T.L. v. Kenora-Rainy River Districts Child and Family Services, 2011 ONCFSRB 50

CHILD AND FAMILY SERVICES REVIEW BOARD

T.L.

v.

Kenora-Rainy River Districts Child and Family Services

REASONS FOR DECISION

Date: December 20, 2011

Citation: 2011 CFSRB 50

Indexed as: T.L. v. Kenora-Rainy River Districts Child and Family Services (the “Society”) (CFSA s.144)

1(“D.”) is six years old and (“H.”) is five years old. T.L. (the “Applicant”) has applied for a review of the decision of the Kenora-Rainy River Districts Child and Family Services (the “Society”) to refuse her application to adopt [the children]. The Child and Family Services Review Board (the “Board”) heard her application under s. 144(1) (a) of the Child and Family Services Act (the “Act”).

2The Board must decide, under s. 144(11) of the Act, what action is in the best interests of (“the Children”), and accordingly, confirm or rescind the decision under review.

3The Applicant is seeking an order rescinding the decision of the Society. She believes that it is in the Children’s best interests to be adopted by her and her husband because they are friends of the family and she considers herself to be a kinship placement due to the strong ties between the families and the community. The Society believes that the Children should be placed with the foster parents who have cared for them since December of 2009. The foster parents have also expressed their wish to adopt the Children. The Band participated as observers at the hearing and did not express a position on this issue.

4The issue to be resolved is whether the Applicant can observe the boundaries between [ ] (the “Mother”) and the Children, since the Applicant is a close friend of the Mother who has no access to the Children. The Society is concerned that the Applicant has a stronger relationship with the Mother than the Children.

5Considering the best interests of the Children, the Board affirms the decision of the Society to refuse the Applicant’s application to adopt the Children.

BACKGROUND

6The Children are Aboriginal, from [the] First Nation. The Applicant is the biological mother of two grown children from a previous marriage, who are members of [the] First Nation. Though she is not of native descent, her two children are of native descent through her first husband. She has a stepdaughter from her current marriage. A foster child, the sister of the Children, and the Applicant’s mother live with them in the family home which is located on [ ] outside of town. Her husband has worked at the [ ] for the past thirty-eight years. The family enjoys outdoor sports such as fishing, swimming and hunting.

7The Applicant just started a new position as a [Worker]. For the past six years, she was the [program] Coordinator at the [centre]. The Applicant first met the Mother when she was referred to the [program]. She became friends with the Mother and in December of 2009, decided to end their professional relationship in order to maintain the personal one.

8The Mother was caring for the three year old son of her partner when the child died suffering from extensive bruising and she was charged with second degree murder in his death. In the Preliminary Hearing, the Criminal Court did not find enough evidence to connect the child’s injuries to her and the case did not proceed to trial.

9The Mother has six children, all of whom have been apprehended. Two of the children are in the care of [another society]. In the most recent Court applications, the other four children, including D. and H., were placed in the care and custody of the Society under a temporary care order on July […], 2010. The Children were found to be in need of protection on March […], 2011 and made crown wards with no access on July […], 2011. The Applicant testified on behalf of the Mother during the Child Protection Application.

10The Applicant applied for a Structured Analysis Family Evaluation (“SAFE”) homestudy as a kinship home for the Children in February of 2010. The homestudy, completed on March […], 2010, initially approved the Applicant and her husband as a kinship home, but it was amended on April […], 2011 and the home was not approved due to the concerns of the Society regarding the Applicant’s testimony in court.

11The Applicant called the Society in July of 2011 requesting to start the adoption process for the Children. She was told at the end of August that her homestudy had been amended and that she was not approved. She filed an application with the Board on October 31, 2011 asking the Board to review the Society’s decision to refuse her application for adoption.

ANALYSIS

12The issue before the Board is to determine whether it is in the Children’s best interests to be placed for adoption with the Applicant, in light of the close relationship between the Applicant and the biological mother, or whether it is in the Children’s best interests to be placed for adoption with another family.

13In determining which action is in the Children’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,

14The Board was required to and did consider some specific relevant factors to this case, enumerated in section 136 (2) and (3) 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 cultural background.

139. The child’s relationship by blood or through an adoption order.

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

141. Any other relevant circumstance.

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions of preserving the child’s cultural identity.

The Children’s Needs, Native Cultural Background and the Importance of Continuity of Care and Sibling Bonds.

15[The Children’s Services Supervisor], gave evidence about the Children’s needs and their progress in their current foster home where they are both doing very well. D. struggles with attachment, gets angry easily, acts out and is very rough with others. His behaviours have improved over time. Prior to coming to their agency, he had been placed with numerous homes and had many moves. H. has not experienced as much difficulty as D.

