G.B. and R.B. v. Children’s Aid Society of Toronto, 2015 CFSRB 57

CHILD AND FAMILY SERVICES REVIEW BOARD

G.B. and R.B.

v.

Children’s Aid Society of Toronto

REASONS FOR DECISION

Date: December 24, 2015

Citation: 2015 CFSRB 57

Indexed as: G.B. and R.B. v. Children’s Aid Society of Toronto (CFSA s.144)

INTRODUCTION

1This is an application by GB (“Applicant 1”) and RB (“Applicant 2”) also referred to as (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 Children’s Aid Society of Toronto (the “Society”) which refused their application to adopt [ ] (“Child 1”) and [ ] (“Child 2”) also referred to as (the “Children”). This application was heard by the Board on May 28, July 8, 9, 10, November 17 and November 20, 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 they can provide the quality of care required to meet the complex needs of the Children. The Children’s older brother has been in the permanent care of Applicant 1 since 2005. The older brother also has special needs and has thrived while in the Applicants’ care. The Applicants wish to reunite the siblings. They query the findings of the recent home study which determined the lack of suitability of the Applicants’ home. The Applicants believe that the placement of the Children with them was terminated due to conflict between one of the Applicants and the Society.

3It 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 impact on the older brother of moving these high needs Children into the home and the ability of the Applicants to manage all three children. The Society also has concerns about one of the Applicant’s ability to communicate effectively and his mental health. Finally, the Society has concerns about the ability of the Applicants to work with the Society regarding the care of the Children. The Society currently expressed no formal plan for the Children.

4The Board has determined that the best interests and future wellbeing of the Children outweighs the concerns of the Society and that the Children should be placed with the Applicants for adoption.

5On December 17, 2015 the Board rescinded the decision of the Society to refuse the adoption application. These are the reasons for that decision.

BACKGROUND

6In 2000, Applicant 1 met and befriended the person who became the biological mother of the older brother. They became good friends over several years. When the older brother, her first child, was born on April 4, 2004, Applicant 1 assisted in the care of the child. When the Society apprehended the older brother, Applicant 1 and his mother presented a plan of care for the child to the Society. A Kinship Service Study was completed by the Society in 2004 and the older brother was placed in the family home of Applicant 1 with a supervision order. On September 19, 2005, Applicant 1 and his mother received permanent custody of the older brother through a court order. Society involvement was terminated at that time.

7The [Regional] Clinical Service assessed the older brother in 2010 as having a diagnosis of [ ] Disorder which is characterized by significant central nervous system dysfunction including difficulties with attention, significant difficulties with sensory processing and modulation of sensory input, problems with executive functioning, and significantly delayed fine and gross motor skills. Due to these limitations, the older brother presents with social and behavioral challenges in both the home and the school. The Applicants and their extended family have successfully put in place tools, strategies, programs and resources to assist the older brother in his day to day functioning. The Applicants have been described by the Society as effectively meeting the special and complex needs of the older brother.

8The Children were also assessed as “high” needs children from birth. Child 1 was born on [date of birth] and Child 2 was born on [date of birth].

9Applicant 1 had been in a relationship with Applicant 2 since 2009. Both Applicants were parenting the older brother since that time and they together presented a plan of care to the Society for the Children.

10The Applicants applied to become a Kinship Care Family for the Children in February 2011. A SAFE Home Study began in March 2011 and was completed on May 27, 2011. The Home Study stated that both the Applicants “have notable personal strengths and did not identify any concerns that might impede their ability to parent the Children”.

11At the time the 2011 Home Study was prepared the Society was in the midst of a trial with the biological mother and sought Crown Wardship with no access for the purpose of adoption of the Children.

12In April 2011, the court granted Crown Wardship for the purpose of adoption. The biological mother appealed the court’s decision in May 2011. The Society however, continued with the plan to place the Children with the Applicants in “kinship fostering with a view to adopt”. The 2011 Home Study also indicated that “the Applicants intended to adopt the Children as soon as the appeal was dealt with and the Children were free for adoption.” The 2011 Home Study concluded that the Applicants be approved for Kinship Care.

13The Children moved to the Applicants home on May 27, 2011. Between May 27 and September 7, 2011, the Children were reportedly doing well. The placement was viewed as being beneficial to both the Children and the older brother.

14The Applicants moved to a larger home outside Toronto to accommodate the needs of the Children. The Applicants live in the two upper floors of a detached home on a large lot where there are two plus two bedrooms. Applicant 1’s parents live in a basement apartment in the home to be available to support the child care needs of the family as required. The Applicants moved in stages between August 17 and 25 although the family was not settled into the home completely for some time due to the need for renovations.

