Applicants v. Highland Shores Children’s Aid Society, 2014 CFSRB 52

CHILD AND FAMILY SERVICES REVIEW BOARD

Applicants v. Highland Shores Children’s Aid Society

REASONS FOR DECISION

Date: September 18, 2014

Citation: 2014 CFSRB 52

Indexed as: Applicants v. Highland Shores Children’s Aid Society (CFSA s.61)

INTRODUCTION

1The Applicants want their 11 year old foster son returned to their care. He has lived with them since birth. He is on the autism spectrum and faces other challenges. The Applicants asked to have him removed from their home at a time of crisis but then changed their minds. He has since been placed in a[n] [Agency] (foster) home. The Applicants brought an application for his return but the Society’s position is that since it was the Applicants who requested the child’s removal, s. 61 of the Child and Family Services Act, R.S.O. 1990, c. C.11 as amended (the “Act”) does not apply.

2First, the Board had to decide whether it had jurisdiction to hear the Application under s. 61 of the Act. The questions for the Board include whether the Society made a decision to remove the child and if so, is the application barred by the statutory time line. The Board heard a full day of evidence on jurisdiction on June 16, 2014.

3The Board determined that it has authority to proceed with the Application under s. 61 of the Act and did so. The Society’s motion challenging jurisdiction was dismissed.

4Second, the Board had to decide on the merits under s. 61 (8.6), what action was in the best interests of the child: to be returned to the foster care of the Applicants, or not. The Board heard evidence relating to the merits on June 16, July, 16, July 18 and August 6 and 7, 2014.

5On August 13, 2014, the Board released its decision that it was in the child’s best interests to be returned to the Applicants’ foster care with supports and ordered the child returned to the Applicants’ foster care on November 1, 2014.

6The reasons for these decisions follow. When referring to “respite” in this decision, the Board is referring to periods of time that the children and foster parents stay in separate locations, usually weekends. When referring to “relief”, the Board is referring to support in the home or for short periods of time in the community to allow foster parents some “down time”. These terms were used interchangeably in the hearing but ultimately clarified to some extent and the Board appreciates that not all witnesses used consistent terms.

BACKGROUND

7The child is 11 years of age and was placed with the Applicants when he was a few days old. He has been a part of their family since then. He has autism,[ ] ADHD [and] some developmental delays. There are concerns that he may have a seizure disorder and a [mental health] disorder. He sleeps poorly and the Applicants have been asking for respite for some time. The Society tried to get local respite care but had little success. The child’s behavior started to escalate in approximately 2012. The child spent several months in [City A] from May to October 2012, in the hopes that he would get an assessment and medical care. This did not materialize and he returned to his foster home with the Applicants. In the months leading up to January 9, 2014, the child started displaying more aggression in the nature of death threats to family members; he hit a Society Worker and spat at one. He has always had “meltdowns” but he has also had positive times. The Applicants and the Society viewed the Applicants as the long term plan for placement for the child. They would be the home base. The Applicants have an autistic son and recognized that at some point, as he grew older, a transition to outside care might be appropriate for the child. There is a dispute about whether that was anticipated when he was an adult, or sooner. There is no dispute that the Applicants have remained committed to the child being part of their family and to meeting his needs.

8On January 9, 2014, the Applicants had a particularly bad day with the child and told the Society they wanted him removed from their care. He was removed that night. The Applicants say they changed their minds immediately but the Society does not agree. There was a series of contacts between the Applicants and the Society including conversations on January 9 and February 10 which are in dispute. Ultimately on May 18, 2014, the Applicants made it clear they wanted the child returned to their care and they put it in writing on May 21, 2014. They requested a meeting which was held on May 28, 2014. They again asked for the Child’s return and were refused. They filed their application with the Board on April 12, 2014.

9The parties entered into mediation through the Board but did not resolve the matter.

ANALYSIS

JURISDICTION

10The Board had to decide whether the Society made a decision to remove the child as contemplated by s. 61 of the Act and whether the application was out of time.

11In this case, the Society’s position is that the Applicants made the decision and not the Society and thus in effect, there is no removal to review. They submit that s. 61 was not engaged and that they had no obligation to provide notice of a proposed removal. Even if they made a decision in March of 2014, the application to the Board is too late. They drew the Board’s attention to the importance of the time limit for s. 61 Applications in the interests of permanency for children.

12The OCL originally did not take a position on jurisdiction. However, after hearing the evidence, her position was that the Application should proceed to allow the Applicants the opportunity to present their case to see if they could provide an appropriate placement that would meet the child’s best interests.

13The Applicants are self- represented and submit the application should proceed because they wanted the child back and feel that although they made the initial request, it was the Society that ultimately made the decision to remove the child permanently.

14The Board has determined that the Society made a decision to remove the child on January 9, 2014. The proposed removal was carried out on January 9, 2014 and no written notice was given to the Applicants. The Applicants eventually explicitly asked the Society to return the child to their care and on March 28, after a meeting, the Society communicated verbally that it would not do so. The Society never sent out a notice regarding the removal.

15The Divisional Court has held that the time for a foster parent to seek a review does not start to run until a proper notice is given under s. 61(7) (Children's Aid Society of Dufferin County v. S.A., 2007 25654 (ON SC)). Since there was never a written notice given, this disposes of the Society’s argument that the Application is out of time.

16Section 61 of the Act is found in the section of the Act entitled “Society and Crown Wardship”. Section 61 (1) is entitled “placement of wards” and s. 61 (2), entitled “placement”, mandates the Society to choose a residential placement for the child that represents the least restrictive alternative and takes into account other factors. Section 61 (5) sets out the rights of the child, parent and the foster parent in terms of placement. It provides in part that:

61(5) The society having care of a child shall ensure that,

(b) the wishes of any parent, who is entitled to access to the child and, where the child is a Crown ward, any foster parent with whom the child has lived continuously for two years are taken into account in the society’s major decisions concerning the child.

This is followed by section 61 (6) of the Act, under the heading “Change of Placement” and the provisions that set out the review process, as follows:

Change of placement

(6) The society having care of a child may remove the child from a foster home or other residential placement where, in the opinion of a Director or local director, it is in the child’s best interests to do so. R.S.O. 1990, c. C.11, s. 61 (6).

Notice of proposed removal

(7) If a child is a Crown ward and has lived continuously with a foster parent for two years and a society proposes to remove the child from the foster parent under subsection (6), the society shall,

(a) give the foster parent at least 10 days notice in writing of the proposed removal and of the foster parent’s right to apply for a review under subsection (7.1); and

(b) if the child is an Indian or native person,

(i) give at least 10 days notice in writing of the proposed removal to a representative chosen by the child’s band or native community, and

(ii) after the notice is given, consult with representatives chosen by the band or community relating to the plan for the care of the child. 2006, c. 5, s. 19 (2).

Application for review

(7.1) A foster parent who receives a notice under clause (7) (a) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the proposed removal. 2006, c. 5, s. 19 (2).

Board hearing

(8) Upon receipt of an application by a foster parent for a review of a proposed removal, the Board shall hold a hearing under this section. 2006, c. 5, s. 19 (2).

Where child is Indian or native person

(8.1) Upon receipt of an application for review of a proposed removal of a child who is an Indian or native person, the Board shall give a representative chosen by the child’s band or native community notice of receipt of the application and of the date of the hearing. 2006, c. 5, s. 19 (2).

