J.T. v. Tikanagan Child and Family Services, 2011 CFSRB 47

CHILD AND FAMILY SERVICES REVIEW BOARD

J.T.

v.

Tikanagan Child and Family Services

REASONS FOR DECISION

Date: December 9, 2011

Citation: 2011 CFSRB 47

Indexed as: J.T. v. Tikanagan Child and Family Services (the “Society”)

(CFSA s.61)

INTRODUCTION

1This is an application by J.T. (the “Applicant”) under section 61(7.1) of the Child and Family Services Act (the “Act”) for a review of the proposed removal of J.M. (the “child”) by Tikanagan Child and Family Services (the “Society”).

2The Applicant is seeking an order rescinding the decision of the Society. She believes it is in the child’s best interests to remain in her foster home because the child has been in her care for over seven years and was doing well. Furthermore, the Applicant has a positive relationship with the child’s biological mother who does not support the removal. Counsel from the Office of the Children’s Lawyer (the “OCL”) who represented the child’s interests, is in support of the Applicant’s position for the child to remain in her care.

3Pursuant to section 61(8.6) of the Act, the Board must decide what action is in the child, [ ] best interests.

4The Board has determined that it is in [the child’s] best interests to remain in the care of the Applicant. The Board rescinds the decision of the Society to remove the child from the care of the Applicant for the reasons that follow.

BACKGROUND

5The child, [ ] was born on […], 1995. She is a crown ward with the Society. [The child] is from the community of [city 1] and is a member of the Band. She came into the care of the Society on February […], 2004 when her mother was no longer able to care for her. She was placed in the Applicant’s home on May […], 2004. The Applicant’s home is a foster home in [city 2] under the jurisdiction of the [another society]. [The other society] was contracted by the Society to supervise the care of the child and the foster home.

6[The child] has significant delays in all areas of functioning. She is non-verbal, does not chew her food and needs assistance in walking, toileting and dressing. She was diagnosed in 2007 with Down’s syndrome, fetal alcohol syndrome, autism, and developmental delay and had had previous cardiac surgery. She is described as functioning at the level of a two year old. She is physically small for her age and is described as the size of a six or seven year old child.

7The Applicant was married at the time [the child] was placed in her care, but separated from her husband in 2007. The Applicant has three biological sons, who at the time of her application to the Board were twelve, fifteen and sixteen. They all reside with the Applicant and were five, eight and nine at the time [the child] was placed in their home. [The child] has had visits with her biological mother on a regular basis since she was placed in the Applicant’s care.

8In 2008, the Applicant took on part time cleaning work in order to supplement her income. This involved cleaning office buildings in the late afternoon or evenings for a few hours each day and on Sunday. At that time, her biological sons were nine, twelve and thirteen. The Applicant had arranged for her older boys to take a babysitting course to assist her in caring for [the child] and to be with [the child] during the hours she was at work. The Applicant’s working hours were flexible such that she could go into work after [the child] was asleep or not at all if [the child] was not well or unsettled. This arrangement was in place with the knowledge of the Applicant’s worker at [the other society] until the time of her application to the Board.

9The Society became aware of the Applicant’s sons’ role in caring for [the child] in the spring of 2011. The Society believed that the Applicant’s arrangement for the care of [the child] by her sons while she was at work was not an appropriate arrangement. Six interagency (“ISA”) meetings involving staff and supervisors from the two agencies took place between May […], 2011 and September […], 2011 in order to discuss other childcare options. The Applicant attended three of these meetings by teleconference. A number of options were explored at these meetings without a decision being made about a replacement childcare option for [the child] while the Applicant was at work. A report of the ISA meeting held on September […], 2011 indicated the Society’s intention to remove [the child] from the Applicant’s home. The Society informed the Applicant in writing on September […], 2011 that it proposed to remove [the child] from her care.

10The Board held a pre-hearing teleconference on October 24, 2011 during which the Society informed the Applicant that she could not allow her sons to care for [the child] while she attended at work. The Applicant brought [the child] to [the other society’s] office on the following day since she had to work and no other childcare option was available. The Society contracted with [ ], an agency that serves special needs children, to provide care for [the child] and she was placed in a treatment foster home on October […], 2011.

11The Board held a second pre-hearing teleconference with the parties on October 28, 2011. It was scheduled to clarify whether the Applicant wished to proceed with her application to the Board. The Applicant expressed the wish to proceed and to seek the return of the child to her care.

