discrepancies in mileage claims and complaints about workers pertaining to another youth in the Applicants’ home, which led to a deterioration in the relationship to such an extent that the Society did not feel that the best interests of the Child could be met.

4The evidence of the Applicant Foster Mother, the Child Advocate and [the family friend] demonstrate that the best interests of the Child have been served and will continue to be served by him remaining in this home. As such, the Board orders the Society not to carry out the proposed removal of the Child from the Applicants’ care.

BACKGROUND

5The Applicants have been foster parents for over 25 years. They have two biological children, have adopted two children and have cared for over 200 children in their home. The Child has been residing with them for the past five years and came to them at the age of twelve. He is a high maintenance child with developmental delays requiring twenty-four hour supervision. Another foster child was residing with the Applicants between May 2010 and June 2011 and the concerns that the Society had regarding the Applicants related to this youth, [“the foster sister”].

6The Society started having concerns in January and February of 2011 when Mr. S., the Executive Director, reviewed mileage claims and noted the high claims submitted by the Applicants. He asked staff to look into the matter. School records indicated that the [foster sister] was absent from school on four of the days that the Applicants claimed mileage for driving her to school. Also, staff claimed that the youth was spending days and nights with her birth mother when the Applicants would not have to drive her to school or work. There was also a claim for towing expenses that [the foster sister] and the Society paid between them. Additionally, staff could not reconcile some of the distances claimed. The Executive Director asked the Applicants for an explanation of their claims, particularly with respect to driving the [foster sister] to work and to school. The issue was not resolved and they met again on June […], 2011 to continue to review mileage claims and to discuss service concerns that the Applicants had brought up. The Applicants asked that the meeting be adjourned and rescheduled and due to conflicting schedules, another meeting did not take place until early August 2011.

7Early in 2011, the Society considered options for moving [the foster sister] out of the Applicants’ home into another foster home or an Independent Living Program due to her health issues with high blood pressure, which was exacerbated by tension in the home. [The foster sister] did not want to tell the Applicant Foster Mother about the move so as not to upset her. However, on April […], 2011, [the foster sister] told the Applicant Foster Mother that the Society was planning to move her out of the Applicants’ home behind the Applicant Foster Mother’s back.

8The Applicant Foster Mother raised complaints about [the foster sister’s] worker and in one of the meetings, called the worker a liar. She also raised complaints about her lack of involvement in Plans of Care for children residing in her home. The Society investigated her complaints and did not substantiate them. A meeting between the Executive Director and the Applicants was held in August 2011, but the issues were not resolved to the Society’s satisfaction. The letter of August […], 2011 to the Applicants from the Executive Director outlined the Society’s reasons for their decision to close the home. This letter implicitly gave notice of the Society’s intention to remove the Child when the Executive Director asked for the Applicants’ co-operation in preparing [the Child] for transfer from their home.

ANALYSIS

Jurisdiction

9This application is governed by s. 61 of the Act. Foster parents who have cared for a crown ward continuously for two years can apply to the Board to review the proposed removal of the child. Under section 61 (7), the Society shall provide ten days notice of the proposed removal and must include details of the right of review to the Board. This is in place to permit foster parents to challenge and prevent a removal, depending on the best interests of the child. An application to the Board operates as a stay of the proposed removal until the Board determines the issue [s. 61 (8.7)]. However, a Society can remove a child for risk at any time [s. 61 (9)].

10Under section 61 (8.6) of the Act, once the Board hears an application, it can, depending on which action is in the best interests of the child, confirm the proposal to remove the child or direct the Society not to carry out the removal.

11The Society argued that section 61 of the Act governs the factors to be considered in the placement of crown wards, and regulates the initial movement of a crown ward. It does not regulate the foster program, how foster parents are selected, trained and screened, or the decision to close a foster home. They submit that:

the closure of a home is the decision of the Society after careful review; there is no process for the Board to review the closure of a home; the result of a closure is the movement of a crown ward and the review of the movement of a crown ward does not mean a review of the closure of the home. Therefore, according to the Society, the Board cannot adjudicate this issue. If the Board assumes jurisdiction and the result is that the youth remain in the home, there will be no home for him to go to.

12The Applicant Foster Mother argued that the Board has to decide what is in the best interests of the Child. She is looking for only one specific child, [the Child], to remain in her home.