15Beginning with a home visit by the Society on September 7, 2011, the relationship between the Applicants and the Society became conflictual. The newly assigned resource worker came to the home on that day to complete the Home Safety Checklist. The Applicants were still in a state of transition, hadn’t fully moved into the new location and the home was in disarray at the time. The resource worker indicated that there were numerous areas of non-compliance with the checklist but was particularly concerned about the fact that all the family members were sleeping in the same room.

16A more experienced resource worker (2) from the Society was mentoring the newly assigned worker (1) and, after hearing the complaints, she made a telephone call to the Applicants to follow up on the concerns. An argument ensued between resource worker 2 and Applicant 1. Applicant 1’s response was viewed by resource worker 2 as “defensive” and that he had “fabricated information”.

17An email was sent on September 12 by resource worker 1 to the Applicants outlining the necessary changes and renovations that were required in the home for there to be compliance with the Home Safety Checklist. The expectation was that these changes occur by September 29, 2011.

18On September 22, 2011, the [other Society] reported to the Society an incident that took place at a medical centre in their jurisdiction. Applicant 1 had taken one of the Children to an appointment with the occupational therapist at that centre and a misunderstanding ensued between Applicant 1 and the medical secretary related to the ability of Applicant 1 to participate in the child’s appointment. Various interpretations of this incident ensued.

19On September 29, 2011, a meeting took place in the family home between resource workers (1 and 2), the Applicants and Applicant 1’s mother. The Society raised issues related to the communication difficulties it was experiencing with Applicant 1, the need for compliance with the Home Safety Checklist and the [Region] incident of September 22, 2011. The Applicants raised the confusion that existed for them about the status of the home as kinship care, foster or adoption. On the same day, after this meeting, Applicant 2 wrote a letter to resource worker 1 with documentation to indicate that the Applicants were in compliance with the Home Safety Checklist.

20On October 12, 2011 the Applicants were notified that the Society’s resource worker 2 would be the main contact for the family in an effort to circumvent any miscommunication between the Society and the Applicants.

21Internal written communication and meetings initiated by resource worker 2 with supervisory staff took place at the Society to outline the concerns related to the Applicants. The Society internally acknowledged these service concerns. A meeting was called between the Applicants, the resource workers, the children’s service worker, a member of the foster parent communication team and supervisory staff for October 27, 2011 at the office of the Society. The agenda included: communication difficulties between workers and Applicant 1, the September 22, 2011 [Region] incident, the importance of teamwork, possible concerns regarding the Applicants’ relationship with each other and the request to have Applicant 1 sign a consent for the Society to speak to his doctor with respect to his mental and emotional health.

22Applicant 1 wrote a letter to the Society on October 28, 2011 indicating his desire to work with the Society to assure the successful placement of the Children and he apologized for his role in any miscommunication. He also requested a change in worker referring to resource worker 2.

23On that same day, Applicant 2 also sent an email to the Society outlining his difficulties in working with resource worker 2. He also requested a change in worker noting that this is the first Society worker with whom there has been a breakdown in the relationship.

24On November 24, 2011, a second meeting took place at the office of the Society as a follow up to the service concerns addressed in the October 27, 2011 meeting. Attendees included: the Applicants, the Society’s children’s service workers, members of the foster parent communication team and supervisors. The Applicants were informed of the closure of their foster home. The Children were removed from the Applicants’ home on November 28, 2011. The Foster Home Closing Summary indicated that the Applicants should not be considered for fostering in the future due to the Society’s concerns about team work, communication and honesty with the foster parents.

25Between September 7 and November 28, 2011, the Society did not identify any protection concerns or concerns regarding the quality of care of the Children while they were in the care of the Applicants.

26The Applicants continued to pursue the Society’s internal complaint processes to seek remedies to the closure of their foster home. In 2014, the Applicants also continued to seek the opportunity to adopt the Children. The Society requested that [a third society] complete a home study to assess the Applicants’ suitability to adopt the Children. The home study was initiated in the early part of 2014 but a “child specific” home study was not undertaken by the [third society]. The Society subsequently contracted with a Private Adoption Practitioner to complete the SAFE Home Study with the Applicants.

27The Private Adoption Practitioner completed the Home Study on April 1, 2015 and concluded that the Applicants’ application be denied. On April 22, 2015, the Society notified the Applicants in writing of its refusal of their application to adopt the Children.

28The Applicants filed their application challenging the decision of the Society with the Board on May 9, 2015. The Children have remained in foster care pending the outcome of this proceeding.

ANALYSIS

29The 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.

30The 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.

31In 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.