PRELIMINARY ISSUES

12The Society brought a motion on November 22, 2011 requesting that the Board not proceed with the Application. The grounds for the motion were that the application was moot since the Applicant had returned the child to the Society and the Board no longer had jurisdiction to hear the matter. The Board heard arguments on the motion from the Society, the Applicant, and the child’s lawyer on November 24, 2011.

13The Board had to determine whether the application was moot because the Applicant returned the child to the care of the Society. The issue when considering mootness is whether there is a live controversy between the parties. The Board determined that the application is not moot and that it would proceed for the following reasons.

14The Society argued that the wording of the Act limits what the Board can do since, in fact, the child was returned by the Applicant and was no longer in the foster home and the Board therefore could not order the Society not to remove the child. The Society cited two of the Board’s previous decisions to support its argument.

15The Applicant submitted that she is a self-represented party and sought advice from a number of individuals about her situation before returning the child. She stated that none of them was familiar with the Board’s process and expressed the view that it was ultimately up to the Society to make a decision about the child. She stated that at the time of the pre-hearing on October 24, 2011, the Society was asked if the child would remain with the Applicant until the Board’s process was completed. The Society stated that the child could remain only on the condition that she was never left alone in the care of the Applicant’s sons. The Applicant believed that this was an unfair position for the Society to take since, in her view, this had been the central issue to be decided. She further stated that if she had a “shred of hope” of having the child remain, she would never have returned her and that she had wanted the child to remain in her care, but the Society had placed an impossible condition upon her.

16The child’s lawyer noted that the child cannot speak for herself and that there is a power imbalance between the Applicant and the Society because the Applicant is a single mother who is unable to hire a lawyer to represent her in this case. He argued that the Applicant had not been given proper notice of the motion by the Society and therefore insufficient time to prepare her arguments. He stated that the Board’s proceeding was meant to address the decision of the Society that was made in September to remove the child and not the Applicant’s later decision made under duress. He further noted that no one said the foster mother did not properly care for the child and that it would be unfair not to proceed with the application.

17The Society has combined issues of jurisdiction with those of mootness. In terms of mootness, the main point of the dispute between the parties has not disappeared or been resolved. The question is: is there a live controversy between the parties? Since the Applicant sought the return of the child, there was a live controversy between the parties. Because the Applicant wants the child returned, the main determination for the Board: what action is in [the child’s] best interests - living in the care of the Applicant or not - is very much alive. Practically speaking, the Board retains the remedial authority to confirm the proposal to remove the child (or the later “removal”) or to confirm the Society’s decision. The effect of the Board’s decision would be the return of the child to the Applicant’s care or the permanent removal of the child from her care.

18In terms of jurisdiction, the legislative provisions do not preclude a review in the circumstances. The Applicant started her application for review while the child was still in her care and there was a proposed removal. Further, the Act anticipates cases in which a child will be removed for risk and the application proceed. In any case, the Board has in the past, reviewed actual and not just proposed removals of children. The return of the child was made in circumstances which did not alter the Applicant’s desire to pursue the return of the child. It can be described as “interim” (pending the decision of the Board) and based on the difficult position that the Applicant felt the Society had placed her in. Further, section 61 of the Act does not stipulate that the right to review is forfeited by any action taken by the foster parent.

19With respect to the timing of the motion, the Society had notice of the Applicant’s position when the Board asked her if she wanted to proceed with the application on October 28, 2011. The Society was present during the teleconference and knew this to be Applicant’s position. They did not object at that time.

20Regardless of the timing of the motion, the Board has heard the motion and found that the application is not moot.

21The Board denied the Society’s motion and proceeded to hear the application on the merits.

ANALYSIS

22The Board must decide what action is in the best interests of [the child] having regard to the considerations set out in section 37 (3) of the Act. The sole issue before the Board is [the child’s] best interests.

23In coming to its decision, the Board considered the following provisions under the Act:

37 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

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

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

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

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

1 (1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

3. To recognize that children’s services should be provided in a manner that,

i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment,

ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children.

Physical, Mental and Emotional Needs and Level of Development

24Evidence was submitted by the Society regarding the child’s needs and level of development. She has complex, special needs and multiple diagnoses that include Down’s syndrome, fetal alcohol syndrome, autism, and developmental delay. She requires assistance in feeding, toileting and dressing. She has a heart condition which required surgery in 1999 and may require additional surgery in the future. She walks on the sides of her feet and has been fitted with braces to better support her. She was described in a recent plan of care dated May 2011, as functioning at the level of a two year old.

