S.M. & D.M. v. Family and Children’s Services of the Waterloo Region, 2014 CFSRB 04

CHILD AND FAMILY SERVICES REVIEW BOARD

S.M. & D.M.

v.

Family & Children’s Services of the Waterloo Region

REASONS FOR DECISION

Date: January 23, 2014

Citation: 2014 CFSRB 04

Indexed as: S.M. & D.M. v. Family and Children’s Services of the Waterloo Region (CFSA s.144)

INTRODUCTION

1This is an application made under s. 144 of the Child and Family Services Act, R.S.O. 1990, c.C11, as amended, (the “CFSA”). The Applicants applied to the Child and Family Services Review Board (the Board) for a review of the Society’s refusal of their application to adopt their then [several] month old granddaughter (the Child). The Society refused the adoption application prior to the completion of a homestudy which would be the next stage in the adoption process.

2The issue for the Board is what action is in the best interests of the Child: for the adoption application to proceed to the next stage or not? The Board held a hearing on December 19 and 20, 2013. On December 30, 2013 the Board released the following decision:

1. The Board confirms the Society’s refusal of the Application of [the Applicants] to adopt the child: [ ], born [ ] (the “child”) pursuant to section 144 (11) of the Child and Family Services Act (“Act’)

This decision is based on the evidence and position of the Society that it is committed to having the Applicants exercise an open relationship with the child, as grandparents in her new adoptive home.

BACKGROUND

3The Applicants are the grandparents of the Child, who was born in [ ]. She is one of five children of their daughter (“Child’s Mother”). The Child’s Mother is now in her 20s, was adopted from overseas as a baby and has faced challenges relating to Fetal Alcohol Spectrum Disorder (“FASD”) and attachment issues.

4All of the daughter’s children are crown wards. Three have been placed in the same adoptive home and one in another adoptive home. The adoptive homes have openness arrangements facilitated by the Society that permit the grandparents to have regular contact with their grandchildren.

5When planning for the Child’s birth, the Society looked to the Applicants’ family and the father’s family for plans. The Applicants supported plans involving the paternal grandparents. The Child was apprehended at birth and put in a foster home and the plan with the paternal grandparents never materialized. At court, the Child’s parents put forward a plan. In August of 2013, the Applicant’s other daughter was considering a plan but ultimately, it was the Applicants who put forward a plan to adopt.

6The Society started the homestudy process but before completing the standard SAFE homestudy, the Society determined that it would not support the Applicants’ plan to adopt. The Society provided them with specific reasons for the refusal on November 12, 2013.

7The Applicants filed their application with the Board on November 22, 2013. On December 16, 2013, just prior to the hearing in this matter, the Society moved the Child to a new foster home, with foster parents who were approved to adopt. The Society supported this placement with an openness arrangement with the Applicants as grandparents, as the placement for the Child.

8The Board heard the application on December 19 and 20, 2013.

ANALYSIS

Section 144

9In FCY Services of Muskoka v. D.D., 2010 O.J. No.5085, the Divisional Court described the approach to considering a s. 144 application as follows (at paras 20-22 emphasis in the original):

In this case, the pertinent provision is s. 144(11) of the CFSA, which states: "The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm or rescind the decision under review and shall give written reasons for its decision".

The language of this section expressly requires the Board to make a determination as to what action is in the best interests of the child. If the decision under review is a refusal of an adoption application, the action relates to the entire adoption application process, which involves a number of distinct steps. Although action must be interpreted in the context of the decision under review (adoption application or removal from placement), it gives the Board broad authority to determine what should be done in the child's best interests within the confines of the decision/action under review.

The Board does not have parens patriae jurisdiction to determine best interests in relation to any action. Rather, its determination is confined to the parameters of s. 144. Put simply, the Board must determine whether the adoption application or placement is in the child's best interests having regard to the criteria set out in s. 136(2). If the adoption application or placement is in the child's best interests, the Board will rescind the Society's refusal decision. If it is not, the children's aid society's decision will be confirmed.

10The Board is making a substantive decision, in the best interests of the children. In doing so, the Board is mandated to take into account any of the specifically enumerated best interests’ factors which are relevant. The Board and the parties dealt with the following, relevant best interest considerations:

136(2) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

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

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

3. The child’s cultural background

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

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

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

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

8. Any other relevant circumstance.

11In this case the most significant best interest factors are the Child’s relationships by blood, her secure place in a family and her mental and emotional needs and the appropriate care to meet those needs. Taken together, these and the other best interests factors informed the Board’s decision.

12The Society referred to best interests factors that related more to the Child being placed with a parent than with an adoptive parent (risk if returned to a parent and risk that justified finding the child in need of protection). These factors are from section 37(3) of the CFSA and are usually relied upon by Courts when assessing whether to return children to parents in child protection proceedings. They would only apply to adoptions if they were considered “other relevant circumstances”.