Practices and procedures

(8.2) The Statutory Powers Procedure Act applies to a hearing under this section and the Board shall comply with such additional practices and procedures as may be prescribed. 2006, c. 5, s. 19 (2).

Composition of Board

(8.3) At a hearing under this section, the Board shall be composed of members with the prescribed qualifications and prescribed experience. 2006, c. 5, s. 19 (2).

Parties

(8.4) The following persons are parties to a hearing under this section:

1. The applicant.

2. The society.

3. If the child is an Indian or a native person, a representative chosen by the child’s band or native community.

4. Any person that the Board adds under subsection (8.5). 2006, c. 5, s. 19 (2).

Additional parties

(8.5) The Board may add a person as a party to a review if, in the Board’s opinion, it is necessary to do so in order to decide all the issues in the review. 2006, c. 5, s. 19 (2).

Board decision

(8.6) The Board shall, in accordance with its determination of 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 proposed removal, and shall give written reasons for its decision. 2006, c. 5, s. 19 (2).

No removal before decision

(8.7) Subject to subsection (9), the society shall not carry out the proposed removal of the child unless,

(a) the time for applying for a review of the proposed removal under subsection (7.1) has expired and an application is not made; or

(b) if an application for a review of the proposed removal is made under subsection (7.1), the Board has confirmed the proposed removal under subsection (8.6). 2006, c. 5, s. 19 (2).

Where child at risk

(9) A society may remove the child from the foster home before the expiry of the time for applying for a review under subsection (7.1) or at any time after the application for a review is made if, in the opinion of a local director, there would be a risk that the child is likely to suffer harm during the time necessary for a review by the Board. 2006, c. 5, s. 19 (3).

Review of certain placements

(10) Sections 34, 35 and 36 (review by Residential Placement Advisory Committee, further review by Children’s Services Review Board) of Part II (Voluntary Access to Services) apply to a residential placement made by a society. R.S.O. 1990, c. C.11, s. 61 (10).

17The rights of foster parents to a review are not premised on the foster parents disagreeing with the Society’s change of placement. The notice and review provisions are neutral. There is no language in the provision that would suggest that the Society does not need to give notice where a foster parent agrees with or requests that a child be removed; or that the right to a review is not available to foster parents who agree with the decision at the time it is made. Had the legislature intended that the notice and review provisions not apply in cases where the foster parent consents to or requests the removal, the legislation would contain a specific exemption; it does not.

18The provision applies only to foster parents with whom a crown ward has lived continuously for two years. This is the same group that is entitled to have their wishes considered in placement changes (s.61(5) of the Act). This represents an acknowledgment of the importance of the relationship between a child and his or her long term foster parents.

19Section 61 mandates that subject to risk, children are not to be removed prior to the expiry of the ten day notice period. It allows time for foster parents to consider the decision and to decide whether or not they wish to put forward a plan to keep the child, moving forward. This protects the interests of children who have relationships with their foster parents. It also protects the interests of foster parents with a long term relationship with the child, to seek to maintain the placement and to have it reviewed by an independent body, in the child’s best interests. The provision anticipates that a foster parent may make a decision upon receiving notice that differs from the wishes they expressed to the society when the decision was made. While the Society must, under s. 61 (5) (b) consider the wishes of foster parents, there is nothing that gives the foster parent, as opposed to the Society, the authority to make a decision about a removal. Where a foster parent will not continue to look after a child, those wishes may be determinative of a society’s decision, but it is still the society’s decision and notice is required by the unqualified language of s. 61 (7).

20The Board heard a full day of evidence relating to jurisdiction. The evidence focussed on the Applicants’ request for the removal and on when they expressed to the Society that they had changed their minds and wanted the child in their care. Because the Board has interpreted the legislation to mandate notice regardless of whose idea the move was, the Board has decided that much of this evidence was not relevant to jurisdiction per se. However, it is contextual information, going to the parties’ positions on jurisdiction. Further, the parties agreed that this evidence could also be used on the merits of the application.

21The foster father’s evidence was that he had called the Child’s Worker for guidance about the child not attending school on the morning of January 9, 2014 but the Child’s Worker had responded “what do you expect me to do”. She did not deny talking about the child being out of school and did not address the alleged comment in her evidence. The foster father made a decision which he says was in a moment of frustration, that the child needed to move. The Applicant foster mother called the Society and asked that the child be removed from their care.

22The Child’s Worker testified that when she got the call, she understood the request to be for permanent removal because the Applicants could not handle the child’s behaviour. When asked by the Board if the Society made a decision at that time, she responded that she went to her supervisor and they had decided that they would move ahead with the removal because they felt it was a matter of “when” and not “if”. She asked the Resource Worker to find an emergency placement. The Society had had ongoing conversations with the Applicants about the child’s increasing needs and the concern that the Applicants might not be able to manage those needs at some point. In 2012, the Applicants had asked for the child to be removed, this was done and the child returned to the Applicants’ foster care after 5 months at a group home in [City A]. The position of the Society in this application, as reinforced by its witnesses on the jurisdiction motion, was that on January 9, 2014, the Applicants’ could no longer handle the child in their home and re-placement was in his best interests.

23The Board heard evidence from the foster father that he changed his mind that day and told the Child’s Worker in the hallway at the Society. She agreed that he may have said words to the effect of “I made a mistake, let’s meet and work it out” but she does not recall. The Board heard her evidence that she did not take his comments about regret to mean he had changed his mind. She told him words to the effect that “the wheels were already in motion”, “your request has been granted”. She testified that she wanted to show him her support and take the pressure off of him by saying she would take care of things. She has no notes of the conversation. He interpreted her comments as the Society having made a decision and taking it out of the Applicants’ hands. The Society carried out the removal that evening. The child was put into a temporary placement at a group home. The foster home was put on hold.

24The Board heard further evidence about a conversation with the Child’s Worker on February 10, 2014 in which the Applicant made a request to have the child returned and the worker said she would tell her supervisor. The Board heard that there were several conversations between the Applicants and the Resource Worker after the removal in which they did not say they wanted the child back. The Board also heard evidence about the Applicants’ request to meet the Child’s Worker in their home on March 18, 2014 and their clear request for the child to be returned that they confirmed in an email dated March 21, 2014. March 18 was the day after the post placement interview document, which is an overview of the placement, was read to the foster father on the phone. The post placement interview document to wrap up the placement is usually done in person, within 14 days of the child’s move. The Society did not follow its usual process and waited two months. The Society and the Applicants met at the Applicants’ request to discuss their desire to have the child back, on May 28, 2014. The Society did not change its decision and the minutes indicate that they told the Applicants that the removal in January met the child’s needs.

25The relevant evidence from this information, going to whether the Society made a decision is this: following the Applicants’ request to have the child removed, representing the foster parents’ wishes, the worker went to her supervisor and the Society made a decision to move ahead with the removal because it was a question of when and not if this would happen. The Society felt that this removal met the child’s needs at the time and the Society carried out the proposed removal. The Board notes that the Society and not the Applicants are the legal guardians for the child and it is the Society that has the legislated authority to make a placement change, after considering the wishes of foster parents, where required, as here. Therefore, the Board concludes that on January 9, 2014, the Society made a decision to remove the child, within the meaning of the Act.