25The Applicant was described by all of the Society witnesses as providing good care for the child, [ ] for over seven years and no evidence was produced to the contrary. The Applicant has proven herself capable of providing for the physical, mental and emotional needs of the child for more than seven years.

26The Society provided evidence that the child had made a number of gains in the placement she has been in for the last month. These included a reduction in head banging and clearer skin. The child’s worker from [the other society] acknowledged that the Society in its plan of care, could be focusing on additional programming activities which might further assist the child to become as independent as possible. The Applicant expressed a willingness to undertake any such additional programming that might facilitate the child’s development and skill level.

27The Board finds that the child’s physical, mental and emotional needs have been met while in the care of the Applicant.

The Importance for the Child’s Development of a Positive Relationship with a Parent and a Secure Place as a Member of a Family

28The child has resided with the Applicant and her three biological children for more than seven years. The Applicant and her mother testified to the loving bond that the entire family has with the child and the extent to which she is at the centre of the family’s concern. It is difficult to know the extent of the bond from the child’s point of view because she cannot speak for herself. However, the Board heard no evidence to suggest that the bond is not equally strong on the child’s part, despite the fact that she made a good adjustment in the current foster home. It is possible that the positive adjustment that she has made is an outcome of the strong bond and the secure place she has in the Applicant’s family.

29The Board heard evidence of the positive relationship the Applicant has maintained with the child’s biological mother since the child has been in her care. The child has regular visits with her biological mother that vary in length. The biological mother wrote a letter of support for the Applicant in which she described the loving relationship she has witnessed between the child and her foster brothers. She stated that the child is getting the love and the care that she needs at the Applicant’s home.

30The witnesses for the Society, the Applicant, the child’s maternal grandmother, and the child’s biological mother attested to the loving bond that the family has with the child which has been established over a long period of time. The child has thrived in the Applicant’s care and no evidence was presented to suggest otherwise. It is unlikely that if the child could speak for herself, she would express something different from what was consistently expressed by all of the witnesses. On the balance of probabilities, the evidence has shown that the relationship that the child has with the Applicant and her foster brothers is both positive and secure.

The importance of Continuity in the Child’s Care and the Possible Effect on the Child of Disruption of that Continuity

31The Board heard from the Applicant that she had been caring for the child, [ ] since May 2004. The Board did not hear any evidence from the Society that the care provided by the Applicant was inadequate or failed to meet the child’s needs. This is significant in light of the physical and developmental challenges which the child has faced since birth and will continue to face throughout her life.

32The Board heard evidence of the impact on the Applicant and the maternal grandmother of the disruption in the child’s care upon them. The issue however, is the impact on the child. The position of her Counsel is that continuity of care with the Applicant should be preserved. Although the Board heard evidence that the child had made a good adjustment in her current placement, it is reasonable to assume that the disruption in her care has had, and will continue to have, an impact on the child. It would be unfair to the child, who cannot speak for herself, to think otherwise. In the absence of direct evidence from the child, the possibility of an impact has to be given weight and the Board does so. Given the positive nature of the child’s care, the Board finds that there is no reason to disrupt the continuity of her care with the Applicant.

Level of Risk

33The proposed removal of the child, [ ] by the Society was the result of the Society’s belief that it was inappropriate for the Applicant’s sons to care for [the child] while the Applicant was at work. The Board heard evidence that [the other society] had knowledge from the time that the Applicant took on part time cleaning work in 2008, that she would be relying on the older boys to assist her. [ ], one of the child’s workers from [the other society] who became involved in the case in September of 2010, learned that the arrangement had been in place for some time. She learned this from the previous worker who indicated that there were no concerns about the arrangement.

34The Society did not come to learn of this arrangement until the spring of 2011 as the result of a referral from the Applicant’s ex-husband, [ ]. The Board heard evidence from OPP Constable C. regarding the history of harassment by [the ex husband] against the Applicant and criminal charges related to it. Constable C. stated that the OPP notified the Society about [the ex husband’s] behaviour toward the Applicant. [The ex husband] had also contacted the Society to raise concerns about his boys caring for [the child] and the care she was receiving in the Applicant’s home. The Applicant stated that she believed [the ex huband’s] referrals to the Society constituted another form of harassment against her. The Society stated that although the information they obtained from the police and the referrals from [the ex husband] did not meet the threshold for an investigation under the Eligibility Spectrum, they reviewed the matter as a foster home issue.