13The Board appreciates that the conduct of the parents could be relevant to a family adoption plan, however in this case, the Board does not need to address the relevance as it has confirmed the Society’s decision on other grounds. The Board does address briefly, the role of the Child’s Mother in the plan.

Reasons for Refusal

14The Society’s reasons for refusing the adoption application as set out in their refusal letter and as presented at the hearing can be summarized as follows:

1. Concerns about the Applicants’ and in particular, the Applicant grandfather’s commitment to adoption; the Applicant grandfather would prefer to be a grandparent and not a parent as evidenced in part by the lateness of the Applicants’ putting in a request to adopt and their failure to put forward a plan for the other children.

2. The Applicants do not fully understand their daughter’s limitations and put forward a plan that she live with them and the child;

3. Their energy is directed towards supporting their daughter

4. The Applicants’ past history with their daughter including allegations of conflict and failure to follow through on supports.

5. The Applicants’ ages and health concerns which in the past, have prevented them from putting forward adoption plans for the other children

Level of Commitment to Parenting versus Grand parenting

15The Board’s decision is based on the first concern: the Applicants’ level of commitment to an adoption plan. As such, the Board will address this issue first and then briefly address the other issues.

16The commitment of a family to an adoption engages the best interests criteria relating to their meeting of the child’s emotional needs and to the child’s sense of a placement as part of a family. Since the plan is put forward by the grandparents, family members, it also engages the Child’s relationship to her birth family.

17The Applicants have relationships with their four other grandchildren, as grandparents. They see them regularly. They are particularly happy with their relationship with the family that adopted the three oldest children. If that family had been available to adopt the Child, they would have supported that plan. They have not had as much time to test the openness situation with the family for the fourth child. Both adoptive families also have an open relationship with the Child’s Mother.

18The Applicant grandmother attended a meeting before the birth of the Child in December of 2012. At that meeting, the paternal grandparents put forward a plan. The Child’s worker testified that he expressed some concerns about the plan at the meeting in front of the grandmother. She denies knowledge of any concerns and testified that such concerns were not her business. The Child’s worker asked her if there were any options for plans from her side of the family and his undisputed evidence is that she responded: that she was not aware of any; her adult children had their own lives and were reluctant to become involved; she saw herself as a support in the care of the Child but not as taking on the full responsibility. At the meeting, the Applicant grandmother supported the plan of the paternal grandparents. There was also some discussion of the Child’s parents wanting to live with the paternal grandparents and parent the Child, which the Child’s worker advised he would look in to.

19The next meeting to plan for the care of the Child was on January 22, 2013. Neither Applicant attended. The paternal grandparents and the parents attended.

20The Society made a decision not to support the plan of the paternal grandparents and told the Child’s parents this on January 31, 2013. They also told them that the Child would be apprehended at birth. The Child’s worker testified that he believed he told the Applicants by way of a voice mail message that he was not supporting the paternal grandparents’ plan and that the Child would be apprehended at birth. The Applicant grandmother testified that she was only told about the apprehension and not about the refusal of the paternal grandparents’ plan. She testified that she had specifically asked to be notified if the Child was going to be apprehended at birth to avoid the situation and upset that had occurred when the fourth child was apprehended at birth. The Child’s worker also testified that they completed the kin assessment and that new concerns about the paternal grandparents arose in the spring and summer of 2013, which “cemented” the Society’s position. It appears that there is some ambiguity as to when the Society made its final decision about the paternal grandparents. The Child’s worker was not certain and had no case notes to support his belief that he told the Applicant grandparents in the January of 2013 voice mail that the Society did not support the paternal grandparents’ plan.

21However, this does not materially change the situation. The Child was apprehended at birth and placed in a foster home. The Applicants had contact with her. The Applicant grandmother saw her often, approximately twice a week, and the Applicant grandfather saw her less regularly.

22The child protection proceedings proceeded with no formal plan being put forward by the paternal grandparents and the parents putting forward a plan.

23On August 14, 2013, just prior to a scheduled motion on summary judgment in the child protection proceedings, the Applicant grandmother approached the Child’s worker and told him that one of her two older daughters might want to adopt the Child. He provided her with the forms. On approximately August 22, 2013, she advised him that her older daughter would not be putting forward a plan but that she wanted to adopt the Child. He advised her to use the same forms. She filled out the forms with her information and then re-submitted them with the information of both she and the grandfather, albeit signed by her alone. The form was submitted on August 26, 2013 and is called: Foster, Adopt or Kin Application Form.