32The 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,

33The 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 Jurisdiction

34In 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)

The 2015 SAFE Home Study Report

35Over the course of the six day hearing, the Board heard considerable evidence with respect to the SAFE Home Study Report of 2015. The concerns that led to the Society’s decision to refuse to place the Children for adoption with the Applicants are the concerns identified in this Report. These include: the impact that the adoption placement of the Children would have on the older brother due to their high needs; Applicant 1’s ability to communicate and his mental health; and the Applicants’ ability to work effectively with the Society. Additionally, the Society placed emphasis on its communication with Applicant 1 particularly at the time of and subsequent to the introduction of the Home Safety Checklist on September 7, 2011. They viewed the interactions of this Applicant to be purposefully inaccurate and fabricated.

36The Board has considered all of the concerns set out above.

37The Board also heard evidence about the Applicants’ strengths and parental capacity as outlined in the SAFE Home Study of 2011, the Kinship Care Homestudy of 2004 and also the Safe Home Study of 2015. They were described as resourceful in finding and following through with assessment, treatment and supports for all three children’s identified needs. These reports referred to the exceptional progress made by the older brother who has been thriving since entering permanent care with the Applicants in 2004.There were also reports of the Applicants’ deep commitment to the development and wellbeing of their children and family; their engagement and leadership with other families and resources in the local community supporting complex needs children; and their capacity to engage effectively with school, medical practitioners and therapeutic resources on behalf of themselves and their family.

38During the course of the hearing witnesses were examined and cross-examined about the concerns identified in the SAFE Home Study Report of 2015, as well as the Applicants’ strengths and the Children’s needs.

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. The legislative factors and not the SAFE Home Study categories are what govern the Children’s best interests. As the Divisional Court notes at paragraph 40 of Muskoka, the Board’s task is to assess best interests of the child and it 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 Home Study Report from 2015. The SAFE Home Study was child-specific and was conducted 3.5 years after the Children had been removed from the care of the Applicants. The 2015 SAFE Home Study coupled with the previous Home Studies 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 place the Children for adoption with the Applicants, the final decision respecting the adoption lies with the Court. As the Board said 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.

43Child 1, age 6 years, is described in the written evidence and the testimony of witnesses as sweet, with a good sense of humor, social, friendly, loves to cuddle and be cuddled, is caring towards others and has some well developed self-care skills. Some of Child 1’s limitations include: ADHD, difficulty with transitions, invades other’s personal space, has oppositional tendencies, demonstrates aggressive play; is very nervous and fearful, becomes emotionally and behaviorally dysregulated without warning at home, is impulsive and distractible, has disturbed sleep patterns and demonstrates obsessive/compulsive features. He has not been diagnosed with FASD and he is at the low average range for intelligence and functioning. These clinical characteristics determine that Child 1 has complex needs that require a structured, consistent, and stable long term environment that has therapeutic supports available to address his multiple needs.

44Child 2, age 5 years, is described by written evidence and the testimony of witnesses as sweet, petite, precocious and bubbly. She is socially and developmentally immature and is delayed in meeting her developmental milestones. She also has speech and language deficits. However she is making good progress in her cognitive and motor development. Furthermore, her verbal reasoning and non-verbal skills are within the normal range. Child 2 has poor adaptive functioning and needs external supports to manage her day to day functional activities which contribute to her need for specialized supports and care. She is not enrolled in school due to these high needs. Like Child 1she also needs a stable, consistent and nurturing environment.

45The Society’s children’s service worker testified in May 2015 that both Children were placed in a specialized foster home in December 2014 due to their need for structure and therapeutic supports. Available to the foster home is a child and youth worker and clinical staff. This placement was contracted to an outside paid resource by the Society. Since that testimony, there was no evidence available regarding the Children’s’ current wellbeing and circumstances.

46The Society was concerned about the impact that the adoption placement of the Children would have on the older brother due to their high needs and the Applicants’ ability to manage the three children.

47The Children were considerably younger when placed with the Applicants in 2011 (an infant and a toddler) and the demands on the Applicants at that time were significant due to their age and stage of development and the complexity of their emerging special needs. The older brother at that time was latency age with a range of social, emotional and behavioral needs related to his neurodevelopmental disorder.

48Evidence presented during the hearing indicated that there were no protection concerns or concerns about the quality of care of all three children while they were in the care of the Applicants for the six month period in 2011.

49The Applicants had put in place numerous services and supports to address the multiple needs of the Children. They enrolled Child 2 in occupational therapy, play groups and play therapy immediately in anticipation of transitioning out of the Society. They attended programs for parents to assist them in learning skills to apply in their home to meet Child 2’s special needs. Applicant 1 attended all her appointments which were numerous. Child 1 was enrolled in speech and language therapy, play therapy, day care and specialized assessments. They sought out and transferred the Children into assessment and treatment services in their local area. They straddled two communities for services to ensure the delivery of services from one community to the next was seamless. They applied the skills, tools and resources they had come to understand while parenting the older brother. They maintained their involvement as members of [Region 2] Families for Families. The Applicants both testified that they were amenable to external supports and relied on agencies, including the Society, to provide the resources they required to care effectively for the Children.