26The information about the Applicants’ changing wishes and their communication with the Society in the intervening months is relevant not to whether the Society made a decision, but rather to the importance of the notice provisions under s. 61 and the need for clear communication by the Society of its decisions. That a foster parent may have conflicting feelings about a long term placement is understandable. The notice provision provides a clear means of giving a foster parent a definitive decision and time to consider whether they will challenge that decision—even if that decision mirrors their wishes. In this case, notice would have served to end any confusion or ambiguity between the parties. It would have made it clear to the Applicants that despite what had happened before with the child having been returned to their care from [City A], this was a final decision. It would have given the Applicants a deadline by which to challenge the decision or not, and would have served the child’s interests by moving the process forward to finality quickly-one way or another.

27The OCL wondered why, after an 11 year placement, the Society did not do more to salvage the placement. They did not seek out a forum in which the parties could discuss options until it was requested of them formally by the Applicants. They had made their decision, based on the Applicants’ wishes as expressed the morning of January 9 and their assessment of the child’s needs. They did not actively open the door to re-visiting the decision. Again, given the length of the relationship, had they provided notice, the discussion that took place in March, may have happened earlier. Had the Society followed the legislation, they would have been unable to remove and replace the child “permanently” but they could have placed the child for crisis respite, consistent with the Applicants’ wishes. Again, after the ten day application period, they could have proceeded to make permanent plans without fear of disrupting the child’s placement further. The Society’s failure to recognize its role as the legal guardian with the sole legal authority to decide to move a child and its failure to recognize the unqualified obligation to provide notice of a proposed removal, contributed to the confusion as between the parties and to delay. The Society was doing what it felt was best for the child and respected the immediate wishes expressed by the Applicants but it did not follow the mandatory process under s. 61, which give[s] longer term foster parents a right to seek a review or accept the removal, within 10 days.

28Having determined that the Society made a decision to remove the child, the Board proceeded to hear the application on the merits.

MERITS

29In an application under s. 61, the Board must make a substantive decision as to which action is in the child’s best interests. Was it in the child’s best interests that he return to the Applicants’ foster care or was the plan currently being carried out by the Society in his best interests?

30This case was very much about resources – or rather, the lack thereof for respite and relief for the Applicants. The role of other supports for the child in school and generally is also relevant to the child’s needs and the events leading to the child’s removal. The Applicants’ position was that with the proper supports, they could and would sustain the child’s placement because he is their son. This was also the position they expressed in the post placement interview document and at the March 28 meeting.

31The Society’s position was that the Applicants can no longer manage the child who is moving into adolescence as he has and will have increasing needs. Further, the Society does not have access to the respite and relief needed for this child, for its own foster homes. Thus, a return to the care of the Applicants will not change the situation for the Applicants.

32The position of the OCL is that but for the resource issue, the child should have been returned to the care of the Applicants. It is her position that the Society did not address the child’s attachment needs and that they did not take steps at the crucial time to try and save the placement. However, with the passage of time and given the lack of local resources, it is the OCL’s position that the child should remain in his current placement. The child’s views and wishes have evolved to the point where he states he wants to stay where he is and have respite with his “mom and dad” (the Applicants), but he is still confused.

33In making its decision that the child should be returned to the foster care of the Applicants, with supports, the Board considered and weighed the following relevant best interests factors as mandated by and found in s. 37(3) of the Act:

1. The child’s physical, mental and emotional needs, and the appropriate care and treatment for 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 importance of continuity of care and the possible effect on the child of disruption of that continuity.

6. The child’s views and wishes, if they can be reasonably ascertained.

First Nations’ Culture

34The child has a [First Nations’] background, including a paternal grandfather who was a Chief. On March 29, 2011, the Society explored whether the child had status and heard back from Indian Affairs on April 13, 2011 that he is not eligible for registration. The Society has not involved the [the First Nation] in any planning for the child. The Board considers the child’s First Nations’ background regardless of whether the child is eligible to have or has status. The child’s culture is one of the mandated best interest factors. The Board must consider whether the Applicants can meet the child’s needs relating to his [First Nation] heritage and culture. The Society does not contest that they can. The Child’s Worker testified that the foster father is active on the local Reserve and that the Applicants have exposed the child to his [First Nation] culture. The foster father confirmed that this is the case. Since this factor is not disputed, the Board will not address it further.

The Child’s physical, mental and emotional needs and appropriate care/treatment to meet those needs and his level of physical, mental and emotional development.

35The crux of the Society’s case is that the Applicants can no longer meet the child’s needs because they have and will increase into adolescence. They did not call any clinical evidence and no one has assessed the child in terms of whether and how his needs will change or what is needed to meet his current emotional needs. The Society was clear to emphasize through its witnesses that all autistic children are different.

36The Applicants’ position is that, with the supports that the child is getting in his current [Agency] foster home, consistent with the supports they have asked for in the past, they can meet all of the child’s needs. No one disputed that whoever cared for the child would require such supports. The Board had to determine whether the Applicants were able to meet the child’s needs and what those needs entailed in terms of supports. The Board looked at the Applicants’ past care of the child and their demonstrated ability to learn new skills. The Board also looked at what supports are available now or could be made available to the Applicants, that weren’t available when the child was removed. The Board determined that the Applicants are able to meet all of the child’s physical, mental and emotional needs, taking into account his stage of development.

37There is no dispute that the Applicants are exemplary foster parents and that they met the child’s needs as he grew, up to the time leading to his stay in [City A] in 2012. The undisputed evidence was that it was the Applicants who identified the child’s special needs and ensured he received a diagnosis and care from relevant professionals. They were part of all of the milestones in his life. The child was born with stiffness and required medical care from birth.

38The Child’s Worker agrees that the Applicants took the lead in seeking out professional help for the child. He had tantrums as a baby, did not like to be held or cuddled and had very little eye contact. According to the Child’s Worker, it wasn’t a natural thing for him to hug but eventually he sought hugs from the applicants and sat on their laps.

39The Applicants were behind the child being diagnosed with autism and ADHD at about age two and a half. They applied for the Intensive Behavioural Intervention (IBI) program and did that for several years, in their home with the child. It is specialized behavioural supports for children with autism and their families. They were involved approximately 15 hours a week until he was 6 or 7. According to the Child’s Worker, the child exceeded the expectations of the IBI program.

40The child lost his ability to speak for almost two years. The foster mother described how she learned sign language and then, on professional advice, the Applicants worked with the child under a specific program to gain his speech back, successfully. They attended speech therapy weekly and applied the skills in the home.

41The Applicants worked with a paediatrician with experience in autism that had worked with their older son. They put the child in the infant development program, arranged a sensory evaluation and physiotherapy. They arranged for occupational therapy for behavioural and sensory issues and did the work needed in the home and with the school. The Applicants received some assistance from a local counselling services agency. When the child’s behaviour started to deteriorate prior to May of 2012, there was no clinician in place and the hope was that when placed in [City A], he would get treatment through the children’s hospital in [City A]. This never materialized. The Applicants had sought out the [Centre] in [City B] as a resource and had also arranged for the child to be put on the waiting list at [a Childrens’ Resource in [City B] for clinical supports. The referral to [Childrens’ Resource] came through in the fall of 2012 and this new resource was part of the reason the child was returned to the Applicants’ care. Last spring, the child told the Applicants he started hearing voices, telling him to hurt people. The Applicants called the paediatrician.