24The Homestudy worker started the homestudy which included interviews with both Applicants. The Applicant grandmother told her that she had a very close bond with the Child and that there is something very special about her. The Applicant grandmother testified that they love the Child and have a relationship with her. This is not disputed; however the Applicant grandfather has not had as much contact as has the grandmother. The Applicant grandmother has seen the Child approximately twice a week; the Child has been to the Applicants’ home for four visits and they have visited her at the foster home and the Applicant grandmother has seen the Child briefly after the Child’s Mother’s visits. The Homestudy worker felt that the reasons for the adoption plan were emotional and not practical. The Applicant grandmother testified that “of course” it was emotional because they love the Child but that they understand that it is challenging to parent a young Child.

25The evidence of both Applicants was that they did not put forward a plan at first because of the paternal grandparents’ plan. However, when that plan did not come to be and the Child was placed in foster care after her birth, the Applicants did not follow up with the Society as to whether or not that plan was going ahead. They were content to leave her in foster care. The Applicant grandmother’s evidence was that she supported first the paternal grandparents’ plan, then her older daughter’s plan; further, had the adoptive family of the three children been available, she would have supported that plan. She testified that these plans were not preferable to hers but because there was openness, she was accepting of them.

26The Applicant grandfather’s evidence before the Board was that he supported first the paternal grandparents’ plan; that his daughter also had a plan and that had either of those been acceptable to the court or the Society, it was “okay with us”. Then, while the Child was in foster care, they did not need to put forward a plan because his older daughter was putting forward a plan. When the wheels were put in motion for that plan, it was his preference at that time and he was “fine” being a grandfather to the Child and doing grandfather things. He also would have supported a plan by the adoptive family of the three children and would not have put forward a plan had they come forward. His primary concern is openness and he agreed that from the Child’s perspective, openness with them is “very important” when compared to them caregiving for her into adulthood. However, he testified that he “supported” his wife 100% in terms of being the Child’s primary care giver. Both Applicants had concerns about how openness would go given that the fourth child was in a new adoptive home and they had not had the experience to determine whether it would go well that they had with the other adoptive family.

27Up until three or four days before the hearing, the Society had no formal alternative plan for the Child. The question of the commitment to openness by an unknown adoptive family was itself an unknown quantity. The Board questions the Society moving the Child into the home which was clearly a foster home with a view to adopt. Although this may not be technically contrary to the legislation, it goes against the spirit of the legislation in not preserving the status quo until the conclusion of the Board’s proceedings. It would have been sufficient for them to provide evidence about the family without moving the Child. The Board placed no weight on the move itself.

28The Board did place weight on the Adoption worker’s evidence that:

• The Society is committed to openness in principle and for the Applicants

• The Society would not have selected the proposed adoptive parents for the Child if they were not committed to openness and they ruled out other applicants who were not committed to openness.

29According to the Adoption worker, the prospective adoptive parents were told about the large family and the expectation that there be openness with the grandparents, the parents and the siblings. They made a commitment to the Society to extend the openness requested, including with the Applicants.

30Further, the Society is well aware of and supports the level of openness that the Applicants have with their three older grandchildren and it placed the fourth child in a home on the basis of the parents’ agreement to openness with the Applicants.

31The Applicants either actively or passively supported the plans of others until August of 2013. They were satisfied with the plans of the paternal grandparents. After the Child was apprehended, they did not follow up and put forward a plan. As time passed and the Child was not placed with the paternal grandparents, they did not come forward even though they knew that the Child was still in foster care. They would have been satisfied with the Child being placed with the three oldest children because they know that family would be open to them as grandparents, based on experience. That home was not available and neither was the home of the fourth child. Just before the Court was going to make its decision on crown wardship, the Applicant grandmother proposed her oldest daughter to adopt. It was only when that and all else had fallen through that the Applicants applied to adopt.

32The Society relied on the Applicants’ position about not adopting the other children as part of its case. Their evidence was that the Applicants did not put forward a plan for the other children and cited health concerns and age. The grandmother testified that things had changed. The Board heard evidence about improvements in the health of both Applicants. Further, the Applicant grandmother is now retired and works part time but is available to stay home. The Board accepts that from the Applicants’ perspective, their day to day health and circumstances had changed, making the Applicant grandmother more able to care for a child. The Applicant grandfather will retire in two to three years, giving him more time. That being said, the health and job-related changes were in place while planning for the Child was ongoing and while she was in foster care and the Applicants did not come forward with a plan to adopt the Child.

33The Board is satisfied, based on the Applicants’ own testimony, that their commitment to being grandparents is stronger than their commitment to parenting the Child. Their predominant concern is to ensure family contact. This is so important to them that when faced with uncertainty, they put forward a plan to ensure that their relationship was preserved. The testimony of the society witnesses reinforces the Applicants’ own admissions in this regard.

34The Society’s position to this Board in a formal legal proceeding and its evidence is that it is committed to openness for the Applicants with the Child in her new adoptive home, as grandparents. The Board has no evidence before it to suggest that the Society will change its position or that it will not do what is needed to ensure that the expected level of openness occurs. The new adoptive family will be on adoption probation and if openness with the Applicants is a condition of the placement, the Society has the power to withdraw its support of the placement if the family does not follow through.