16The Children have been placed in their current foster homes since December of 2009 and over time they have done very well. The foster parents are very experienced and work closely with Society workers. Child Development is offering supports to the family. The foster parents (who are not Aboriginal) have already adopted two First Nations children and have stated their commitment to adopt the Children. The Children’s Supervisor is in favour of this adoption; however, this adoption is pending since the biological mother is appealing the decision of July […], 2011 of crown wardship with no access. The Children’s Services Supervisor does not want to move the Children and is very concerned about their attachment issues, which D. in particular, is still struggling with.

17The Applicant gave evidence that her family and the Children’s family spent time together. The Applicant stated that in April of 2009, when the Society gave the Children back to the Mother, she had no vehicle and the Applicant helped her. The families participated in birthday parties, bought Christmas presents for each other and there was quite an attachment between the Children and her grandchildren. She wants to adopt the Children because she loves them and already cares for their teenage sister under a customary care agreement. She wants to help the Children stay together.

18Since the Children were in care, the Applicant has asked for visits with them to build a relationship. A visit was arranged in June of 2011, during which the Society worker observed very little interaction. On the way to the visit, the Children did not seem to know who the Applicant was. The Applicant said that the worker did not observe the whole visit and that H. said I miss you, at the end of the visit.

19As noted above, the Children are Native and members of the [the] First Nation. The Applicant gave evidence that she has ties with the Native community through her two children who are Native and that Native culture is part of family life. Her family lives on [ ] and participate in fishing, hunting and swimming. She is a [worker] dealing primarily with Native clients and as a coordinator at the [centre], most of her clients were Native. Her foster child is enrolled in many programs through the centre, takes part in Native events and has the option to smudge. She intends to provide the Children with continuity in their cultural heritage by involving them in Native activities, programs at the [centre] as well as community events.

20The Applicant is committed to raising the Children in their Native culture. Although the Applicant may have had a relationship with the Children when they were very young, she has not had much contact with them since they have been in the care of the Society. Whatever attachment that she had with them appears to have been lost.

21The Board considers the attachment issue to be of great importance. The Children have been at the current placement for almost two years, and indications are that they are progressing well and have formed an attachment to the foster parents. Though the Children, especially [ ], is acting out and having behavioural issues, the placement has not broken down and the Children are happy. The foster parents are working closely with the Society and their Child Development Department to meet the Children’s developmental needs. The foster parents have a commitment to adopt, and the continuity of care that these parents can provide will benefit the Children greatly. The foster parents have already adopted and raised two Native children who are doing well. They are also committed to raising the Children in their Native culture. They have lived in a First Nation community for four years, have a number of Aboriginal friends and live a traditional lifestyle of hunting and fishing. They have agreed to facilitate an Openness Order of the Society with a member of each of the First Nation communities to communicate and maintain a relationship with the Children. This will help the Children recognize the importance of their Native culture, preserve their heritage, traditions and cultural identities.

22The Board concludes that it is in the Children’s best interests to remain in the foster home and be adopted by them because they have been there for almost two years and a move will disrupt the continuity of care at an age when attachment issues can greatly impact their development. The foster parents are committed to raising the Children in their Native culture and have the proven experience of raising two Native children whom they have adopted. While the Applicant is equally capable of providing a home with Native culture, the attachment and continuity of care in the current foster home weighs in its favour.

Relationship between the Applicant and Mother of the Children

23The Society presented evidence from [ ], the Adoption and Kinship worker, who completed the initial kinship SAFE homestudy for the Applicant and amended it in April of 2011. The Applicant had applied to be considered as a kinship home for [the children]. In March of 2010, she was approved as a kinship placement, but not as an adoption placement. She was a friend of the family and not part of the extended family within the definition under the Act. The Adoption and Kinship Worker explained that even though the home was approved, it does not necessarily mean that the Children will be placed there. The best interests of the Children have to be considered. The Kinship and Adoption Worker noted a concern in the initial homestudy; that because of the friendship between the Applicant and the Mother, boundaries may be blurred resulting in conflict between the Society and the Applicant or the Applicant and the Mother.

24[The Child Protection Supervisor], was involved in the child protection case of the Mother. He was present in court when the Applicant testified on behalf of the Mother. He stated that the Applicant, as the Coordinator of the [program], was responsible for assessing whether the Mother was capable of providing a safe environment. Yet, she gave evidence under oath that she did not ask questions about events leading up to the child’s death. The Child Protection Supervisor raised concerns about the boundaries she could enforce between the Mother and the Children. The Applicant’s testimony in Court in early 2011, verified the Society’s concerns. The Society has certain expectations and if an issue arises, the Applicant may not follow its direction due to her strong relationship with the Mother. The Society is concerned that the Applicant would be more committed to meeting the needs of the Mother rather than the Children’s.