13The Board has jurisdiction to hear this review because, as required by subsection 61(7), the Child is a crown ward. The Applicants are foster parents and the Child has lived for over two years with the foster parents. The Society gave notice to the Applicants in a letter dated August […], 2011 of its intention to close the home and implicitly gave notice of the removal of the Child when the Executive Director asked for co-operation in transferring the Child out of the home.

14The Society’s argument is that the Board does not have jurisdiction to review the removal of the Child from the foster home because it does not have jurisdiction over the closure of the foster home. The Act does not give the Board the authority to review the closure of the home in general, nor can the Board order the home to be re-opened. The Board’s legislative mandate is clear. The legislation places no limits on the Board’s authority to review a proposed removal in the face of a foster home closing. Societies cannot unilaterally take themselves outside of the scope of the legislated review by “closing” foster homes. The Board fulfills its legislative mandate by conducting the review and determining the action that is in the Child’s best interests. Further, the Board retains its remedial authority and can direct the Society not to carry out the proposed removal or confirm the proposed removal. The parties must then take the necessary steps to comply with the Board’s order which is based on the best interests of the child.

15The Board determined that it had jurisdiction and proceeded to hear the merits of the application.

Merits

16The Board determined that it was in the Child’s best interests to remain with the Applicants.

17The Board, in accordance with section 61(8.6) of the Act, must decide what action is in the best interests of the child. The Board considered the following relevant factors in section 37(3) when making its determination:

1. The Child’s physical, mental and emotional needs and the appropriate care or treatment to meet these 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 the family.

4. The Child’s relationships and emotional ties to a parent, sibling, relative, other member of the Child’s extended family or member of the Child’s community.

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

6. The merits of a plan for the Child’s care proposed by a society, including a proposal that the Child be placed for adoption or adopted, compared with the merits of the Child remaining with or returning to a parent.

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

8. Any other relevant circumstances

Best Interests of the Child

18The position of the Society is that the best interests of the Child cannot be met in the home of the Applicants due to the deterioration in the relationship and the lack of trust between the Society and the Applicants. [The] Executive Director, M.R., Children’s Services Supervisor, and S.W., Resources Supervisor, testified to the concerns that led to the closing of the Applicants’ home as a foster placement and, as a result, the proposed removal of the Child from this home.

19The Executive Director testified to a number of unresolved issues, one of them being the discrepancy in the mileage claims. He met with the Applicants and P.D., Advocate for Foster Parents, on April […], 2011 to ask for an explanation of these claims. The Applicant Foster Mother admitted that she may have made some errors, that even if [the foster sister] was at her birth mother’s, someone would have driven her home and then taken her to school, and that she did not understand how the bill for the towing was double charged and that it was a mistake. The Executive Director testified that they could not come to a resolution on the expenses and he said he would take another look at them and then reconvene. In the meantime, the Applicants submitted back claims for mileage for several months.

20The Society and the Applicants met again on June […], 2011 and the Applicants raised their concerns about the Society. The meeting did not go well and since the Applicant Foster Mother was not prepared to continue to participate in the meeting, it was adjourned. A meeting scheduled for later in the month did not proceed since the Applicant Foster Mother denied getting a message regarding the date and time of the meeting. However, staff said that the Applicant Foster Mother had returned the call saying she would attend. The Executive Director met with the Applicants again early in August 2011 to address the Applicants’ complaints which were quite serious and included criticisms and accusations of staff lying and not responding. [The Executive Director] had a discussion with them about calling a staff member a liar and the Applicant Foster Mother agreed not to do so. The Applicants raised issues concerning their limited involvement in Plans of Care, the number of contacts with workers and their lack of involvement in planning for school. The Executive Director investigated their complaints and found on the electronic logs, phone calls logged where they were informed of events at school and a high level of worker contact. He also found three Plans of Care for [the foster sister] with the signature of the Applicant Foster Mother. Mileage claims were discussed at this meeting. The retroactive mileage claims were denied as were the claims for damaged electronic equipment.

21These events left the Executive Director with the conclusion that they could not resolve the issues. He felt that it was not the problems but the inability to come to an understanding and restore trust that was at issue. The Applicants expressed great dissatisfaction with the Society and, in his view, were unable to take responsibility. He felt that if the Society could not be confident that its instructions could be fulfilled, then it could not rely upon the Applicants to provide care for the Child.

