B.L. and J.L. v. Catholic Children’s Aid Society of Toronto, 2015 ONCFSRB 50

CHILD AND FAMILY SERVICES REVIEW BOARD

B.L. and J.L.

v.

Catholic Children’s Aid Society of Toronto

REASONS FOR DECISION

Date: November 9, 2015

Citation: 2015 CFSRB 50

Related to 2015 CFSRB 48

Indexed as: B.L. and J.L. v. Catholic Children’s Aid Society of Toronto (CFSA s.144)

INTRODUCTION

1This is an application by J.L. and B.L. (the “Applicants”) under section 144(3) of the Child and Family Services Act, R.S.O. 1990, c. C.11 as amended (the “Act”) asking the Board to rescind the decision of the Catholic Children’s Aid Society of Toronto (the “Society”) refusing their application to adopt [Child 1] and [Child 2] (the “Children”). This application was heard on September 21, 24, 25, 28, 29 and October 6, and 7, 2015.

2It is the position of the Applicants that it is in the Children’s best interests to be adopted by them. They are confident that the Children who have been their foster children for the past seven years are bonded emotionally to them and their extended family, and are developing well despite having special needs and a difficult history. It is the Society’s position that it is not in the Children’s best interests to be adopted by the Applicants because of concerns related to the foster mother’s history of inappropriate discipline with the Children, the Applicants’ approach to child rearing, the breakdown of the relationship between the Applicants and the kin family resulting in a reduction of the Children’s access to their kin family, and the deteriorating relationship between the Applicants and the Society. The Society proposes to place [Child 1] with kin family and currently has no formal plan for [Child 2].

3The Children were represented at the Hearing by the Office of the Children’s Lawyer (the “OCL”). Through the OCL, the Children’s position was that they wish to be adopted by the Applicants, although [Child 2] recently began to express confusion, possibly because of her wish not to disappoint either family.

4For the reasons that follow, the Board has determined that it is in the Children’s best interests to maintain the bond they have formed with the Applicants and to benefit from continuity in the same family where they have lived for the past seven years, and that they be placed with the Applicants for adoption.

5Consequently, the Board rescinded the decision of the Society to refuse the adoption application and made the following order on October 16, 2015:

Having heard the evidence and the submissions of the parties, the Board:

• Rescinds the decision of the Society to refuse the application of the Applicants to adopt the Children.

• Orders that the Children be placed for adoption with the Applicants.

• The Board will remain seized for matters relating to the implementation of this decision.

• Reasons for this decision will follow.

BACKGROUND

6[Child 1], nine years old, and [Child 2] fifteen and a half years old, are half-siblings through their mother. They and their sibling [Sister], seventeen years old, a sister to [Child 2] and half-sister to [Child 1], were placed with the Applicants as foster children in 2008. The Children are Crown Wards with access to their kin family, two maternal aunts and their families, one in Ontario and the other in the USA. Their biological mother resides in [Europe]; the Children have occasional telephone access to her.

7On June 26, 2014, the Applicants submitted an Application to the Society to adopt the Children.

8The Applicants have been foster parents for the Children and their older sister for the Society since 2011 when, at the request of the Applicants, their file was transferred from [a Family Home], a specialized residential foster home program licensed by the Ministry of Children and Youth Services. At that time they were approved by the Society as a foster home for these three children only.

9The Applicants have an extensive fostering history. The foster mother previously fostered children for five years in the United States, in a former marriage, and adopted two of those children. The foster mother has four children from her previous marriage, now adults with their own families. The foster father has three adult children from a previous marriage. The Applicants fostered with [another Society] between 1998 and 2000 and for [the Family Home] between 2008 and 2011. The Applicants continue to be in touch with their adult former foster children.

10The Applicants are described as a stable loving couple, very committed to the Children, supportive and spontaneous. The foster father is a group benefits consultant; the foster mother is a full time home maker, formerly a nurse.

11In 2013, at the suggestion of the Society’s resource worker, the Applicants considered adopting the three children, [Child 1], [Child 2], and [Sister]. The plan for adoption was subsequently deferred because of the foster mother’s ill health and because the Applicants were concerned about the need to rely on the Society’s foster care subsidies to meet the Children’s special needs. As well, the Applicants were unsure about adopting [Child 2], uncertain as to whether they could meet her needs.

12In June 2014, the Applicants made the decision to adopt the three children, in part, because of concerns regarding the possibility of the Society seeking to remove the children from their home.