42The child had access to a medical team at [the Childrens’ Resource]. At that point, the push was on to find more local resources and the parties sought help from the dual diagnosis program in [City C]. According to the Child’s Worker, this program met two or three times to do a file review but was not particularly helpful. This provided some supports but no doctor was on board until January 2013, after the child had moved. Since his move, that program meets once a month and has clinical supports for the child. Prior to his move, the child had several medication changes in November of 2012. This encompassed the time his aggression was increasing. The foster mother was concerned that some behaviours may have been linked to medications. She saw how certain medications meant to calm him, made him more aggressive. The Child’s Worker agreed that one sleep medication did appear to make him more aggressive and that it was possible that medication changes could have escalated his behaviours in the Applicants’ home. The Board did not hear directly from any medical professionals, to rule out this concern. Following the child’s move, the dual diagnosis program started the process of a medication review but no changes have been made to date, according to the Child’s Worker. The questions of the impact of medications and of whether the child has a [mental] and/or seizure disorder are significant, yet are outstanding. The child has not yet been assessed to see if he has a [mental] or seizure disorder but the doctors are involved in decision-making about when this would happen. The Society did not call any of the doctors or the occupational therapist as witnesses in this proceeding to address the child’s current needs and his needs moving forward.

43In terms of his medical issues, the child had trouble walking and wasn’t comfortable with his feet off the ground. The Applicants worked with him on this. The foster father made boards of various heights to help him overcome his feelings. The child had surgery to release his heel. The foster mother described the work the Applicants did with the child to prepare him for this surgery by acting things out and going over the process in advance. The child must wear special braces and the Applicants have consistently been attentive to this need.

44The child has needed pull ups for soiling, on and off for years. The Child’s Worker agreed that the child had gone for up to two years without issue[s] with soiling in the Applicant’s home.

45According to the foster father, the child has always had some aggression that has come and gone and he could go several months without aggression. The foster father was able to describe in detail what types of things might trigger aggression such as when the child hit the Youth Worker and spat at the worker. He testified that more recently, he was less attentive to triggers and that he would work on this skill to improve caregiving for the child.

46Starting in 2012, the child started displaying more aggression. This led to the placement in [City A] at a group home [“Group Home”]. Unfortunately, the anticipated treatment did not materialize in [City A] and the child was returned to the Applicants care without further treatment. What was new was that [the Group Home] had managed some of the child’s behaviours using restraints. Also new was a plan put forward by the Applicants that their niece would help with tutoring and that the foster mother’s mother (“grandmother”)would provide relief in the home (she would come into the home to permit the Applicants to rest or do errands etc). The Society also provided child and youth workers for some relief in the home. The foster father took the de-escalation training that also permits him to use restraints; however, he has not used restraints. He has blocked the child. His typical way of de-escalating the situation is: to put the child in an area where he cannot harm himself and talk to him calmly to de-escalate. It takes time. After the child has had an episode, he sometimes doesn’t remember what he has done. If possible, the foster father tries to get the child to identify why he was upset but sometimes he cannot: he doesn’t push this as he believes he sometimes does not remember. He does not consequence him for behaviours, except that day and if the child remembers. There was no evidence to suggest that this strategy was anything other than appropriate or that alternative strategies had been suggested and ignored. The Resource Worker testified that she has seen the foster father use breathing and re-direction strategies with the child and that it worked. She has seen him calm the child down. The child’s blood pressure gets high during his tantrums and requires the foster mother to monitor his vital signs.

47After the child returned from [the Group Home], after a period of relative calm, he started making death threats. The foster father was concerned about the death threat language used by the child; he sought advice from the Society and the family sat down to set ground rules and strategies to prevent the behaviour.

48According to the Child’s Worker, the Applicant also took the lead in terms of safety plans at school and home over the past 2 or 3 years because of their knowledge of autism. They discussed their needs and strategies with her.

49Over the summer of 2013, the Applicants decided that the child’s behaviour was such that he couldn’t spend the summer at the trailer with the family as they had in the past. The foster father stayed with the child in the home. However, after a successful visit to the trailer, the child and foster father were able to return and stay with the family at the trailer for the remainder of the summer.

50The child has hit the daughter twice and once, scratched the son, possibly by mistake. Since then, the foster father has explained things to his daughter and they have developed a way of dealing with the child’s aggression that seemed to work. The Applicants are not concerned for the safety of their son since when the child scratched him, the older son was firm with the child and there have been no further incidents. If the child returned to their care, he would have his own room but in any case, the older son has a special bed that is visible to the Applicants. Their concern about the grandmother being alone with the child has to do with her age and ability to manage him but not safety per se. There was no evidence of aggression to the grandmother by the child.

51The Society raised a non-specific concern about inconsistency between the Applicants’ parenting styles and referenced the consistency and structure in the new placement. The evidence as to any inconsistency in the Applicants’ parenting style was limited. The foster mother may be slightly more permissive. However, there was evidence of planning strategies together and of structure and routine in the Applicants’ home. They both recognize the importance of routine to the child as an autistic child. Both Applicants testified about preparing the child for appointments/ change and an operation using repetition and by walking him through the process with for example, a sample cast and other, similar strategies. According to the foster father, there is not a big difference in parenting styles and when a decision is made in front of a child, they support each other. If they disagree, they will discuss it together privately and if they change the decision, they will inform the child and tell them what the final decision is.

52According to the Applicants, the child does not like strangers and they explain new people to him and why they are coming. He hit one Youth Worker at a meeting. He has reacted negatively to CAS personnel after they took him to respite and to the current placement.

53The evidence about the day the child hit the child and Youth Worker suggests that the Child’s Worker played a part in things going wrong as she gave direction that was inconsistent to what the foster father had about an iPad.

54The Applicants’ evidence was that both were open to and took direction from professionals and checked back in with what was working or not working with the child and that they would continue to do so. The Society’s witnesses agreed that the Applicants took advice of professionals and that they had a positive working relationship with the Society. Not one witness suggested that the Applicants could not learn or that they would not take professional advice or direction.

55The Applicants have demonstrated the ability to meet the needs of their own autistic son, whom they adopted, knowing of his special needs. He is now 18. They were told he would not walk and with their help, he walks with supports; they were told he would be non-verbal but he is verbal. He has had and passed through a period of aggression.

56The Board is satisfied that the Applicants have demonstrated the ability to learn and implement new strategies, take advice, work with the Society and professionals and to tirelessly pursue the supports needed for the child.

57In his current placement, the Agency [Agency] foster mother works with autistic children and has done so for many years. There was not much detail given about the foster father. According to the Child’s Worker, the first six weeks of the child’s placement at the [Agency] foster home were “not easy”; the child was very aggressive and displayed some learned sexualized behaviours from his temporary group home. He seemed to soil when he didn’t get what he wanted. There has been improvement in that regard and he went for three weeks without soiling. This issue has not totally resolved and there have been some new examples of soiling without knowing the triggers. The child still has tantrums but they are shorter and less frequent. She described strategies that are similar to those used by the Applicants: the foster parents or staff watch the child in a time out room to make sure he is safe. The swearing and threats have lessened after the first six weeks, during which there were many. The child has made friends and has had “play dates” in the home.