50The Board heard evidence that Applicant 1 has some training in early childhood education and had worked for a period of time in daycare centres with younger children. Applicant 1’s mother has a teaching degree and taught for a very short period of time in the public school system. They believe that this experience has assisted them in understanding and caring for the Children.

51Testimony from the Applicants and Applicant 1’s mother was consistent about the challenges that they faced with the introduction of the Children into their home. However, they quickly developed a routine with specific roles for each care giver with each Child which allowed consistency and stability within the home. They were each cognizant about the potential displacement of the older brother in these new circumstances and therefore ensured that his routines remained consistent and that adults were available to provide additional support as required. Applicant 1 also had a leave from work so there was a consistent caregiver in the home.

52Testimony from the Applicants and Applicant 1’s mother demonstrated their deep understanding and awareness of the older brother’s needs and wishes and their unwavering commitment to having those needs addressed. They have managed to date the challenges of raising a child with high needs and have reconfigured their home and life circumstances to ensure his physical, emotional, social and educational development and wellbeing. No one can predict the nature of the adjustment required when children join a family especially children with complex needs. However, the Applicants have described safeguards and strategies the family have put in place to assist the older brother when his siblings becoming an active part of his life again. Applicant 1 will take a parental leave as required and there will be three parents routinely in the home until the Children are stabilized. When Applicant 1 returns to work, the family will ensure there is appropriate child care available at all times for all children making certain that meaningful therapeutic supports are built in as required.

53Evidence from a number of sources indicated that it is the older brother’s wish to be reunited with his siblings in his home. He views himself as having the maturity to assist with their care. He also has a long standing relationship with a counselor whom he trusts at a support program to assist with the reintegration process.

54The Adoption Supervisor testified that the Society builds support into the homes of adoptive families for the probationary period which can be up to one year, particularly if there are children with special needs. This support may involve a resource worker, a child and youth worker, counseling and training related to attachment disruptions and other therapeutic resources. The Applicants may take advantage of these services given their amenability to the use of external resources.

55The Board, having heard the submissions of the parties, is of the view that the Applicants have the capacity and the adequate supports required to manage these high needs Children and will take the necessary steps to mitigate any harmful impact on their son, the older brother. The Board concludes that the Children’s physical, mental and emotional needs would best be met by the Applicants who have demonstrated the interest and experience in meeting them.

Communication Difficulties and Mental Health Concerns

56The Society has concerns about Applicant 1’s ability to communicate effectively and his mental health, which by inference, may affect his ability to meet the Children’s physical, mental and emotional needs and wellbeing.

57The SAFE Home Study Report of 2015 outlined a number of incidents in which it appeared that Applicant 1 was confused in his communication with Society workers or was fabricating information in an effort to defend his position when challenged by a worker about an issue or circumstance. The main examples cited in the Report were: the renaming of the adopted children; denial that he had been on ODSP; the signing of adoption papers with the Society to adopt the Children and conflicting information about medical or psychiatric diagnoses and the resistance to signing consent forms to access this information. Other examples were identified.

58The Private Adoption Practitioner described Applicant 1’s communications:

(A)s difficult to follow at times. He can become very detailed in answering questions, offering information to indicate his knowledge in a particular area…..he likes to present himself in a positive light, and at times it appears that he may exaggerate his accomplishments to be seen as intelligent and successful. It is felt by this writer that Applicant 1 is not always truthful about information when he feels he is being judged in any way or when the information he is giving is challenged.

59The Private Adoption Practitioner testified that if she challenged Applicant 1 to clarify things, there was confusion. She gave the example of trying to get consents for the doctors. She testified that it was difficult to determine who the primary physician was. The person who was identified as Applicant 1’s family physician for 34 years told her he had limited recent contact with Applicant 1 and that there was no psychiatric diagnosis that he was aware of. When she tried to reach another physician who had been following Applicant 1 for a number of years, the Applicant first consented then appeared to withdraw his consent. She testified that Applicant 1 provided information about a diagnosis of depression but then couldn’t recall when or who made that diagnosis. She testified that at “the very base was some form of truth to what he was saying”. The Private Adoption Practitioner testified that this miscommunication, exaggeration, convoluted pattern of communication, and confusion was related to a mental health issue. She testified that “she didn’t have a handle on it”; “she did not have a diagnosis;” “her background was not in mental health”.

60When asked in cross examination if she sought consultation to assist her understanding of what she believed was a mental health issue, she testified that she hadn’t. When asked if she requested that there be a psychiatric consultation for Applicant 1 to offer clarification related to her concerns, she testified that she did not pursue that.

61The Society identified communication difficulties between workers and Applicant 1, and the apparent resistance on the part of Applicant 1 to sign consent for the Society to speak to his doctor with respect to his mental and emotional health as significant contributing factors to the closing of the foster home.