13In March 2015, [Sister], left the Applicants’ home after a disagreement with them, and is currently residing with her maternal cousin. The Society is in the process of approving the cousin’s home as a kin home.

14The Applicants’ Application to adopt [Child 1] and [Child 2], was discussed at a meeting of the Society on July 9, 2015. The Society’s decision at that meeting was to refuse the Application for adoption of the Children by the Applicants because of concerns noted below. Instead the Society decided to plan for [Child 1] to move to the aunt and uncle residing in Ontario as a kin placement, and for [Child 2] possibly to move, on an interim basis, to the same aunt and uncle and in the future to the aunt living in the USA. However, the Society concedes that there was no formal plan for [Child 2] who will soon turn sixteen.

15A letter outlining the Society’s decision was sent to the Applicants on July 15, 2015. On July 23, 2015 the Society provided the Applicants with a formal Notice of Refusal of their adoption Application.

16The Applicants filed an application appealing the decision of the Society with the Board on July 23, 2015. The Children have remained in the Applicants’ foster care pending the outcome of this proceeding.

17The Applicants state their belief that the Children and [Sister] were placed with them in 2008 with the understanding that this foster home was to be their “forever” home. They state that they have loved and cared for the Children who have challenging special needs and difficult behaviours. They wish to adopt the Children and to continue to be their permanent home and parents.

18The Applicants point out that [Child 1] has never known another family, considers them his only family, and has been using their surname with the permission of the Society. They state that [Child 2] expresses a strong desire to be with her brother; she states that she wishes to remain with her foster family, her friends, her school, and her community.

19The Society submits that it has a number of concerns regarding the Applicants. They include two incidents of inappropriate physical discipline by the foster mother against [Child 2], in January and October, 2014, and the fact that the second incident was verified by the investigating CAS; an incident of assault by a former adult foster child on the foster mother, reported to the Police but not the Society; challenges working with the Applicants related to their role as foster parents and their difficulty in following Society policies and procedures, including training; a recent breakdown of contact between the foster family and kin family resulting in a reduction in access for the Children to their kin family; the foster mother’s tendency to focus on the Children’s medical conditions; the possible over involvement of [Child 1] in extracurricular activities to the detriment of his schoolwork; and the possible conflict between the Applicants’ religious values and the Children’s behavior.

20Through the OCL, the Children’s position is that [Child 1] adamantly wishes to remain with the Applicants, the only parents he has known and that he will consider no other possibility. [Child 2] has expressed her desire to remain in the Applicants’ home with her brother where she has lived for the past seven years, and to stay with her school, her friends, and her community. Recently, however, [Child 2] has expressed some confusion, possibly because of pressure from the kin family, and her desire not to disappoint either family.

21The OCL submitted that both Children are feeling anxious and distressed by the current proceedings.

ANALYSIS

22The relevant provisions of the Act on this application are as follows:

144. This section applies if,

(a) a society decides to refuse an application to adopt a particular child made by a foster parent, or other person.

(2) The society or licensee who makes a decision referred to in subsection (1) shall,

(a) give at least 10 days notice in writing of the decision to the person who applied to adopt the child or with whom the child has been placed for adoption;

(b) include in the notice under clause (a) notice of the person’s right to apply for review of the decision under subsection (3)

(3) A person who receives notice of a decision under subsection (2) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the decision subject to subsection (4).

(11) 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.

23The specific best interests of the child criteria are addressed in the Adoption section of the Act.

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 religious faith, if any, in which the child is being raised.

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

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

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

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

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

10. Any other relevant circumstance.

24In making its decision in this case, the Board focused on the best interests criteria which are relevant to these particular Children. The Board also dealt with several matters under “relevant circumstances”, being the concerns raised by the Society.

25The Board was guided more generally by the overall purposes of the Act, as follows:

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

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

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

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

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

iii.provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests.

26The Act mandates that:

63.1 Where a child is made a Crown ward, the society shall make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family through one of the following:

1. An adoption.

The Board’s Mandate

27In Family Youth & Child Services of Muskoka v. D.M. and C.M., 2010 ONSC 6018 (Muskoka), the Divisional Court provides a detailed analysis of the Board’s mandate on a s. 144 application in paragraphs 20-30 of its unanimous decision:

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.

Support for this interpretation can be found in subsections 144(12) and 144(13), which prevent a children’s aid society from taking a similar action (another adoption placement or removal from an adoption placement) pending either the expiry of the review period or confirmation of the society’s decision by the Board.