58The [Agency] foster parents and the child have gone through the Applied Behavior Analysis (ABA) program together. This was the program that the Applicants applied for, over 14 months before the child was accepted. This program was not approved until January 8 but the Applicants were not aware it had been approved until mid- January, well after the day of crisis on Jan 9, when they asked for the child to be removed. When the Applicants asked to participate in the ABA with the child in his current placement, it had already started with the [Agency] family. The Applicants will be taking the ABA in the fall. The child has identified to his OCL that he has learned from the program. The [Agency] coordinator described it as a helpful program that identifies strategies and helps the child express his emotions. The Child’s Worker described the program as “helping a lot” in terms of the child’s processing of his emotions and learning how to respond appropriately. She testified that “he has an increased understanding of triggers, [it has] helped his learning process and he has made real gains”

59There was no dispute that this was a beneficial program for the child and his current foster parents. The child has shown a decrease in duration and number of “melt downs”. The Board heard no clinical evidence about whether it was his environment or the ABA training or a combination thereof that had led to these improvements. The [Agency] coordinator attributes most of the success to structure but she is not a clinician and has not assessed the Applicants’ home or the tools used in that home. In his current placement, the child’s sleep and his potty training have improved. However, the updates from [the Agency] and the information that the child is giving to the Applicants indicate that he still faces challenges in terms of behavior and soiling. The [Agency] placement is supported by regular staffing for relief. The ABA behavioural consultant come into the home and relief staff take the child into the community. He had one to one staff at a day camp. The child requires constant supervision. As of July 2012, the current foster home was to get 1 or 2 weekends of respite per month.

60In his current placement, the child has benefitted from the strong case management skills of the [Agency] coordinator who worked long hours to set up a plan to meet his needs at home, in the school and in the community. She has experience with developmental disabilities and autism. She set up consultations with the Developmental Disabilities Consulting Team that has a monthly clinic to discuss progress and challenges; it includes the [Agency] foster family and the Occupational Therapist. They meet and get direction for strategies to implement in the home; the family keeps track of what causes anxiety and they look for triggers, to help prevent meltdowns. This has been in place for the child since the [Agency] coordinator started supporting the child, in April. She matched the current home to his needs and their skill level. She felt that since they had an older (15) year old child, it was appropriate. She would not place the child with a high needs child or younger child. She ensured the ABA was in place and she set up the school program described below.

61The [Agency] foster parents do not take the child to and from school, staff do; this helps support him be in school all day. Her plan for the child has covered all of the bases: except for that of attachment. According to her, the child has had great success in his current placement, considering the amount of upheaval. He sleeps “quite a bit”, going to bed at 8 p.m. and getting up at 5:30 a.m. If he wakes in the night, he is re-directed back to bed with re-assurances. He understands expectations and knows consequences in the home and the foster family follows through.

62[The Agency] offers supports to families in the community, at risk of losing their autistic children to help get them supports and to case plan. This funding would not include foster parents, even if they were like biological parents. The [Agency] coordinator does consult to other agencies and helps them design programs. It would be possible for the Society to look at the purchase of her consultation if the Applicants were to care for the child. She could develop a plan but could not supervise it to ensure they follow it. She testified that as she is not a behavioural therapist, but one could come in and do a consultation with the Applicants.

63The Society placed a lot of weight on the fact that the child was out in the community and that he could attend a plan of care meeting in his [Agency] placement. The evidence of the Applicants was that they had taken the child into the community for things like shopping and that he collected bugs with his sister often. He did not like others “in his space’ so he did not have friends over. There was a point when he was not going into the community very often, prior to the removal because of tantrums.

64The current foster home has trained relief workers to take the child into the community; he had a week at a nature camp and was accompanied by a 1 to 1 worker at camp. He also had play dates and a friend he brought home. He also takes riding lessons. The Board sees the issue of community outings as linked to that of supports and possibly the benefit of the ABA program. Recently, the Applicants themselves have taken the child into the community for visits and these have gone very well.

65The Board is not satisfied on the balance of probability that it is the child’s new home environment, as opposed to his old home environment that has accounted for any improvements in the child, who still needs constant support. There are too many contingencies at play including the ABA program, respite, relief, clinical supports and educational programming. These are discussed in more detail below.

Respite and Relief

66The question of respite and relief is integral to an understanding of the stressors on the Applicants in terms of meeting the child’s needs and to the question of meeting his future needs.

67According to the Resource Worker, foster families try and get their own relief/respite and if that doesn’t work, the Society will try an internal foster home and if that fails, an outside paid resource.

68The Applicants have been consistently asking for respite, for years, including at times of crisis.

69The foster father’s evidence was that the child is familiar with respite and has asked for it because he sees his brother go to regular respite, once a month at a scheduled time. The child has identified to them at times that he needs a break from them or that “they” need a break. The Applicants’ position is that with consistent, regular once monthly respite and some relief, they can sustain the placement. The evidence was that the respite had to be consistent and within a schedule anticipated by the child to be successful. As an autistic child, the child likes routine and his experience with his brother’s respite is that he got picked up on Sundays. Any variation from respite similar to his brothers’, made the child upset. The Society has been unsuccessful in finding respite for the child, except on an emergency basis.

70The Applicants agree that the Society tried to get respite, but they feel more should have been done. For example, they feel there was a replacement worker who tried harder and more consistently. According to the Society, it had no internal foster homes that could handle the child’s behaviour. They tried two families and the parties agree that these did not work out as both families asked for the respite to end before the scheduled time.

71According to the Resource Worker, before the 5 month placement in [City A], in 2012, the Society did not try to find an outside resource for respite. Further, she does not recall the Society ever exploring the option of a regular outside paid resource for the child to attend respite every 3 or 4 weeks. The outside Resource Worker testified that the first time she was approached to help find respite was prior to the [Group Home] placement in [City A]. She had contact with [the Agency] and it was then that a co- parenting option was offered. The [Agency] coordinator was approached and proposed that the child spend time with both the Applicants and a[n] [Agency] family under a shared parenting model. This model included respite and training between families. This model was premised on the understanding that the child would eventually transition to the [Agency] home as his primary residence. (Coincidentally, the [Agency] family in question was the family that would later become the current [Agency] foster home). The model did permit the parties to change their mind at the end of the trial period. The Applicants did not accept this offer because they did not want to transition the child to another home. While it may have been a way for them to obtain much needed, consistent respite, it could have been considered dishonest and unfair to the child and the [Agency] home, to enter into an arrangement where the Applicants were not on board with the full plan. They were not being offered respite and supports to keep their family together, but rather, a new family structure.

72It is the role of the outside paid Resource Worker to look for respite when no internal foster home is available. She testified that she has never faced any barriers in terms of the Society’s willingness to pay for an outside resource for the child. She had no re-request to consider co-parenting options after [the Group Home]. She had no involvement again until there were requests for respite in crisis. At some unspecified time, she contacted [a society] about respite but not [City B]. She felt [City B] was too far for weekends but didn’t consult with the [City B] Society] about any ideas or options they may have. Further, she did not consult with [the Centre] or [the Childrens’ Resource] about respite options because no one asked her to. After the placement at [the Group Home], there was no evidence that the Society explored further options in the [City A] area. The outside Resource Worker didn’t pursue any government or local hard to serve options because of what she understood the restrictions to be. She did not make inquiries of agencies about overflow beds.

73The evidence was clear that there is a lack of local respite by outside paid resources for reasons including that [the Agency] had told the society that its families wanted long term placement and not respite roles. [The Agency] does not always have families available to do respite.

74The Society was able to find short term emergency respite. They did so in December of 2013 by purchasing access to a bed for a month and requiring the Applicants to take at least 6 days of respite, which they did, over three weekends.

75The Society’s position was that even with this respite, the Applicants couldn’t manage and this respite didn’t solve the issues. The Applicants’ evidence was that the child resisted this model because he knew it wasn’t what respite was supposed to look like i.e. once a month at a set time. The Board agrees, based on the evidence presented by both parties that structure and managed expectations are important for the child to succeed in all contexts, including the respite context. The Board cannot make a determination that respite would not help based on the experience of one month of respite that the child resisted for reasons consistent with his way of processing expectations.

