B.I. v. Waterloo Family & Children's Services, 2016 CFSRB 52

CHILD AND FAMILY SERVICES REVIEW BOARD

B.I. v. Waterloo family and chidlren’s services

Reasons for decision

Date: November 7, 2016

Citation: 2016 CFSRB 52

Related to 2016 CFSRB 47

Indexed as: B.I. v. Waterloo Family & Children’s Services (CFSA s.144)

Introduction

1This is an application made under s.144 of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended (the “CFSA”). The Applicant applied to the Child and Family Services Review Board (the “Board) on June 6, 2016, for a review of the Respondent Society’s refusal of her application to adopt her niece’s son, [ ], born [Date of Birth] (the “Child”).

2The Applicant was previously approved by the Respondent Society as a kin adoption home for her niece’s two older sons, (referred to collectively as “the boys”) who presently live with her and who she has adopted. They are half-siblings of each other and of the Child who is the subject of this application.

3A hearing into this matter was held on July 4, September 9 and October 6, 2016.

4During the hearing, the Board heard from a number of witnesses on behalf of the Respondent Society. Specifically, the Board heard the testimony of a specialized foster mother presently caring for the Child, an Adoption Recruitment Worker who completed the SAFE Home study update, a Supervised Access Worker, a Principal at the school attended by Applicant’s two children, a paediatric physician, a Family Services Worker and two Child Protection Workers. Some of the employee witnesses were involved in recent child protection investigations of allegations pertaining to the Applicant and her sister.

5The Applicant gave evidence in support of her application and a friend from the community testified on her behalf.

6On October 17, 2016 the Board released the following decision:

Having considered the best interests of the Child, the decision of the Respondent Society to refuse to place the Child for adoption with the applicants is confirmed under subsection 144(11) of the Child and Family Services Act (the “Act).

7These are the Board’s reasons for its decision.

THE LAW

8The relevant sections of the CFSA are set out below:

s. 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.

s. 144(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.

the facts

9The Applicant is a widow with one adult biological daughter who resides elsewhere and two adopted children who live with her.

10The Applicant was previously approved as a kin adoption home for her two children. The boys, who are [ ] and [ ] years old, are half-siblings of each other and of the Child. The older boy was placed with the Applicant on a fostering basis on [Date 1]. The younger of the two was placed on a fostering basis on [Date 2]. The adoption of both children by the Applicant was finalized on [Date 3].

The Child’s Needs

11The Child was born prematurely on [Date of Birth], having been exposed prenatally to drugs and alcohol. He remained hospitalized in the NICU during which time various health concerns were addressed in addition to his prematurity.

12Poor weight gain has required diligent attention to his feeding patterns. Since his discharge from hospital and placement with a specialized foster mother, the Child has remained medically fragile with ongoing feeding problems, high sensitivity to infections and is extremely small for his age.

13The specialized foster mother, who has over 8 years of experience as a foster mother to “high needs medically fragile infants”, testified that the Child is “the most challenging high needs baby she’s ever had and takes more hours of her time than any other baby she’s cared for”. In addition to various feeding challenges and fragile immune system, he requires ongoing muscle therapy, daily exercises and regular and frequent medical appointments.

14The Child’s consulting paediatrician testified that the Child’s growth and development are the major medical issues at this time. He is not growing despite the efforts of his skilled and committed foster mother. He does not register on standardized growth charts. At [ ] months of age, he is the size of a 2 month old infant. He gets frequent infections because of his small size which causes further weight loss. He requires specialized paediatric high nutrient formula and additional pharmaceutical supplements.

15The doctor also testified that the prenatal exposure to alcohol and drugs are risk factors for neuro-developmental problems such as learning disability, cognitive delay, emotional dysregulation and ADHD.

16She could not say where the Child would eventually be on the spectrum. As she put it, “nature/nurture – you cannot change the hit to his brain at birth”. What she was able to say with certainty, was that he would need occupational therapy, physical therapy, and a home environment with constant interaction to maximize his development and his needs for those therapeutic services would be above average. Fetal Alcohol Spectrum Disorders (FASD) has not yet been diagnosed. The Child will be followed medically as a high-risk patient at least until kindergarten.

17The doctor’s view was that parenting the Child will require a lot of patience, time, ability to stimulate him, advocacy skills to manage his educational and medical needs and to ensure he gets the services he needs, and financial ability to manage the extra costs of his therapy and food.

18The supervised access worker was assigned by the Society to arrange and supervise visits between the Child, his grandmother and her sister, who is the Applicant. There were 5 visits in total, one 2 hour visit and four 1 hour visits. Their first contact with the Child was on December [ ], 2015.

19The foster mother stayed to provide information on the infant and the visit went well. There were 4 more supervised visits, one with both of them, 2 with the Applicant, and one with her sister, the Child’s grandmother. The foster mother was present and the visits went well.

20The Applicant and her sister tried unsuccessfully to feed the Child. One visit was cancelled due to the Child’s illness. Another visit had been scheduled in April but was cancelled after the apprehension of some children in the grandmother’s care in April, 2016. There were no visits in the Applicant’s home, in part because of ongoing concerns that the Applicant smelled of cigarettes.

The SAFE Home Study Update

21The evidence of the adoption recruitment worker was that she has been with the Respondent Society for over 15 years with a focus on kin and family adoptions. She was assigned to do the kin adoption home study update. The Structured Analysis Family Evaluation (SAFE) home study of the Applicant was initially completed by the Society prior to the older son’s placement in the Applicant’s home in [Year 1]. Her home was approved for that purpose. The SAFE assessment was updated when the second child was placed in her care in [Year 2]. At that time, she was considering taking a third child and the adoption worker raised concerns that a third child would be too much for her.