22The Applicant Foster Mother testified that the Executive Director accused her of misrepresenting her mileage claims. She did not believe that she made that much of a mistake but admitted that she could have made some. In the meeting of April […], 2011, her husband told the Executive Director twice that he could take the disputed amount off on the next cheque. Any errors were not intentional. The towing charge was an error and she told the Executive Director to take it off the claim. She believed that the issue was settled.

23[The] Advocate for Foster Parents, attended the April […], 2011 meeting with the Executive Director and testified that the Applicant Foster Mother was upset and said that if there were any errors, they can be rectified on the next cheque. The Advocate also suggested that the Applicant Foster Mother could have driven [the foster sister] to school and then [the foster sister] could have skipped school.

24[The] Children’s Services [Supervisor], testified to issues relating to the [foster sister] who was residing in the Applicants’ home. Around the end of February, beginning of March, [the foster sister] reported a number of stressors at the home resulting in her spending a lot of time outside the home at her birth mother’s and her boyfriend’s home. She was also suffering from high blood pressure requiring medical treatment. Other options such as another foster home or an Independent Living Program were explored by the Society with [the foster sister]. Since she indicated she wanted to move, but was concerned that the Applicant Foster Mother would be upset if she knew, the Society wanted to get a plan in place first before informing the Applicant Foster Mother. When [the foster sister] came back from a relief placement on April […], 2011, she told the Applicant Foster Mother that the Society planned to move her behind her back. In retrospect, the Supervisor thought that the matter could have been handled in a more appropriate way.

25[The] Resources Supervisor testified that she became aware of the above issue on April […], 2011, when it was reported to her that L.A., [the] Resource Worker, at approximately 10:00 p.m. received a call from the Applicant Foster Mother who was hysterical, yelling, and screaming. [The Resource Worker] reported trying to calm her down and told her to call [the Resources Supervisor]. However, the Applicant Foster Mother refused to call her, claiming that she had a vendetta against her.

26The Resources Supervisor testified that the above incident put the Child at risk since the Applicant Foster Mother was hysterical and out of control when she called [the Resource Worker]. [The Resource Worker] had asked her where the children were and she had said that [the foster sister] was beside her. It was late and she presumed that the other children were in the house.

27The Applicant Foster Mother testified that she was outside on the porch when she telephoned [the Resource Worker] and that both children were not present during the call. She said that she was upset and not hysterical. She called [the Resource Worker] at approximately 9:45 p.m., which was not extremely late and she had been told she could call at any time. She was told to call [the Resources Supervisor], but she did not call her since she had a poor relationship with her. No one called her back to speak to her about this issue. She spoke to [the Children’s Services Supervisor] a few days later, but she would not give her an answer as to why they were moving [the foster sister].

28The Board is here to determine the best interests of the Child. The Society did not present any evidence as to how his best interests had not been met by the Applicants. The Society has argued that the relationship and trust between the two parties had deteriorated and that it could no longer trust that its instructions would be carried out by the Applicants. However, no evidence was presented relating to the Child where conflict and poor relations affected his care or level of supervision. Most of the issues relate to relationships between Society workers and the Applicants and to the [the foster sister], who is no longer residing in the home. The Executive Director could not recall any issues directed to him relating to the Child. [The Resources Supervisor] claims that the Child was at risk when the Applicant Foster Mother made the call to [the Resource Worker] in a hysterical state, however, she could not ascertain that the Child was there. Also, the Applicant Foster Mother said that she was only upset and not hysterical and that the children were not present when she made the call. Again, there was no evidence that this call impacted the Child who is the subject of this proceeding.

29The Child has lived with the Applicants for the past five years. During this time, the Child’s needs have been met and, in a written statement read by the Child and Youth Advocate, he expressed his desire to stay in this home. The Child has required extensive support from the Society including full-time educational support, enhanced relief, after-school support, and full-time summer support. The Applicants have been able to work co-operatively with the Society and the host of support staff over the past five years without any major issues or complaints. There are no indications that they will not be able do so in the future to ensure that the best interests of the Child are met.