76The current foster home has relief and will have structured, regular respite, possibly in the home, to help support the placement. This option was never tried for the Applicants. According to the Resource Worker, the option of wrap around services being brought into the home to provide respite was not on the table for the Applicants in any detail and was never explored. Her reasoning was that there was no money, no people and there was no ability to hire. However, there was no exploration of whether there were in fact these barriers to offering in-home respite and whether or not they could be overcome. For example, the evidence before the Board was that the union might object to workers working with the family during hours that they worked. The Society youth workers do not work on weekends, thus there would be no such barrier to offering in-home respite through an appropriately trained outside paid resource, in the home, on the weekend.

Relief

77When the child returned from [the Group Home], in 2012, the Applicants proposed the grandmother for relief, their niece for tutoring and the Society put in place a child and youth worker, weekly or as needed. They provided extra funding to the Applicants to help with cleaning the house and for the grandmother to provide some relief. The niece had a baby and never did help with tutoring. The child and youth workers were not trained in and had no experience working with autistic children. They attended weekly at one point and then every two weeks. One of the youth workers took the child out once and the child ran away, so he worked only in the home. The Child’s Worker agreed that since the youth workers did not specialize in autism, they may not have been that helpful.

78The Applicants were using the grandmother for relief in the home. They decided not to leave her alone with the child unless he was asleep because she is 80 years of age. They felt she could not manage his behaviours.

79The Resource Supervisor testified that they did not hire outside paid supports with experience in autism because they were worried about labour/union issues. However, they have not taken this up with the union, nor have they tried to hire in home support with clinical qualifications that might not overlap with their youth worker’s skills. Nor have they pursued having their own workers receive more training, which is something they could do. Their workers work from 8:30 a.m. to 4:30 p.m. Monday to Friday and one worker works from 1 p.m. to 9 p.m. Monday to Thursday. The Resource Supervisor testified that the collective agreement says they can’t hire during the hours their workers work. This leaves Friday after 4:30 p.m. and weekends as a time that would not conflict with Society staffing and possibly more time after 4:30(after school) during the week depending on the role of the one Society youth worker with the evening hours. The Society fears the youth workers would grieve if workers were put in place. However, they have not had a discussion about hiring additional staff with expertise and there is no plan to do so; such a discussion would involve human resources. The Resource Supervisor testified that a clinician, who is not a child and youth worker, could write a proposal and seek funds to assess and support the Applicants in their home. This option has not been explored with the Applicants.

80In addition, the Applicants testified that they have informally approached a social work student at the local college who is willing to come in and support them a few days a week in the home. The foster father testified that if the child were to return to their home, they would make formal inquiries for such an individual to provide relief. Further, their new daughter in-law works in the field of autism and may be willing to help with relief or respite. The Resource Supervisor’s evidence was that the Society can approve this type of arrangement because it is different than hiring staff. They could also look at paying for training of their staff by specialized agencies involved with the child such as at the [Centre] or [the Childrens’ Resource].

81The Society has not explored using “wrap around services” with the Applicants by adding some staff support to the home. According to the Child’s Worker, this is not something the Society has done before or that they have experience doing. She testified that when she asked for more services in the home, she was told that the Society didn’t have contracts or support systems to support that option. The Applicants weren’t made a treatment or specialized foster home as at the time they asked, there was a cap. They were not turned down because of lack of ability. There was no evidence that this option has been explored recently.

82The Resource Supervisor summed up the core issue when she testified that “the beauty” of the [Agency] placement is that it had everything the Applicants had been asking for. The Board finds that there were gaps in the attempts to layer supports into the Applicants’ home and that some options were not explored. Further, the [Agency] foster home has had the benefit of supports that were not available but would now be available to the Applicants. This must form part of the analysis of the child’s overall best interests, as set out below.

School

83School and the child’s refusal to attend has been a major cause of concern for the Applicants and the Society. This is a significant part of the context leading up the Applicants frustration and is an important part of the child’s life that as yet, has no clear direction or answers. It is a need that the Society must help any foster parent try to meet for the child. In this regard, the Board asked itself: have the Applicants done something to demonstrate that they cannot work to meet this need; has the Society found a solution that demonstrates an inability on the Applicants’ part to meet the child’s educational needs that are part of his mental, emotional and developmental needs?

84The child was placed in regular junior kindergarten and grade one with EA support and resource support. According to the Child’s Worker, he did quite well scholastically but he had a difficult time socially.

85In 2011, the child was more aggressive in school. He had a lot of rage and was not fully aware. When he was at [the Group Home], school was out for the summer and he did not attend in the fall. When he returned, he was slowly integrated back into school since he was doing well. However, by February, 2013, things started to deteriorate again. The Board heard about incidents in which the child was running through the halls. The child scraped skin off the arms, under padding his Educational Assistant (E.A.) wore for protection and the school was locked down. The protocol with the school, supported by the Society was for the school to call the foster father who picked the child up and took him home, or if, possible, de-escalated the child’s behaviours at school so that he could continue. The child has above average reading skills for things important to him like fish and dolphins. As part of his sensory issues, things set him off such as if someone walks by or breeze or shadow.

86In the spring of 2013, the child had to be removed from regular class and placed in an essentials class with 7 or 8 students and a 1 to 1 E.A. for the child. In the fall, the child was down to attending a half day, four days a week. He was learning life skills and was not in a scholastic program. He spent a lot of time in an isolated room, for sensory breaks and did limited work. The Applicants expressed their concerns to the Society that he was losing his scholastic skills. They worked with him at home.

87The Applicants felt the school program was too lax and not sufficiently structured and that is why it was not working. Further, the child was not learning core subjects that he had strengths in, like math. The foster father’s evidence was that when he called the Child’s Worker on January 9 concerned that this was the third day he had refused to go to school, she had said: “what do you want me to do about it…. School is not important”. The child has had an “IPRC” under the Education Act and the Applicants attended. He has an Individual Education Plan. The foster father feels that in retrospect, he should have done more advocacy with the school Board and his evidence was that he would go to the school board if the child were returned to them. The Applicants feel that the Catholic Board, where their children go, may be able to work towards better accommodating the child. Even with all of these school difficulties, the Society has not obtained a psycho-educational assessment to offer insight into and recommendations for the child’s learning needs. The Applicants see the child as being in a special needs class with a low student teacher ratio and want him to be in a school setting; however, if need be, they would offer him home schooling.

88Currently, the child is in a two to one setting at a[n] [Agency] site, for school. He is the only pupil. This has been referred to as a simulated school setting. The Child’s Worker explained that the child does better interacting with adults than children. He has some contact with children in the wellness centre but not as part of the school program: there is no social component.

89He is attending full days and is doing fairly well. He has hit one of the staff. According to his worker, there have been 6 “episodes”. The current [Agency] school teaches core subjects and has the same breaks and schedule as regular school. The ABA behavioural therapist came in and worked with the child and the school. The Child’s Worker testified that there is no room for the child to negotiate in school, unlike his former program. In his former program he could do a journal instead of subject matter. Currently, he has choices but they are within the core subject matter.

90There has been no transition to a regular school setting as there had not been a meeting with the school or the Board about school placement. [The Agency]’s goal was to transition the child into an integrated setting but nothing has been put in place. The [Agency] coordinator testified that if she doesn’t like what the proposed public school offers, she will offer to provide the program and ask the school board to pay for it; she has done this twice before and it has worked.