35For these reasons, the Board confirms the Society’s decision.

Relationship with the Child’s Mother

36The Society relied on the Applicants’ past history and their relationship with the Child’s Mother as a reason to refuse the adoption application. At the hearing, the Applicants clarified that their adoption plan no longer included the Child and her Mother living with them. They would be the parents and the Child’s Mother would have a relationship with the Child, under supervision. This might change “far down the road”. The Applicant grandmother was able to describe the Child’s Mother’s limitations for the Board and link them to her parenting, in a manner consistent with the documented concerns.

37For the Board, these limitations are only relevant to the extent that the daughter is part of the plan. The Applicants’ adoption plan would now include the Child’s Mother as only having visits and not in any parenting role.

38There was no evidence before the Board from either the Society or the Applicants of the Child’s Mother trying to take on more of a parenting role or of any significant problems with the openness arrangements or visits with the Child. The Board is not satisfied on the evidence before it that the Child’s Mother would have boundary issues with the visiting arrangements. The Homestudy worker had not met the Child’s Mother. Although she testified that it is unusual for this to occur, in a grandparent adoption situation, it may have been prudent to more fully assess the issue of boundaries.

39The Applicants had challenges with the Child’s Mother starting in grade 8. She often ran away from home and abused drugs and alcohol.

40The evidence of the Intake worker and the Adolescent Unit worker was that the Applicants would call in times of crisis but would not follow through with supports.

The Applicant grandmother testified that she had access to supports outside of the Society through her work. She did acknowledge that the Applicants did decline or resist services when they thought things were going better at home.

41As a teen, the Child’s Mother made allegations of physical and verbal abuse against the Applicants. These were never verified by the Society and the Applicants denied them at the hearing. The Board did not place weight on these allegations.

42The Board does have concerns about the conflict between the Applicants and their daughter to the extent that when faced with crisis, the Applicants wanted her out of their home including when she was 14 years of age. This was not disputed. This led to offers of ongoing service because of the risk of the Child’s Mother being separated from the family.

43On cross examination, the Applicant grandmother agreed that the Applicants were overwhelmed by the Child’s Mother’s behaviour and that it was easier to contemplate her living elsewhere than to work on the issues as part of the family.

44While adopting a child with special needs is challenging, the level of commitment needed is extremely high as noted by the Homestudy worker. Adoptive parents require a high level of skill and commitment to meet the child’s needs. The Applicants had a hard time managing that commitment for their daughter, the Child’s Mother. In fairness to them, they have weathered this and now have an ongoing relationship in which they provide support but set boundaries.

45The Child has shown some mild developmental delay and has been referred to the Infant Development Program. It is not clear whether she was exposed to alcohol or drugs pre-natally but, given her mother’s history, there is a risk. Otherwise, the Child is described as happy and “adorable”.

46The Board considered the Applicants’ struggles with wanting their daughter out of the home, in assessing their ability to provide long term committed parenting to the Child. The Board has some concerns about the Applicants’ ability to meet the needs of the Child as a teenager.

47However, had this been the only consideration, the Board would have ordered the completion of the homestudy to explore this concern more fully, including with respect to whether or not the Child was exposed pre-natally to drugs and alcohol, her needs looking forward and the Applicants’ current coping strategies and supports.

CONCLUSION

48In conclusion, the Applicants and particularly the grandfather want to be grandparents to the Child. Their actions demonstrated that this was their preferred role. The evidence supports this conclusion on the balance of probabilities. It is in the best interests of the Child to be placed in a home where the parents want to parent. This is a full time and long term commitment. The importance of the Child’s relationship with her family, including continuity of care, is served by the Child continuing to see her grandparents, as her grandparents.

49The Society has committed itself to this course of action.

50Therefore, the Board has confirmed the Society’s refusal of the Applicants’ application to adopt their granddaughter.

ORDERS

51On December 30, 2013 the Board ordered:

1. The Board confirms the Society’s refusal of the Application of [ ] to adopt the child: [ ], [ ] (the “Child”) pursuant to section 144 (11) of the Child and Family Services Act (“Act’)

This decision is based on the evidence and position of the Society that it is committed to having the Applicants exercise an open relationship with the child, as grandparents in her new adoptive home.

CONFIDENTIALITY ORDER

52Pursuant to Rules 30.1 and 30.2 of the Board's Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board's proceedings.

53The Board will permit the use of its decision and these reasons in any adoption proceedings involving the Child, but only if there is an issue as to the role of the Applicants.

SHEENA SCOTT

Sheena Scott

Presiding Member

ALINA LAZOR

_____________________ Alina Lazor

Member