This interpretation is also consistent with the underlying purpose of the CFSA, to promote the best interests, protection and well being of children. It is also in keeping with the underlying purpose of the statutory amendments that resulted in s.144, which were directed to establishing a process, via the Board, for independent review of certain decisions or actions of children’s aid societies.

(…) First, the use of the word “action” bestows broad authority on the Board to determine best interests within the parameters of the decision under review. Second, the comprehensiveness of the statutory review process supports the Board making a substantive decision concerning the child’s best interests. It is a complex quasi-judicial process that would not be necessary if the Board’s mandate was restricted to ensuring procedural fairness in the Society’s adoption application process. Third, s.144 would not explicitly refer to the best interests of the child if it did not intend the Board to make a substantive “best interests” determination.

For these reasons, we reject the submission that the Board’s mandate is limited to ensuring that the society’s process in reaching its decisions concerning adoption applications was fair. We find that the Board’s mandate when reviewing a decision of the society under s.144 is to determine which action is in the best interests of the child and to confirm or rescind the decision under review. (emphasis added)

Preliminary Matter: The Homestudy

28On August 28, 2015, the Board received an adjournment request from the Society for the purposes of conducting an adoption Homestudy (the “Homestudy”). The Society had previously conducted a child-specific SAFE Homestudy Report dated November 15, 2011 (the “SAFE Homestudy”). The Society approved the Applicants as foster parents for the Children based the results of the SAFE Homestudy.

29The Society’s request for an adjournment proposed that the hearing be put over for three months and the matter proceeded to a motion to consider the adjournment request on September 4, 2015. At the teleconference hearing the OCL objected to the adjournment stating that she was very concerned that the further delay would be detrimental to the Children, causing stress and anxiety.

30The OCL took the position that the Society had been aware since November 2014 of the Applicants’ request to adopt, and from at least July 2015, of their intention to commence this Application. She argued that the Society could have commenced a new or updated Homestudy at that time, but declined to do so. The OCL also advised that [Child 2] reported that the lack of finality was causing considerable stress, and had been interfering with her schoolwork since spring 2015. The Applicants advised that they too did not support the adjournment request.

31The Board issued its decision on September 8, 2015, as follows:

The delay to proceed to update the home study of the Applicants is too long. The Society is in a position to present the evidence on the reasons why the Applicants have been refused for adoption. A date at the end of October 2015 could be scheduled by the Board Panel in order for the Society to present the result of their updated home study if available.

32While the Board declined to adjourn the entire proceeding, the Society was offered one additional hearing date in late October 2015, which would have provided almost two months to update the Homestudy. The Board approached the adjournment request in that way to avoid delay, as per the recent decision of the Ontario Court of Appeal in CM v. CAS (Waterloo) 2015 ONCA 612. The Court of Appeal has clearly identified that in child protection cases, “it is imperative that judges, court administrators, counsel (particularly counsel for Children’s Aid Societies) and assessors take responsibility for ensuring adherence to statutorily required timelines.” (para. 31).

33At the commencement of the hearing on September 21, 2015, the Board asked the Society if it wished to schedule a date in late October to present the results of a new or updated Homestudy. The Society advised that it had yet to commence the updated Homestudy and were prepared to do so if the Board was willing to grant a three-month adjournment. For the reasons set out above the adjournment request was denied and the matter proceeded.

34Over the course of the seven hearing days, the Board heard considerable evidence with respect to the psychosocial factors that would be included in a new or updated Homestudy. The Board was provided copies of the SAFE Homestudy Report that was conducted in 2011 in response to the Applicants’ request to foster directly for the agency instead of the third party agency with whom they had been involved. At the time of completion of the SAFE Homestudy the Children and [Sister] had resided with the Applicants for three years. The Board was also provided with three Annual Foster Home Reviews dated December 2012, January 2014, and April 2015.

35The concerns that led to the Society’s decision to refuse to place the Children for adoption are similar to certain concerns raised in the SAFE Homestudy Report. These include: the foster mother’s disciplinary methods and anger management (particularly when experiencing stress); challenges working with the agency including training; and, issues relating to a busy household.

36Additional areas of concern that arose since the SAFE Homestudy include: two incidents of inappropriate physical discipline by the foster mother against [Child 2] in January and October 2014 (the latter having been verified by the investigating child protection agency); the Applicants previously questioning their ability to care for [Child 2] in the long-term the decreased access and deteriorating relationship between the Applicants and the kin; and, the Applicants’ religious views and the potential for conflict with the Children. The Board has considered all of the concerns set out above, as well as the related mitigating and circumstantial factors.