91The Board is not satisfied that the Applicants bear responsibility for the breakdown in the child’s education or that the educational issues have truly been resolved. The role of schooling and supports for schooling is addressed further below.

Place in a family, continuity of care and child’s wishes

92Society workers and witnesses call the Applicants the child’s parents and he, their son. He has lived with the Applicants since birth. They have not adopted him because of the anticipated high cost of his special needs. The Society agreed that the Applicants’ family was the child’s family and that no matter where he lives, that is the long term plan.

93The Society did not address the child’s attachment to the Applicants or his place in their family in this application except to the extent that it is their position that this interest can be met by regular contact with the Applicants. In terms of planning and caring for the child, they did not have a clinician assess placement or the impact of disruption of placement with the Applicants on the child. Nor did they involve a clinician to provide the child with supports relating to the removal, the current uncertainty and his loss and grieving process. The Society did not lead any evidence to suggest that they were planning on dealing with this loss if the child were to remain in his current placement. The OCL was concerned that the Society had not dealt with attachment and that they had not let the child see the Applicants for seven weeks after his move.

94When he was first moved, the child wanted to come home and have respite with the new placement. Now, after the passage of time, he has told his OCL he wants to stay in his home but have respite with his parents. He has also told her he wants to live at both places and he has told her that he wants to see his parents as much as possible. The Board acknowledges that this is a confusing time for the child who does not know what will happen or what his true options are. The updates from [the Agency] speak to how much the child misses his parents, his grieving and his confusion. A case note referenced that the child does not want to upset either set of foster parents. The Board heard evidence from the foster father that the child told him he had been told he could never come back to their home. This could have affected the child’s stated preferences. It is uncertain. In any case, the child calls the Applicants mom and dad and he wants to spend as much time with them as possible. He calls his current foster mother his “friend”. His language demonstrates a clear demarcation of where his place in a family is.

95While the child does not like strangers or lots of adults, the evidence is that he loved family gatherings and even asked the Applicants if he could call and invite the family members.

96In terms of siblings, the child’s siblings throughout his life have been the Applicants’ son and daughter. The Board heard evidence about the way they interact and is satisfied that they have a sibling-type bond. The Society’s evidence was that the child was developing a bond with his new foster brother. However, he has an established bond with the Applicants children, his foster siblings. He also has a relationship with the Applicants adult children who live away from home and with the grandmother. He speaks to his sister frequently on the phone and he is used to sharing a room with his brother. He and his sister hunted for bugs often and he and his brother would watch movies together. They all spent time at the family trailer in the summers.

97At the time of the removal, the Child’s Worker thought the child should maintain contact with the Applicants but on the advice of the different caregivers, this didn’t happen so that the child could “settle in”. The Applicants advocated for contact and after the foster father spoke to a supervisor, they had contact and saw the child regularly. The Society’s long term plan is for open visits and access between the Applicants and the current foster family; however, the Applicants have not had overnight access yet. It is unclear how such a plan would work given the child’s need for structure. The Applicants were calling the child but he would get upset after calls. Thus, the [Agency] coordinator suggested emails with the Applicants. The move has been hard for the child because he misses his parents and in particular, found it hard to talk to his “dad” and not have him there. At the time of the hearing, the Applicants had regular email contact and had worked up to once weekly access visits with their family and the child in the community. The visits have gone well, without incident. After visits with the Applicants, the child may act out or not sleep as well. The [Agency] coordinator testified that the child clearly misses his parents.

98Neither [the Agency] nor the Society have put in place supports for the child to deal with his loss, grief and transition. The clinical team that [the Agency] consults with was not asked to address the issue. The Applicants have dealt with the child’s knowledge that his foster father asked him to be removed. His foster father sat down with him and told him that the foster father had made a mistake and that sometimes that happens with adults and that it is not the child’s fault. The child feels that it is his fault that he was moved because he was refusing to go school.

99When asked whether she would continue to see the child if he stayed in the [the Agency] home, the foster mother testified they would need to have a family meeting, because that is how they deal with things. She wanted to discuss the situation with the other children and the foster father. The foster father broke down during his testimony and told the Board that no matter what, he would always continue to see his son. The Board was concerned with the Applicant foster mother’s testimony that they would need to make a family decision to continue seeing the child if he were to remain in his current placement. However, she did not say what that decision would be, nor did she say she did not want to see the child. The foster father was clear and unequivocal in his statement that no matter what, he will continue to see the child. The foster mother’s position is that she wants the child returned to her home. She has demonstrated great love and care and attention to his needs over the years, as has the foster father. This love and the child’s love for them and their children, is undisputed.

100At some unspecified point, the foster mother told the society she was concerned that the child’s needs were taking away from her ability to deal with her daughter’s needs. She testified that she has since resolved this by speaking with her daughter and her school. Her daughter has successfully dealt with the problems she was having at school. According to the foster mother, her daughter wants the child back in their home. The daughter calls him at least twice a week and sees him on visits in the community. The Applicants’ adult son knows the child is not in the home and asks after him.

101The Society framed continuity of care as being about his current placement but did not address continuity of care in the sense of the child’s long term placement and relationship with the Applicants as part of their family. It was this continuity that was disrupted, without supports for the child’s attachment related needs.

Weighing of Best Interests Factors

102The Board finds that overall, the Society’s focus has been on behavior management and not on the child’s needs for continuity of care and his attachment to his family. The situation that evolved as the child aged was one in which the family did not have the supports it should have clinically – after the IBI ended and in terms of respite and relief. The situation became more and more crisis-driven for all parties. The Society found a strong person to take the reins and the lead out of their hands; the [Agency] coordinator who, for all intents and purposes is the case manager. She has knowledge across various systems for children with special needs, including autism. While the Society Child’s Worker testified that she was the case manager, the [Agency] coordinator testified that it was she. The Board finds that in fact, [the Agency] is now coordinating the child’s care, while involving and consulting with the Society. The Society is paying for that care but their workers are no longer tasked with trying to pick up and coordinate the pieces, which is a difficult task for a child with complex needs. The [Agency] foster home had the benefit of resources that the Applicants did not, but could have benefitted from; namely the ABA which based on all of the evidence taken together, has had a positive impact on the child and his placement; an assigned clinician and a clinical team. The child has participated in the ABA program and the Applicants are doing so in September. The missing clinical supports are now in place for the child and whomever his caregivers may be.

103During the hearing, the Society consistently tried to explore what the Applicants would do or had done about the child’s various needs; treating them as parents and not, as foster parents. The evidence was that the Society’s system operates in silos: when respite is needed, first the resource person looks for an inside foster home, if that doesn’t work, another person, looks for an outside paid resource. While there are meetings and supervisory updates, there was a lack of coordination to the point that no one was, for example, looking for long term ongoing respite.

104Both the Society and the Applicants need to take responsibility for the breakdown of the placement with the Applicants and how things were handled at and following the child’s removal. The Applicants have admitted their mistakes and have expressed a strong willingness to learn. Simply put, the Applicants reacted out of frustration to a situation in which the Society did not provide them with the supports the child needed. The Society tried but did not push for resources that were out of the norm or outside of the jurisdiction or labour structure of the organization. There was some openness from [the Agency] to provide some resources to the Applicants when pressed by the Board; why did the Society not get a similar response?