62Evidence presented by the Society and the 2015 SAFE Study Report linked Applicant 1’s pattern of communication with mental health concerns. However, when medical records combined with the testimony of Applicant 1 and his mother were provided as evidence, there was no indication of a mental health concern other than short term situational depression at times of major life crises or transitions. There was an assumption that the communication difficulties were linked to mental health concerns. However, there was no clinical evidence provided to the Board to validate this assumption.

63The testimony of the Applicants and the mother of Applicant 1 did offer clarification and put in context many of the identified incidences of miscommunication, confusion and misunderstandings. In particular, under oath, Applicant 1 conscientiously reviewed his understanding of the sequence of events and circumstances for a number of incidents that were considered by the Society to be untruths or blatant contradictions of information. One example is when cross examined about speaking to the Minister of Child and Family Services, Applicant 1 became confused during his testimony. Through cross examination, it became clear that he had called his MPP who contacted senior officials of the Ministry, perhaps the Minister’s staff, and someone from that Ministry had responded to his complaint. He indeed had not talked to the Minister but had spoken to a staff person from the Ministry. Similarly, regarding whether he had given and then withdrawn consent to speak to one of his physicians, Applicant 1 stated that he had given the consent but the physician refused to speak to the Society so the consent was withdrawn.

64Applicant 1 explained in his testimony, the confusion regarding his conditional [ ] degree which he was unable to produce; the length of time he was away from home working at the Olympic Games; the periods of time he was off work for Long Term Disability or parental leave; the reasons he chose not to be a daycare worker; the reasons for seeking funding from ODSP as a support to the Children, the reason for the misunderstanding that the family could rename Child 1 while in their care, the sequence of events that led to the confusion related to the signing of consents and the incident at a [Region] medical centre when Applicant 1 was taking Child 2 to an occupational therapy appointment and there was confusion regarding the name of the Child between the medical secretary and the Applicant. These misunderstandings formed a pattern of communication that was problematic between Applicant 1 and the Society. These misunderstandings were also cited in the SAFE Home Study of 2015.

65Evidence provided by [Doctor], Neurologist, and testimony provided to the Board by Applicant 1 and his mother revealed that Applicant 1 had two surgeries during adolescence related to arteriovenous malformations (AVM) in the brain. This resulted in damage to his frontal lobe. The neurological report states that:

the stress of these interviews (vicissitudes of adoption) and challenges has likely brought out his communication variations which may be misrepresented as conscious reluctance to cooperate. I see no evidence that this is the case. I do not believe that these speech abnormalities will affect him in any way with respect to care, day to day activities and childcare.

66Applicant 1 testified that he had learning disabilities and a “perfunctory memory problem” related to the AVM and the brain surgeries. He also described himself as a visual learner. He testified that he put tools in place to assist with his understanding and learning style such as the use of electronic devices. Applicant 1’s mother and Applicant 2 testified that they had developed strategies of communication with Applicant 1 for those times in which he was under stress and became confused or had difficulty finding his words. They testified that they had to explain things at times in a number of different ways so that Applicant 1 understood the intent and content of the communication. Applicant 1 gave examples in his testimony in which he would problem solve ways of understanding and responding to difficult or stressful situations. One example was related to a disagreement he had with his partner about a damaged garbage pail and one was related to a potential dispute with a customer on his TTC bus. Both examples offered insight to the Board about Applicant 1’s cognitive limitations and communication deficits and his efforts to compensate for those limitations.

67The explanations for the numerous misunderstandings and miscommunications between Applicant 1 and the Society provided by the testimony of the Applicants and the mother of Applicant 1 were considered by the Board to be plausible when the medical context and evidence related to Applicant 1’s challenges with communication were taken into account. The Board did not view these miscommunications as malicious attempts at challenging or duping the Society’s workers on the part of Applicant 1.

68Both written evidence and testimony confirmed the confusion related to the status of the Applicants’ home as kinship care, foster or adoption. A SAFE Home Study began in March 2011 and was completed on May 27, 2011. Of relevance is that the 2011 Home Study indicated that, at that time, the Society was in the midst of a trial with the biological mother and sought Crown Wardship with no access for the purpose of adoption of the Children. In April 2011, Crown Wardship was granted by the court for the purpose of adoption. The biological mother appealed the court’s decision in May 2011. The Society however, continued with the plan to place the Children with the Applicants in “kinship fostering with a view to adopt”. The report also indicated that “the Applicants intended to adopt the Children as soon as the appeal was dealt with and the Children were free for adoption.”