37The Board also heard evidence about the Applicants’ strengths, as described in the SAFE Homestudy, and the three Annual Foster Home Reviews including: the mutual love and attachment between the Applicants and the Children; the Applicants’ ability to be resourceful in finding and following through with treatment and support for Children’s identified needs; and, the encouragement that they provide the Children in response to their academic, health, behavior and other needs. The Board heard evidence from the OCL that both Children identify themselves as part of the foster family and that they wish to continue to reside with the Applicants and to remain in their home community and schools, although [Child 2] has recently expressed some confusion.

38During the course of the hearing witnesses were examined and cross-examined about the concerns identified in the SAFE Homestudy and Annual Foster Home Reviews, as well as the Applicants’ strengths and the Children’s needs and wishes.

The Relationship between the Board’s Mandate and the Homestudy

39Pursuant to s. 144 of the Act, the Board must apply the criteria set out in s.136(2) of the Act in order to make a determination with respect to the children’s best interests. Therefore, while it may have been helpful for the Society to complete an updated Homestudy within the two-month window that was provided, the results of such Homestudy would not have been determinative. The legislative factors and not the Homestudy categories are what govern the Children’s best interests. As the Divisional Court notes at paragraph 40 of Muskoka the Court recognises that the Board’s task is to assess best interests of the child and may place a child for adoption notwithstanding conclusions contained in a homestudy:

The Society also submitted that the Board’s decision was unreasonable because it has the effect of reducing, if not eliminating, the importance of the homestudy process. Again, we disagree. The fact that the Board disagreed with the decision of the Society, who based their decision on the homestudies, does not mean that the homestudy process has been undermined or eliminated. All it means is that the decisions made by the Children’s Aid Society in reliance on these home studies can be subject to review. Given the wording of s.144, this is the clear intention of the legislature.

40In this case the Board has an approved SAFE Homestudy, albeit from 2011 and completed in the context of a foster application rather than an adoption application. The SAFE Homestudy was child-specific and was conducted after the children had been in the Applicants’ care for three years. The SAFE Homestudy coupled with the Annual Foster Home Reviews and the considerable evidence presented at the hearing provide sufficient evidence to enable the Board to make a determination in this case.

41While the Society may disagree with the Board’s decision to proceed absent a new or updated homestudy, and the Society may disagree with the Board’s decision to place the Children for adoption with the Applicants, the final decision respecting the adoption lies with the Court. As determined by the Board in J.P. and M.P. v. Children’s Aid Society of Algoma (CFSA s.144), 2013 CFSRB 5 at para 20:

Moving forward, the Society must respect the Board’s finding about the best interest of the Child. Once the child is placed, it is open to the Society to form its views on how the placement is in fact going and to present its views to the Court in the report on the child’s adjustment… It is a new document based on what occurs in the actual placement. As the Court noted at para 42 of Muskoka it is then up to the Court to make the final decision about whether an adoption order will be issued or not.

Under s.144, the Board must decide whether the adoption application is in the child’s best interests. If it is, the child is placed for adoption for a minimum of six months. The child can be removed at any time during this probationary period, subject to a further right of review by the Board under subsection 144(1)(b). The approval of the adoption application and the adoption placement does not result in an adoption order. The adoptive applicants must apply to the court to adopt the child. If the Society continues to believe the adoption is not in the children’s best interests, it can indicate that in the director’s statement filed with the court. The ultimate adoption decision is within the exclusive jurisdiction of the court.

42The factors considered by the Board and the reasons for placing the Children for adoption with the Applicants are set out in detail below.

Criteria 1 and 2: The Children’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs and the Children’s physical, mental and emotional level of development.

43[Child 1] is described by various parties as an adorable, lively little boy. He has been diagnosed by his pediatrician and other physicians as having Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiance Disorder (ODD). He displays violent outbursts at times, including breaking a van windshield with a baseball bat, has difficulty moderating his behaviour and is on medication, Intuniv and Concerta, to help manage his ADHD. He is an excellent athlete and currently is in a competitive gymnastics program where he spends eighteen hours per week.

44Dr. [ ], the child’s pediatrician and Chief of Pediatrics at [Healthcare Services], testified that [Child 1] is “a work in progress”. She stated that ODD is a life-long chronic condition which no medication can reverse. It requires ongoing training in parenting techniques. She added that there have been some positive responses to the medication for ADHD but they have not been sufficient to help [Child 1] stabilize.