105In terms of education and stressors at school, which greatly impacted the home, the Applicants did not advocate with the school board (they did advocate with the school) and admitted in hindsight that they should have done more. But the Society, the legal parent needed to take a stronger lead in terms of advocating for the right educational supports. Moving forward, there will need to be strong advocacy at the educational planning level and this should be supported by a psycho-educational assessment to help educators and all caregivers. The Board agrees with the OCL that education will be an area of concern for whoever the child’s caregivers are. The Applicant foster father has said that he will do whatever advocacy is necessary but this must be supported by advocacy from the Society. The Applicants are not to blame for the deficits in the education system or the failure of the Society to get an assessment. The current simulated school setting has not resolved the educational needs of the child on an ongoing basis, but much can be learned from it. The child’s educational needs are outstanding and the Board finds that whoever is caring for the child will have a struggle and need strong Society supports to advocate for those needs to be met.

106The path of least resistance for the Society would be to let the child remain where he is, with a strong case manager and highly resourced agency managing his care. But this ignores several things; it ignores the child’s long term attachment to and relationship with his de facto family and the impact of this loss on him, which the Society has not addressed; it ignores the fact that schooling issues have not been resolved and that the new family has not had a period in which the child was at a regular school setting; and finally, it ignores the willingness and demonstrated ability of the Applicants to learn new skills and work with professionals who are now in place.

107In looking at the whole child and all of the best interests factors, the Board is satisfied that the Applicants, and not the current plan, can meet the child’s needs under each relevant part of his life that comprises the best interests factors. It is worth noting that the Board did not hear direct evidence from the current foster parents but rather, from the coordinator. The Board heard direct evidence from the Applicants about their care of the child and it accepts that evidence.

108The Applicants meet the child’s need for a place in their family; he is in effect, their son and the brother to their children. The Applicants meet the child’s needs for continuity of care: they have been his caregivers for 11 years, with two breaks. The Applicants can meet the child’s mental, emotional and developmental needs, if they are provided with the supports that the child needs, keeping in mind that the new foster family has received those supports. Any training deficit that the Applicants have, they can make up. There was no evidence to suggest that they could not use and acquire new skills: the evidence was that they can and have. Whatever strategies are working for the [Agency] foster home, can be modelled in the Applicants’ home. The [Agency] coordinator said that she could be hired to consult on a plan and that the current plan was transferrable with some changes. Supervision would be up to the Society. She also suggested that a behavioural therapist could be hired to assess the home and provide supports.

109The Society and the OCL questioned that the Applicants have not taken steps to get training/set up programs since the child’s removal. They did try and get the ABA training but were denied. They have not taken the training at [the Centre] and perhaps, should have. They didn’t take it when the child was in their care because they had no respite; while they could have taken it separately, with consistent parenting as an important part of parenting an autistic child, this may not have been prudent. They explained that they did not take training or pursue programs because of their focus on the process before the Board. The Board accepts this explanation and also notes that as they no longer had any legal status regarding the child, they were unlikely to make any leeway in setting up resources. They have indicated that should the child be returned to their care, they would do anything that was needed or asked of them and that they would take the initiative if necessary to put supports in place.

110The Board is satisfied that the Applicants can meet all of the child’s needs. They will require support as would any family caring for the child. Society witnesses commented on their exemplary skills and commitment to the child. The parties will need to work together to make the transition as smooth as possible for the child but he will face challenges and require supports no matter where he is placed. It is imperative that the Society address issues of loss and attachment with the child in terms of his break and reunification from the Applicants and his transition out of the current foster home.

111To the extent possible, the same individuals should be used for respite and relief. The Board understands that the current foster home did not initially want to be a respite only home for the child. If that position has not changed, the Society will need to find consistent, long term respite or bring trained persons in to the home for respite. They will need to train their staff or hire staff for relief from an outside resource if the current [Agency] personnel cannot. Having a psychologist or psychiatrist take an immediate and ongoing role in consulting with the Society and Applicants to meet the child’s behavioural and attachment needs is crucial. The current team of consulting professionals was not brought in to the dialogue about the child’s recent attachment needs. Having a strong internal society case manager, at the management level, would be optimal in terms of coordinating with [the Agency] and other resources. For the time being however, [the Agency] is the child’s outside paid care giver and the Board trusts that as such, they will provide their full cooperation in his transition back to his foster family with the Applicants.

112The Applicants contacted the Office of the Provincial Advocate for Children and Youth (“Advocate”) who did not get involved in this proceeding. The Advocate has a legislated mandate to advocate on behalf of children in care. With the assistance of the OCL, this additional support could be put in place for the child, from a child-focused perspective. The child demonstrated, through his interactions with the OCL, that he can engage with an advocate in the proper setting and circumstances.

113For the above reasons, the Board made the following decision, dated August 13, 2014:

“[2] Having heard the evidence and the submissions of the parties, the Board:

1. Finds that the action that is in the best interest of the child is that he be returned to the foster care of the Applicants, with supports.

2. Rescinds the decision to remove the child and orders that the child be returned to the foster care of the Applicants on November 1, 2014.

3. Orders that, pursuant 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 the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings. The parties may share this decision with persons or agencies mentioned in the decision that are or may be providing services for the child or the Applicants.

3The Board will stay seized for implementation purposes until further notice.

4The Board finds that the following steps are in the child’s best interests, linked to his return to the foster care of the Applicants. To ensure that the child’s best interests are met, the Society should:

In cooperation with the Applicants and [the Agency], the current caregiver:

1. Start an immediate transition back to the Applicants’ home with extended and then overnight visits in the home.

2. Immediately secure the same or similar supports to those of the current associate home by using those that already exist by whatever means possible or by securing similar supports through hiring or training specialized supports; in this regard, the Applicants could pursue becoming an associate home for [Agency] (in addition to a foster home) to grant them access to the [Agency] resources. If possible, the same personnel as used by the associate home should be used for relief for the Applicants and the associate foster parents should provide regular, ongoing respite. If not possible, the Society may have to look outside of its jurisdiction and/or make exceptions within its organization structure and usual practice to ensure the appropriate supports are put in place.

3. Immediately obtain a clinical consultant (psychologist or psychiatrist) with knowledge of autism and child development to provide guidance and direction about the child’s care and transition from a holistic perspective that addresses attachment issues as well as the child’s evolving special needs as in the home, at school and in the community. This clinician should work closely with all involved.

4. Immediately appoint a strong case manager, preferably at the management level with the experience and skills to address all facets of the child’s needs and work with all caregivers and service providers.

5. Ensure the Applicants obtain the ABA training in September and, as soon as possible, additional training at the [Centre]; ensure that in the future, the Applicants obtain training as recommended by the consulting clinician.

6. Gradually transition the child from the current two on one school placement at [the Agency] to the school he will be attending when all pieces are in place.

7. As soon as possible, initiate an ICRP and updated IEP in the new school/ board and obtain a comprehensive psycho-educational assessment to meet the child’s needs; this will include advocacy and cooperation with the school board.

5Further, the Child’s Counsel (“OCL”) should contact the Office of the Provincial Advocate for Children and Youth on behalf of the child, with his consent, to help secure the child an advocate to assist in accessing resources and navigating the various systems.”

CONFIDENTIALITY ORDER

114Pursuant 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 the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings. The parties may share the Decision dated August 13, 2014 with [the Agency] and may share the Decision and Reasons for Decision with the Office of the Provincial Advocate for Children and Youth.