69The Plan of Care for Child 2 dated September 16, 2011 states that Child 2 is a Crown Ward for the purpose of adoption and has been placed with a family who plan to adopt her. Similarly the 30 Day Replacement Plan of Care for Child 1 dated June 30, 2011 states that Child 2 will remain in care while the appeal process is completed at which time the Applicants will adopt the Children. The Preliminary Assessment for Child 1 dated June 16, 2011 indicates that a kin placement has been presented, the family is intending to adopt and the home has been approved as a kin home.

70The Board heard evidence that the Applicants’ intention, understanding and expectation was that they were adopting the Children and the Children were placed in their home for the required probationary period prior to adoption. When the biological mother appealed the order, the Applicants understood that they would become a kinship home temporarily until the appeal was completed at which time they would revert back to adoption probation.

71The Society testified that the Applicants signed a Foster Care Service Agreement on May 31, 2011. The confusion occurred when the Applicants were regarded by Society workers as having only foster parent status which was not viewed as concurrent with adoptive status. The Applicants’ expectation was that they were adoptive parents with immediate plans for permanency in the placement of the Children once the appeal was resolved. The Board determined that there was miscommunication in documentation, records and direct communication with the Applicants by the Society about their status as adoptive parents which led to confusion and a noteworthy deterioration in the relationship.

72There was considerable evidence that led the Board to understand that the home visit on September 7, 2011 which was initiated for the purposes of completing the Home Safety Checklist was the pivotal point at which the relationship between the Society and the Applicants deteriorated. The newly assigned resource worker (1) came to the home on that day to complete the Checklist. The Applicants were still in a state of transition, hadn’t fully moved into the new location, the home was in disarray at the time and the Applicants and the family were under considerable stress. Resource worker 1 indicated that there were numerous areas of non-compliance with the checklist but was particularly concerned about the fact that all the family members were sleeping in the same room.

73A more experienced resource worker (2) from the Society was mentoring the newly assigned worker (1) and after hearing the complaints, she made a telephone call to the Applicants to follow up on the concerns. An argument ensued between resource worker 2 and Applicant 1. Applicant 1’s response was viewed by resource worker 2 as “defensive” and that he had “fabricated information”. An email was then sent on September 12 by resource worker 1 to the Applicants outlining the necessary changes and renovations that were required in the home for there to be compliance with the Home Safety Checklist. The expectation was that these changes occur by September 29, 2011.

74There was evidence that the Society acknowledged the stress that the family was under at the time of the introduction of the checklist. They were still not settled in their new home. The Children had been recently placed in their care and consistency, structure and routine were paramount to their wellbeing. This was difficult to establish in this transition period. Extended family who may have served as a refuge, were themselves moving into the home with this family.

75Through the Society’s own admission, it would have been helpful to have the resource worker review the requirements of the Home Safety Checklist prior to moving into the home. The regulations required that considerable renovation be completed to offer privacy to the Children. The Board heard testimony from the Applicants and other witnesses that the Applicants researched the Ministry regulations and standards through various sources to ensure that they were undertaking the necessary and specified renovations in a way that minimized expense and disruption to the family but were completed in a timely manner.

76Evidence from case notes indicated that Applicant 1’s approach to resource worker 2 at the time of the telephone call was viewed as confrontational, argumentative and challenging of the workers understanding of the immediacy of the required renovations. There was evidence that this worker was concerned about the wellbeing of Applicant 1 because of this interaction. The Board’s view is that this was a chaotic, extremely stressful time for the Applicants and the urgent and sizeable demands placed on them by the Society led to the deterioration in Applicant 1’s capacity to communicate effectively with the worker at that time.

77Evidence indicated to the Board that a trajectory had been established at this time for the closure of the foster home. On September 29, 2011, a meeting took place in the family home between resource workers (1 and 2), the Applicants and Applicant 1’s mother. The Society raised issues related to the communication difficulties that they were experiencing with Applicant 1, the need for compliance with the Home Safety Checklist and the [Region] incident of September 22, 2011. The Applicants raised the confusion that existed for them about the status of the home as kinship care, foster or adoption. There was a lack of trust by all parties at this time with allegations of wrongful behavior described by both the Society and the Applicants and other witnesses.

78On the same day, after this meeting, Applicant 2 wrote a letter to resource worker 1 with documentation to indicate that the Applicants were in compliance with the Home Safety Checklist.

79A meeting was called between the Applicants, the resource workers, the children’s service worker, a member of the foster parent communication team and supervisory staff for October 27, 2011 at the office of the Society. The agenda included: communication difficulties between workers and Applicant 1, the September 22, 2011 [Region] incident, the importance of teamwork, possible concerns regarding the Applicants’ relationship with each other (which related to allegations from the September 29 meeting) and the request to have Applicant 1 sign a consent for the Society to speak to his doctor with respect to his mental and emotional health. The Applicants were given limited time to prepare for this meeting and there was no agenda provided in advance. They testified that they thought this meeting was in response to their request for a meeting to resolve the deterioration in the relationship between themselves and workers from the Society. At the meeting the Applicants testified that there was no opportunity for meaningful dialogue or conflict resolution. The next day, the Applicants requested in writing to the Society a change in worker.