45[The Pediatrician] stated that she is strongly supportive of [Child 1]’s adoption by the Applicants. She would discourage a move which could be very traumatic for a child with ADHD, ODD, and a complex social history to adapt to a new environment. It would require him to expend a great deal of emotional energy which is already tapped out because he has so many challenges, including low self-esteem. She stated that it would be very difficult for him to be uprooted from the home he has known all his life.

46[The Pediatrician] testified that she was impressed by the Applicants’ devotion to the care of [Child 1] and their dedication to nurturing his emotional wellbeing. She noted that a stable environment in the Applicants’ home is paramount to sustaining the improvement in [Child 1]’s mental health.

47The Board heard from a number of witnesses that the care [Child 1] has received from the Applicants has been successful in allowing him to mature and stabilize his behaviour. They noted that the Applicants have been conscientious about monitoring [Child 1]’s health, including visits to the pediatrician and other health professionals, including Dr. [ ], psychiatrist, and the [Centre] , when his behaviour was of concern.

48[Child 1]’s gymnastic coach testified that when he first met [Child 1] several years ago he had temper tantrums, conflict with the other children, pushed boundaries, and felt like a victim although he was the aggressor. He is now a different person. He has the ability to focus and has mastered his behaviour and gymnastics at a competitive level. The coach stated that he thought it would be detrimental to [Child 1] to move from his current home and the gymnastic program which he loves and which has been so beneficial to him.

49The Board heard that the Society and the kin family have concerns about [Child 1] possibly spending too much time at gymnastics and missing one half-day of school per week. They are concerned that [Child 1] cannot afford to miss this time at school and that he may have too many extra-curricular activities.

50The Board heard testimony from [Child 1]’s pediatrician and gym coach which supported the position that competitive gymnastics were a positive outlet for [Child 1]’s hyperactivity and likely helped improve his school performance. The gym coach noted that the absence of stated concern by [Child 1]’s school principal appears to support this position.

51At the hearing, [Child 1]’s aunt acknowledged that she had never seen [Child 1]’s acting-out behaviour in her home. She was surprised to hear about his concerning behaviour. In answer to a question from the Board, she indicated that she would talk and reason with [Child 1] if he were having difficulties.

52OCL counsel noted that [Child 1] explained that he tried to keep his behaviour under control while visiting his relatives for the weekend. She also noted that [Child 2] has expressed the concern that her aunt could not manage [Child 1]’s behaviour.

53[Child 1]’s aunt testified that she has concerns about [Child 1] possibly being over medicated; she saw him as lethargic during visits. She reported that on one weekend visit she did not provide him with his medication. She testified that, despite her reluctance, she would follow the physician’s orders for medication if [Child 1] was living with her.

54The Board is of the view that the kin family, although sincere, has not had the experience of dealing with [Child 1]’s behaviour and outbursts, and has not demonstrated a full understanding of his complex needs, including the need for medication.

55The Board, having heard the submissions of the parties, is of the view that [Child 1]’s physical, mental, and emotional needs are being met by the Applicants and that he is receiving appropriate care to meet those needs, as evidenced by his positive social and academic development in the face of ADHD and ODD, and by the attachment he feels towards the Applicants.

56[Child 2] is described as petite, engaging, and seemingly younger than her age. [Child 2] has been diagnosed by her pediatrician with ODD, ADHD, and poor impulse control. She suffered sexual abuse by her mother’s partner, [Child 1]’s father. [Child 2] was apprehended twice; once after the sexual abuse, and again after a return to her biological mother. The second apprehension occurred because of care issues: [Child 2] not going to school, being cared for by the mother’s partner, and talk of her going to her father in [Europe] to be placed in an orphanage.

57[Child 2] has exhibited signs of trauma, including incontinence and sexualized behaviour, particularly in the use of social media. She has exhibited sexualized behaviour at home, at her aunt’s home, and at school. [Child 2] has stated that she has felt unloved and that people were unfair to her. After being in the Applicants’ home for a short while she acknowledged that they were fair to her. [Child 2] has been reported to be oppositional, unstable, has exhibited stealing and lying behaviours, and has been confrontational in tone. According to Dr. [ ] she has shown signs of Post-Traumatic Stress Disorder (PTSD) and attachment issues.

58[Child 2] has attended the [Trauma Centre] and [a Centre for Kids]. The foster mother has reportedly been conscientious about locating services and programs to meet [Child 2]’s needs. According to testimony at the hearing, over time [Child 2]'s behaviour has stabilized and she enjoys her friends and numerous activities in the community, including musical theatre and skateboarding.