35The Society came to have knowledge in the spring of 2011 that the Applicant’s boys were involved in [the child’s] care, including changing her diapers if needed. [The], Director of Services from the Society, stated that this situation raised concerns regarding “liability and [the child’s] dignity and respect”. The Society believed that it was inappropriate for teen-aged boys to be diapering a female who was a teenager herself, despite the fact that she did not look like a teenager nor behave like one. In addition, the Society reported that they consulted with members of the child’s Band who felt that it was inconsistent with their own cultural norms for this arrangement between siblings to be in place. The Society was also concerned with the issue of liability, should there be a medical emergency while the child was being cared for by the boys.

36Records from the ISA meetings that took place between May […], 2011 and September […], 2011 indicated that once the Society became aware of the Applicant’s sons’ involvement in childcare arrangements for [the child], it initiated discussions with [the other society] to explore other options. The options that were considered included in home respite, out of home respite, the Applicant quitting her job, and support from the Applicant’s fiancé E.D.. There were difficulties obtaining both in home and out of home respite due to the lack of resources available. In addition, the Board heard that the Applicant was reluctant to have strangers in her home because of a past negative experience. Although the Applicant stated that she was prepared to quit her job, this was never demanded of her, nor in her view, had the process of exploring options been exhausted at the time the Society issued the letter regarding the proposed removal. The Society stated that it would consider her fiancé as an appropriate caregiver if he cleared the approval process required by the Society. That process was still underway at the time that the notice of proposed removal was given to the Applicant. He has since received vulnerable sector clearance which means that he can be considered as a caregiver for [the child] in the Applicant’s absence.

37The Society’s position was that it was liable as an agency if the existing arrangement with the boys remained in place. The Society also believed that it was culturally unacceptable for the boys to be changing [the child’s] diapers, despite the fact that the Applicant had agreed that they would no longer do so and that she would ensure that [the child] was diapered and in bed before she left for work. The Society provided no evidence that [the child] had suffered any harm as a result of this arrangement or that she was at risk as a result of the arrangement. Furthermore, the arrangement had been in place for a couple of years before the Society became aware of it. The arrangement had been originally made with the explicit knowledge and approval of [the other society] and, from the point of view of the Applicant, the implicit knowledge and approval of the Society.

38Furthermore, the steps taken by the Society when they received the referrals from the Applicant’s ex-husband, did not result in a determination that [the child] was at risk. The Board heard no evidence that [the child] had been harmed by the care she had received, nor was at risk of harm because of it.

CONCLUSION

39The Board heard evidence that [the child] has multiple diagnoses that significantly affect her both developmentally and physically. The Board heard no evidence to suggest that she has not been well cared for in the seven and a half years she has been in the Applicant’s care. The Board heard that the Applicant and her family have established a strong and loving bond with [the child] and despite the fact that [the child] cannot speak for herself, the Board believes that this bond must exist as well for her. Both the Society and the child’s biological mother attested to the care [the child] had received in the Applicant’s home and the loving bond between her and the Applicant’s family.

40The Board heard evidence to suggest that the process for finding a solution to alternate childcare arrangements was not a clear one. The decision on the part of the Society, although understandable, was both premature and arbitrary in light of the fact that the Society had no evidence to suggest that [the child] was at risk of harm. On the contrary, the Society came to learn that [the child] continued to be well cared for during the period the arrangement had been in place without their knowledge and with the knowledge and support of [the other society].

41[The child’s] needs have been met in the Applicant’s home for more than seven years. The Applicant is prepared to quit her job in order to ensure that the boys are not placed in the position of caring for her. Furthermore, the Applicant’s fiancé has received vulnerable sector clearance and would be considered by the Society as an appropriate caregiver, should the Applicant not quit her job and requires a caregiver in the home while she is working.

42The Board concludes that it is in [the child’s] best interests to remain in the Applicant’s foster home. The position of the child’s biological mother and the child’s lawyer is consistent with this conclusion. The Applicant has demonstrated her ability to care for [the child]. Given that past behaviour is the best predictor of future behaviour, the Applicant will be able to continue to do so, particularly given her level of commitment to the child and the positive bond that she has established with her. The Board recognizes that there is currently no contract between the Applicant and the Society for service, nor between the Society and [the other society] for service, since [the child] has been placed in a home operated by [the agency] and the contract is between the Society and [the agency]. However, in the Board’s view, that is a practical matter that should not stand in the way of meeting the best interests of the child in this case.

43The Board rescinds the decision of the Society to remove the child from the home of Applicant. In accordance with this decision, the child shall be returned to the foster care of the Applicant.

ORDER

44The hearing was conducted in private and was not open to the public. Parties and their representatives must not use, share or disclose any documents or information provided or used in this application with anyone, including the media or through the internet.