80On November 24, 2011, a second meeting took place at the office of the Society as a follow up to the service concerns addressed in the October 27, 2011 meeting. The Applicants were informed of the closure of their foster home. The Children were removed from the Applicants home on November 28, 2011. The Foster Home Closing Summary indicated that the Applicants should not be considered for fostering in the future due to the Society’s concerns about team work, communication and honesty on the part of the foster parents.

81The Board determined that confusion and high levels of stress confronting the Applicants laid the foundation for misconstrued communication and misunderstandings between the Applicants and the Society. The Society moved quickly to close the foster home with limited opportunity for conflict resolution or problem solving. Evidence presented indicated that when offered the opportunity to reflect and problem solve in a more thoughtful and mindful manner, communication with Applicant 1 is effective. Both Applicants made efforts to remedy the pattern of communication and breakdown in the relationship with no response from the Society.

82The Board heard evidence from the Society that the day of the removal of the Children from the Applicants’ home was traumatizing to all the children due to the lack of cooperation and resistance on the part of the Applicants. This event and the circumstances leading up to the event were extremely stressful and represented a crisis to the Applicants. They were giving up what they believed to be members of their family. Removal of children from any home is traumatic as it is an attachment disruption. Evidence presented to the Board indicated that there was miscommunication about how the Society intended to orchestrate the removal of the children. The event was confrontational and adversarial on the part of all parties. The Society argued that the way the Applicants handled the removal is another example of their lack of capacity to parent the Children. The Board is satisfied with the explanation of the applicants that their actions the day of the removal were the result of the highly stressful period leading to and the actual removal of the Children.

Criteria 5, 6 and 7: 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 Child’s relationships by blood or through an adoption order. The importance of continuity in the Children’s care and the possible effect on the Children of disruption of that continuity.

83The Board heard testimony from the Applicants that they wish to have the siblings together and the importance of the sibling bond in the development of identity. The SAFE Home Study of 2011 identified at that time the plan for the Applicants to adopt the Children as being in the best interests of the Children. Also, the Study reported that “this plan enables the Children to maintain sibling connections, grow up with a sense of belonging and form family connections.” There has been limited contact between the siblings since their removal for the Applicants’ home. The Applicants were restricted from seeing the Children but contact was available for the older brother. The Applicants were supportive of those contacts.

84Section 136(2)6 of the Act refers to the importance of the relationships by blood as a criteria of best interest. The Children being placed with the Applicants will have a unique opportunity to grow up together and with their older brother. This is an important consideration for the Board.

84The [ ] Interdisciplinary Assessment from [ ] Hospital, dated April 2015, provides evidence regarding the wellbeing of Child 1 and his need for a permanent adoptive placement. It states that Child 1’s:

(…) meaningful history attests to someone who has experienced recurrent losses and feeling of abandonment substantiated by the fifth foster placement in December 2014 (…) The fact that some placements have lasted for a longer duration of time still reinforces lingering feelings of rejection and failed attachment relationships. It is not surprising that he will experience high levels of anxiety in new situations which just might spell impending fears of another change or loss. [Child 1’s] critical treatment needs will be best met when he has been placed in a stable and permanent home that addresses his history of multiple placements and disruptive attachment relationships. (…) At this time, his adoption status is less secure and the CAS is currently working on these goals.

85Similarly, Child 2 has had a lack of permanency in her life. The children’s service worker testified that after the breakdown of the placement with the Applicants, Child 2 was placed in a foster home with Child 1 from November 2011 until October 2014. She was removed from that foster home as it was closed by the Society and from October to December 2014 she was placed with an interim foster family. She was separated from Child 1 during this period. She has been in a specialized foster home with Child 1 since December 2014. The worker testified that there was no plan for adoption and she could remain in this specialized placement until age 18.

86The Board determined that it is critical that the Children are offered secure relationships as a member of a loving family which includes siblings. There are indications that there has not been continuity in the care of the Children since their removal from the Applicants’ home and there is evidence of the deleterious impact of this disruption on their wellbeing. The Applicants have persisted in their commitment to these Children for four years and express their continued interest and determination to integrate them into their family which includes their sibling.

The Applicants’ Ability to Work with the Society

87The Society in accordance with the SAFE Home Study of 2015 identified their concerns with the Applicants’ ability to work effectively with the Society as a reason for terminating their foster home status.

88As indicated, the Applicants had a long standing and productive relationship with the Society. Evidence was provided that demonstrated that the Applicants were viewed by two previous home studies as competent, resourceful parents. The evaluation of Applicant 1 in 2011 stated that:

there were no concerns noted with regard to personal characteristics. He communicates well. He was committed to the plan throughout, seems to have meaningful interpersonal relationships, and is caring, organized and considerate.