59Witnesses for the family testified that the Applicants have been very patient and consistent with [Child 2] and have protected her in the face of concerns regarding her acting-out behaviour, particularly through social media.

60[The Pediatrician] testified that [Child 2] comes from a difficult psychosocial background and has ongoing academic struggles. She stated that [Child 2] has blossomed under the care and love of the Applicants. Her difficulties have diminished since enrolment in a number of programs to help her with socialization and self-regulation.

61[Child 2]’s acting-out behaviour was a source of concern to the Applicants and they previously were ambivalent about adopting her. They testified that they were unsure whether they could meet her needs. At one point, the foster mother contemplated the possibility of [Child 2] moving to a residential treatment program for up to 6 months; however, the Society indicated that this was not her decision to make. [Child 2] was aware of the Applicants’ ambivalence towards adopting her.

62At the hearing, the Society noted its concern that there had been two incidents of physical discipline, in January and October 2014, where the foster mother took hold of [Child 2]’s face in her hands in an attempt to get her to listen. These incidents occurred at periods of emotional stress for the foster mother, one when she was undergoing cancer treatment, the other when the foster grandfather was dying.

63The Society also noted there had been other incidents of inappropriate discipline such as giving [Child 1] green vitamin liquid to drink. Additionally, there was an incident in the home where an adult former foster child assaulted the foster mother. That incident was not reported to the Society, and the former foster child continued to babysit the children. The Society noted that in order for the Society to place the Children for adoption in this home the Applicants would require an exemption from the Executive Director because of these verified incidents.

64The Board notes that the foster mother has acknowledged that her behavior was unacceptable and she is remorseful. The foster mother testified that she has undergone counselling to manage stress and anger. She added that [Child 2] has said many times that she does not understand why these incidents were often being mentioned, and that she wished to move on from them. The OCL clinical investigator testified that [Child 2] reported that she and the foster mother had discussed the incidents with their counsellor at [Centre for Kids] and they had apologized to one another.

65The Board notes that there is no formal plan for [Child 2] at this time. Given her age and the continuity and stability that she requires, the Board concludes that [Child 2]’s physical, mental and emotional needs would best be met by the Applicants who have demonstrated the interest and experience in meeting them, and who wish to provide the continuity and permanence she requires.

Criteria 3 and 4: The Children’s cultural background. The religious faith in which the Children are being raised.

66The Children’s kin family is first generation Portuguese. Until recently the Applicants maintained close ties with the Children’s kin family, including arranging trips together. Although, the relationship has recently deteriorated, the Applicants state that they sincerely wish to resume the relationship. They fully accept the Children’s Portuguese background, as evidenced by their openness to celebrating holidays with the kin family, including having Portuguese food. The Children also speak by telephone with their mother and kin family members.

67The kin family provides an immediate cultural context for the Children. The kin family’s first language is Portuguese which is spoken at home. They also speak English. [Child 1] and [Child 2] do not speak Portuguese.

68The Children attend a Roman Catholic elementary school and have taken part in the religious occasions there. The Applicants support the development of the Children’s Catholic faith, according to their own wishes. The Applicants themselves belong to an interdenominational Christian Church which the Children also attend. The Applicants state that the Children very much enjoy the church youth activities and are a part of the church community.

69The Applicants have strong religious views; there has been evidence that these views have proven to be a source of conflict in their dealings with their adolescent children. The Applicants testified that they know that the Children may not follow their beliefs but that they would support them notwithstanding, including providing birth control. They acknowledge that their disagreement over [Sister]’s pre-marital sexual activity was the reason for her leaving their home, and regret that they did not have the opportunity to resolve the issue with her.

70The Board is of the view that the Applicants recognize and respect the Children’s cultural background and religious faith, and will encourage their continued involvement with their kin family.

71The Board concludes that issues relating to the cultural and religious backgrounds of the Children do not provide sufficient reasons to justify a move from the Applicants to the kin family in light of the attachment of the Children to the Applicants. The Board strongly recommends that the link between the Children and the kin family be maintained and nurtured.

Criteria 5, 6, 7 and 9: The importance for the Children’s development of a positive relationship with the parent and a secure place as a member of a family. The Children’s relationship to a parent, sibling, relative, other member of the Children’s extended family, or member of the Children’s community. The importance of continuity in the Children’s care and the possible effect on the Children of disruption of that continuity. The Children’s wishes.