30The Board finds that there is insufficient evidence to determine that the best interests of the Child cannot be met in the Applicants’ home.

Family, Continuity of Care, Emotional & Developmental Needs, Child’s Wishes

31The Child is a seventeen year old youth who will be transitioning at the age of eighteen from the Children’s Aid Society to the [Program]. The [Program] provides support for individuals with developmental disabilities. The Child has resided with the Applicants for the past five years.

32The Applicants have been involved in planning for his transition and want to be a part of his life even past the age of eighteen when the Child transitions to the [Program]. The Applicants want him to continue to reside with them. The Applicant Foster Mother stated that they consider him to be a member of the family. The Applicant Foster Father provides a strong male role model, a strong work ethic and teaches him achievable job skills. He pays the Child ten dollars an hour in his yard service business. The Child’s best friend is the Applicants’ grandson. All of the Applicants’ children live in the area. The Applicant foster father’s mother resides with the Applicants and drives the Child to school [ ]. The Applicants pick him up.

33The Applicant Foster Mother helps the Child to identify his feelings when he is hurt, angry, or sad and responds to his needs. She can anticipate his moods and can deescalate him before he explodes. She described the Child as having a great singing voice, and his involvement in a range of activities such as swimming, bike rides, kayaking, making models and his love of cars.

34[The family friend], a retired Special Education Consultant with [ ] Board of Education and a foster parent with Probation Services, is a family friend of the Applicants. He stated that he first met the Child five or six years ago. He described the progress of the Child over the past five years as “truly amazing”. Initially, the Child needed lots of supervision, had non-existent social skills and having dinner with him was a trial. More recently, the Child went through a four course dinner using the implements appropriately, carried on a conversation at the table and then went downstairs to socialize with his kids. Over the five years, the Child has become a functioning individual.

35[The Resources Supervisor] testified that the impact of a move on the Child will be difficult considering his special needs. However, she stated that the impact will be mitigated by his long term relationships with other foster parents and workers. The Executive Director testified that a move will impact the Child since he has a number of challenges, however, the Child will be undergoing changes in the next few years in any event.

36The Child and Youth Advocate spoke to the Child alone prior to the hearing to ascertain his wishes regarding his removal from the Applicants’ home. She found that he was able to articulate his thoughts. She asked him to express the following views at the Board hearing and why he wants to maintain at his placement. He knows [the Applicant Foster Mother] and [the Applicant Foster Father] as “mom” and “dad” or together as “my parents”. He would be upset, and if he would never see “mom” and “dad” again, he would lock himself in his room. They understand how he feels and he does not have to tell them. He is doing very well at school and will be attending [school B] in Grade 11 in the fall. A move will impact his life, not his schooling. A move will “hurt”. When the Advocate asked if he would like a lawyer to represent him, he said, “yes, to challenge the removal”.

37The Board has heard evidence from the Applicant Foster Mother that the Child has bonded with them and their extended family. The Board has also heard from the Child and Youth Advocate that the Child’s wish is to stay with “his mom and dad”. It also heard from [the Resources Supervisor] and [the Executive Director] that the move will impact the Child because of his developmental difficulties. It has heard from [the family friend] that the Child has progressed well developmentally during his five years with the Applicants.

38The Society’s plan for the Child is to place him in another foster home for the coming year and then transition him again at the age of eighteen to community services. This will result in two moves for the Child in the coming year and greatly impact him given his level of development. The Applicants are willing to continue to care for the Child and provide a home for him even after he transitions to community services.

39The Board finds that it is in [the Child’s] best interests to remain in [the Applicants’] home in the interests of continuity of care, to avoid the negative impact of the move and to meet his needs given his level of development. The Board finds that the Child has bonded with the Applicants and that they are responsive to his physical, emotional and developmental needs. They also treat him as part of the family and wish to help with his transition and remain involved with him as an adult. The Child has developed a positive relationship as part of the Applicants’ family and it is his wish to remain with them. The Board has heard no evidence on the basis of which it could find otherwise.

DECISION

40The Board finds that it is in [the Child’s] best interests to remain in the care of [the Applicants]. As such, the Board orders the Society not to carry out the proposed removal of [the Child] from [the Applicants’] home.

Gail Gonda

Presiding Member

Lorna King

Panel Member

Mary Wong

Panel Member