25The Adoption and Kinship Worker reviewed the March 3, 2011 decision on protection and the July […], 2011 decision on crown wardship with no access. The findings of [the court] factored in her decision to amend the homestudy. [The court] concluded that based on the balance of probabilities, the Mother did cause the harm to her stepson. The Children were made crown wards with no access. The Adoption and Kinship Worker was concerned that access would likely be inevitable if the Children were adopted by the Applicant. She believed that the Applicant’s home would not be a safe environment for the Children and did not believe that the Applicant would intervene with the Mother.

26The Applicant gave evidence that she first met the Mother in the fall of 2006 when H. was three months old. The Mother was referred by [an agency] because she wanted to provide a safe environment for her children. In 2006, the Applicant was aware that a child had died in the Mother’s care and sometime in 2007, she heard on the radio that she was charged with second degree murder. The Applicant was very surprised that she was charged. She provided support for her and performed the tasks asked of her. She stated that she did not press the Mother about her criminal record since it was not required of her position. From 2006 to 2009, they had an on and off relationship until January of 2009 when she ended the professional relationship so that she could maintain a personal relationship. She stated that she was a [worker] with the utmost respect for the law and would not do anything to jeopardize the court order or the adoption. According to her, she would not cross boundaries.

27Based on the evidence, the Board finds that there is a strong relationship between the Applicant and the Mother. The Applicant, herself, testified to this relationship in which she supported the Mother, assisted her in her personal life, as well as in testimony before the court in the Child Protection Application. The stated intent for her kinship application was to assist [the children] to transition back to the care of the Mother. The Society is justifiably concerned that the Applicant will not enforce the no access order for the Mother and that she is more committed to meeting the needs of the Mother over the needs of the Society and the Children. Though a child died in the care of the Mother, the Applicant was not concerned enough to ask the Mother about how that came to be, but she continued to support her even to the point of testifying on her behalf in the Child Protection Application involving the Mother’s four children.

28Based on the evidence before it, the Board finds that the Applicant has a stronger relationship with the Mother than the Children and that the Society has a valid concern that the Applicant will not be able to maintain the boundaries between the Mother and the Children. This is of particular concern because of the risk the Mother posed to the dead child, as found by the court in the child protection proceedings. The court ordered no access between the Mother and the Children because of concerns of risk. The relationship between the Applicant and the Mother means there is a potential safety concern for the Children. In their best interests, it is not acceptable to take this risk.

The Applicant’s Lack of Co-operation with the Society

29The Board considered as another relevant factor, the question of the alleged lack of cooperation between the Applicant and the Society.

30The Child Protection Supervisor and [ ], the Family Services Worker, gave evidence about an investigation of a referral relating to the oldest daughter of the Mother, who was placed in the home of the Applicant. The daughter had acquired a large amount of alcohol and shared it during a party with other youth. There was a concern of lack of supervision and the Society investigated on behalf of [another society] since jurisdiction is determined by geography. The protection concern was not verified and it was determined that the Applicant responded appropriately. However, during the investigation, the Applicant refused to allow the Society to come into the home to conduct a safety assessment, which is a mandatory part of the investigation. The Society raised the concern that in the event there is an issue involving the Children, the Applicant would not let them into the home.

31The Applicant gave evidence that the [other society] informed her that their agency still had charge of the case and that she did not have to let the Society in. She also stated that the Family Services Worker first indicated that he had to come in, then, said that he could use the homestudy from [the other society] and then called back and said that he couldn’t.

32The Board finds that though there may have been confusing and conflicting messages from the two agencies and the Family Services Worker, the Applicant did not cooperate with the Society and, in the end, did not allow the Society to come into her home to do a safety assessment as required. The Applicant’s behaviour showed an unwillingness to work cooperatively with the Society in the best interests of the child in question.

CONCLUSION

33The Children are in a home that respects their Native culture with two Native children. They are doing well in that home and the foster parents want to adopt the Children. While the Applicant is equally capable of meeting the Children’s cultural needs, and can provide a home with a sibling, the issue is one of safety and stability for the Children. Where there is a legitimate concern that the Children’s safety could be compromised by contact with the Mother, as here, based on the friendship between the Applicant and the Mother and the Mother’s child protection history, that concern outweighs other considerations. The lack of cooperation between the Applicant and the Society when the Mother’s teenage daughter was the subject of an investigation in the Applicant’s home, serves to accentuate the concern about ensuring the safety of the Children. In addition, the Applicant does not have an ongoing relationship with the Children and continuity of care considerations favour the Society’s plan for adoption by the foster parents. For the above reasons, the Board finds that the action that is in the best interests of the Children is that they not be adopted by the Applicant.

DECISION

34The Board confirms the decision of the [society] to refuse the application of T.L. to adopt [the children].

ORDER

35The 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.