72According to the OCL lawyer and the OCL clinical investigator who interviewed [Child 1] during the hearing, [Child 1] is adamant about wanting to remain with the Applicants. This is the only home he remembers and he is totally bonded to the Applicants. He feels that this is the right family for him; there is nothing he doesn’t like about living there; the Applicants make the right decisions for him. [Child 1] refuses to discuss a possible move and expressed the wish not to visit his kin family until the matter of the adoption Application was settled.

73The Board heard testimony that [Child 2] has felt less secure in the Applicants’ home because of the traumatized state in which she arrived and because of her behavioural challenges during her time with the Applicants. Also, she has been aware of the Applicants’ past ambivalence about a plan to adopt her. The foster mother testified that recently [Child 2] has become more confident in her place in their family.

74The Applicants testified that they wish to adopt [Child 2] and provide her with a loving home. They indicated that the recent events surrounding [Sister]’s departure and their Application to adopt have brought them all closer together. The Applicants indicate that because of changes in their financial situation they now no longer require financial support from the Society in order to meet all of the Children’s needs

75The Board observes that the kin family has only lately expressed interest in having [Child 2] stay with them. The aunt and uncle in Ontario were previously involved in raising their own four children and also had concerns because their three sons, ages 10, 18 and 19 are at home. They were concerned that [Child 2]’s sexualized behaviour might be problematic in that setting, as there was one concerning incident in the past.

76As mentioned above, the Society concedes that there is no formal plan for [Child 2] at this time. Although the Ontario kin family has suggested she could live with them on an interim basis, or possibly with her aunt in the United States, to date there is no formal application from either family.

77Through her lawyer, [Child 2] has recently expressed some confusion relative to her desire to live with the either the Applicants or her kin families. Her lawyer suggested that this is possibly because the kin family has put some pressure on [Child 2], contrary to the instructions of the Society. The OCL noted that during three previous interviews, [Child 2] stated that she wished to be adopted by the Applicants and had felt that way since age twelve. [Child 2] states that she likes her school, her friends, and her community and wishes to remain there. Most importantly, she states that she does not want to be separated from her brother.

78The recent departure of [Sister], her older sister, was difficult for [Child 2] and she has expressed a desire to see her more often. A recent meeting of the sisters arranged by the Society was a positive experience for [Child 2].

79The Board notes the importance for [Child 2] of a positive relationship with a parent and a secure place as a member of the family. This is paramount to her wellbeing and future development. The Board notes that there is considerable ambiguity in the Society’s kin plan for [Child 2], that the prospect of her residing in a family with three male cousins could be problematic, and that the prospect of a move provides considerable anxiety for [Child 2].

80The Board heard testimony from the Children’s aunt who stated that she would be supportive of the children’s wishes wherever they preferred to live, as would her husband.

81The Board concludes that the evidence indicates that both [Child 1]’s and [Child 2]’s emotional ties are primarily to the Applicants and their emotional wellbeing will be best served by their remaining with the Applicants in a permanent adoption. However, as noted above, their continued relationship and interaction with their older sister and their kin family is extremely important to their continued wellbeing, and should be encouraged.

Criterion 8: The merits of a plan for the children as proposed by the Society.

82The Society’s reasons for wishing to move the Children are based on the following concerns:

• the foster mother’s history of inappropriate discipline with the children and the concern regarding her anger management when under stress;

• the breakdown in the relationship between the Applicants and the kin family and the resulting reduction in the children’s time with their relatives;

• the Applicants’ approach to child rearing, including the foster mother’s tendency to dwell on medical diagnoses and her level of understanding of the children’s needs; their religious views; and the possible overscheduling of the children;

• the Applicants’ deteriorating relationship with the Society and its workers; the Society workers’ view that the Applicants were behaving more like parents than foster parents, including a lack of responsiveness on the part of the Applicants regarding documentation, relief parenting, and mandatory training.

83The Society submitted that based on their concerns and the willingness of the kin family to parent [Child 1], it determined at the meeting of July 9, 2015 that it would “draw a line in the sand” and plan to move [Child 1] to the kin family. It acknowledged the uncertainty of a plan for [Child 2].

84The Society submitted that the kin family has had the positive experience of raising four children. It noted that kin families generally begin with less specific knowledge regarding children’s medical and special needs but gather that knowledge as they proceed. It anticipated that this kin family would follow this pattern. It acknowledged that the kin family has no experience raising children with special needs, nor have they observed the Children’s challenging behaviours during access visits.

85The Society acknowledged that the assessment for the kin family is incomplete. It noted that the kin family has a history in 2002 of a verified incident of violence between the parents and physical discipline of their children. The family would require exemption by the Executive Director in order to be approved as a kin placement.