89All concerns related to the Applicants are subsequent to the September 7, 2011 meeting and appeared to be generated by the interactions between resource worker 2 and Applicant 1. There was considerable evidence that there was a mutual breach of trust that was not repaired or rehabilitated.

90There was testimony from the Applicants and witnesses that there were disagreements at times with other Society workers but these disagreements were resolved through negotiation that demonstrated mutual respect.

91There was extensive written evidence and testimony that the Society had not understood, considered or taken into account Applicant 1’s communication deficits or the impact of the stressful circumstances and mitigating factors on either Applicant during the period of relocation when it sought compliance with the Home Safety Checklist.

92The Board heard testimony from the Society’s Supervisor of the Kinship Team regarding the process when there is a breakdown in communication between the Society and a foster/kin parent. She testified that she would invite the foster parent in with the worker and with both present they would talk about the issues and seek a resolution. If there was no resolution at that stage then it would go to the Director for further mediation and efforts for resolution. Changes in the personnel or the plan would be considered at that time. She testified that this process had not taken place with this foster family. They had “been removed before we could do this”.

93Written evidence and testimony regarding the meeting of October 27, 2011 indicated that the Society was proposing that this meeting be an opportunity for resolution. However, the Applicants testified that they felt that due to the number of Society workers and supervisors at the meeting and the nature of the agenda that was not shared with them in advance, the meeting was weighted in favor of the Society and there was no opportunity for meaningful dialogue or conflict.

94The Applicants gave evidence that shortly after that meeting, they each wrote to the Society requesting a change in workers. Neither Applicant received a response to their request.

95The Board concludes that the Society had not made a reasonable effort to acknowledge, understand and resolve the conflict between resource worker 2 and the Applicants. There was no informal process for resolution with a third party such as a supervisor. There was no evidence that the Society acknowledged its mutual responsibility to resolve the communication difficulties respectfully. The Applicants were terminated as foster parents without a fair and independent hearing of their concerns and perspective. This was to the detriment of the Children.

96The Board finds that there is nothing under the Act which stipulates that “working well” with the society as a foster parent, absent of any evidence that children are not doing well in a family, is a requirement when considering the best interests of a child to be adopted. The Board recognizes that a society has to be able to have an understanding of how a child placed for adoption is adapting to his new family. In order to do so, visits are required and good communication is needed. However, it is not the relationship with the society that should be the focus but the parental capacity of the future adoptive parents and the wellbeing of the children.

CONCLUSION

97The Board has considered the best interests of the Children, including the Children’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; the Children’s physical, mental and emotional level of development; the importance of continuity of care and the importance of secure relationships as a member of a loving family which includes siblings.

98The Board takes into account the concerns of the Society including the impact on the older brother of moving these high needs Children into the home and the ability of the Applicants to manage all three children; one of the Applicant’s ability to communicate effectively and his mental health and the Applicants’ ability to work with the Society.

99The Board recognizes the Children’s complex physical, mental, emotional and developmental needs and the evidence that demonstrates the Applicants’ capacity to meet those needs in a structured, consistent, nurturing home environment.

100The Board is of the view, given the evidence, that Applicant 1 does not have mental health concerns but has communication deficits that may contribute to a pattern of dysfunctional communication in chaotic, stressful and threatening circumstances.

101The Board recognizes the evidence that Applicant 1 is able to manage and mitigate these deficits through the use of strategies and tools and this disability does not preclude him from being the primary caretaker for the Children.

102The Board is of the view, given the ages of the Children, that the Children’s need for continuity and permanence should supersede all other considerations, and that they should be adopted by the Applicants.

103The Board concludes by recommending the following:

• That the Society and the Applicants secure an independent mediator to resolve the outstanding issues related to the lack of mutual trust and their ability to work effectively together on behalf of the Children. A restorative justice approach is recommended.

• That the Society is mindful of Applicant 1’s communication deficits throughout the adoption probationary period.

• That the Society offer and the Applicants accept the necessary resources to care for these high needs Children.

• That the Society offer and the Applicants accept the support of a resource worker.

ORDER

104On December 17, 2015, the Board made the following orders:

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

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

3. Orders the transfer of the Children to be completed no later than December 30, 2015.

4. Orders the Society to arrange for the children to spend a minimum of 48 hours with the Applicants during the Applicants' Christmas celebrations.

105The Board will remain seized for matters relating to the implementation of this decision.

CONFIDENTIALITY ORDER

106Parties 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.

SUZANNE GILBERT

_____________________

Suzanne Gilbert

Associate Chair

JUDY FINLAY

_____________________

Judy Finlay

Member