86With regard to the Applicants, the Society acknowledged that annual Foster Home Reviews from December 2012, January 2014, and April 2015 show that in all areas of review the Applicants met or exceeded expectations.

87The Society also acknowledged in relation to the strain between the Applicants and the Society that a large number of Society workers from different departments had interacted with the Applicants’ family, not always consistently. Additionally, there were issues of service to the foster parents, specifically a delay in the provision of a resource worker from April to September 2015 and a delay in responding to the foster parents’ Application to adopt, including a written notice refusing the Application. Further, the Society conceded that it had not carried out an Adoption Homestudy for the Applicants.

88With regard to the issues raised by the Society, the Board notes that the foster mother has acknowledged that the incidents of discipline were inappropriate and that she is remorseful. She indicates that she has undergone counselling and that her health issues have resolved.

89With regard to the issue of medicalizing the Children’s situation, the foster mother testified that in understanding the diagnoses of ADHD she has been able to deal with the Children’s behavior more thoughtfully. The Society expressed concern that the foster mother was of the view that the Children had Fetal Alcohol Syndrome, although there were no positive diagnoses because of the lack of information regarding the biological mother’s prenatal history. In response, the foster mother indicated that the Society worker specializing in FAS gave her invaluable assistance in explaining the nature of the syndrome and suggesting that she work with the Children as if they had the syndrome even though there were no firm diagnoses. This information allowed her to understand the Children’s inability to learn from experience and the need to manage their environment rather than their behavior.

90The Board heard the Applicants acknowledge that they hold religious views but that they are willing to support the young people in their home, even if they are in disagreement. The Applicants note that their concerns arose from their fear that the Children are vulnerable and can be taken advantage of, and that they are too young to take responsibility for unwanted consequences.

91The Board also notes the Society’s concerns regarding its strained relationship with the Applicants and recognizes that there were shortcomings on the part of both the Society and the Applicants. Although understandable, the Board is of the view that these issues should not detract from the issue of continuity and security for the Children. It notes that post-adoption the relationship of the Society and the Applicants will not be an issue.

92At the hearing, the OCL submitted that the Society had missed the mark in this matter. She stated that this is a situation of very vulnerable children, related to trauma and loss. The most important factors in the Children’s best interests were permanence and unconditional love and support. She submitted that the Applicants would take care of these Children, see them through anything, no matter how problematic, and love them.

THE BOARD’S CONCLUSION

93The Board has considered the best interests of the Children, including the importance of the least disruptive course of action. It finds that the Children have received loving, active and thoughtful care by the Applicants in the home they have lived in for the past seven years. The Children consider this their permanent home and community.

94The Board takes into account the concerns of the Society including the disciplinary incidents which have been acknowledged as not acceptable and have been addressed by the Applicants’ involvement in counselling and acquired insight.

95The Board recognizes the genuine love and interest of the kin family for the Children. However, the evidence suggests that a move at this time is not in the Children’s best interests and that the kin family’s continued openness to access to the Children is important. The Board heard evidence from the Children’s aunt that she doubted whether the relationship with the Applicants could be repaired. The Board strongly encourages the kin family to keep the Children’s interests in mind as they go forward.

96The Board is of the view, given the ages of the Children, their stated preferences, and the evidence that shows that the Children’s complex physical, mental, and emotional needs are being met by the Applicants, that the Children’s desire and need for continuity and permanence should supersede all other considerations, and that they should be adopted by the Applicants.

97The Board concludes by recommending the following:

• The Applicant foster mother should continue to engage in counselling related to coping with stress and anger management;

• The Applicants and the kin families should work towards resolution of their concerns so that the Children can enjoy regular access to their sister and the kin family. The Society could assist in enabling this, possibly through mediation;

• The Applicants should consider utilizing the services of the Society’s Resource Family Support Worker, [ ], with whom they testified they worked well, for transition assistance during the adoption process;

ORDER

98On October 16, 2015, the Board rescinded the decision of the Society to refuse the application of the Applicants to adopt the Children and ordered that the Children be placed for adoption with the Applicants.

CONFIDENTIALITY ORDER

99Parties and their representatives must not use, share or disclose any documents or information provided or used in this application with anyone including the media or on-line. Any documents or information shared by the parties must be used only for the purpose of the hearing of this application by the Board.

ANDREA HIMEL

__________________________

Andrea Himel

Presiding Member

CELIA DENOV __________________________

Celia Denov

Panel Member