22The adoption recruitment worker suspended her SAFE assessment update when the Applicant’s sister was charged with assault and her sister’s four children were apprehended in April, 2016. These children remain in foster care and her sister faces criminal charges of assault. There were also allegations against the Applicant. She completed the SAFE update with the Applicant after the protection investigation concluded. This occurred between the second and third day of the hearing.

23The adoption recruitment worker identified several concerns that formed the basis for her position not to support the application to adopt the Child. She concluded that the Applicant is not equipped to parent another high needs child and could not provide the Child with the degree of care and long term permanency that he requires.

24Areas of concern she expressed were

• behavioural challenges and parenting demands of the Applicant’s two young children;

• the collapse of her family support system because of the legal difficulties her sister was going through;

• possible health issues preventing her from getting her children to and from school and other appointments;

• lack of problem-solving and advocacy skills;

• housing; and

• finances.

25The existing parenting demands on the Applicant whose two children have special needs was an area of major concern. Both boys have exhibited challenging behaviours, consistent with pre-natal exposure to alcohol and drugs and were referred to a behavioural specialist. The younger of the two boys was diagnosed with [ ] and prescribed medications but he did not tolerate them so he continues to need considerable attention at school and hands-on parenting. He has regular appointments with the behavioural specialist. The older son has fewer problems and has not been diagnosed with [ ]. He was referred back to the family doctor for follow-up with his behavioural issues.

26The principal of the school that the boys attend testified that the Applicant’s children both have “significant” attendance and lateness issues at the school and the school attendance records were filed in evidence. He noted the frequency with which both boys are absent at the same time. It is unusual, in his experience, for other students in a family to miss school when one of them is ill.

27He testified that both boys have academic and behavioural challenges, especially the younger of the two. He is extremely distractible and requires constant regulation and structure. Even with an extraordinary teacher and highly structured consistent programming, he is “out of control”. The principal made these observations both as principal and as the parent of an [ ] child.

28Additional concerns reported were about the boys being picked up after school and difficulties reaching the Applicant when issues at school come up. The Applicant is not usually the one who brings or picks up the boys. The principal was concerned that the Applicant’s delegate (the boys’ uncle) who has been picking them up recently is reportedly “unengaged”. He has stayed outside waiting for their taxi and left them in the school office long after other children had been picked up.

29The Applicant believes that the principal was not truthful about her or her children. She thinks the school should care for them when they are at school, not call on her to bring them home when there is a problem.

30The Applicant described her younger son as “running, jumping and talking all the time”. He has a poor appetite, has to be “tricked” to eat and has sleep problems. She said her older son sometimes takes things that do not belong to him and is not truthful when confronted. But she believes that she has been handling her sons’ behaviours well and does not see a need for concern.

31Historically, the Applicant’s support system has been her adult daughter and her sister. Her sister is the biological grandmother of the Child, of the Applicant’s two children, and of five other grandchildren who usually reside with her. Four of these children were recently apprehended and remain in the care of the Society. In the past, the children moved between the two homes for meals, sleepovers, religious teaching and other activities. The Applicant confirmed that is no longer the case, pending resolution of the child protection and criminal proceedings. The Applicant’s adult daughter is reportedly considering a kinship plan for the four children currently in care to be placed with her.

32There were also protection concerns raised about the Applicant during the investigation concerning her sister. As well, there were previous allegations and one subsequent report. All of them have been investigated. While some concerns were verified, there are no ongoing concerns regarding the Applicant and her care of her boys.

33A further concern expressed by the adoption recruitment worker was about the Applicant‘s physical health. She has been diagnosed in the past with fibromyalgia but provided no recent medical information despite a number of requests made by the worker. The Applicant testified that she has now provided a letter to the Society from her current family doctor. Despite her diagnosis, she has learned over the years to manage her condition by ensuring that she gets enough rest, exercise and appropriately manages her pain. She does not see it as an impediment to parenting three young children, even one who is medically fragile.

34She testified about the importance of family and ensuring that those bonds are maintained both for her larger community, but more importantly, to her. She spoke eloquently about her desire to do everything to ensure the Child knows he is wanted and a part of the family. She explained the motivation for her taking in the Child’s half-siblings and adopting them in similar terms.

ANALYSIS

35In Family Youth & Child Services of Muskoka v. D.M. and C.M., 2010 ONSC 6018, the Divisional Court described the approach to considering a s.144 application as follows (at paras. 20-22):

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.

36The Board is required to make a substantive decision, in the best interests of the Child and, in doing so, is mandated to take into account any of the specifically enumerated best interest factors that are relevant.

Child’s Best Interests

37In the case at hand, the Board focussed on paragraphs 1, 2, 3, and 6 of s.136(2) which are reproduced below:

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

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

The child’s cultural background; and

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

38The Board has considered, and accepts as credible and reliable, the evidence provided by the Society of the Child’s pre-natal history, his current high-risk medical status, the demands of his day to day care, and the risk of future physical and developmental needs resulting from pre-natal drug and alcohol exposure and possible liver damage resulting from medical treatments received during the first 6 weeks of his life.

39The existing demands of parenting the Applicant’s two children appear to fill her abilities to their capacity. Both children have special needs and she may face even greater demands in the future given that they both share similar pre-natal histories to the Child. She has historically relied on her daughter and her sister for help with the children.

40While the ongoing protection concerns regarding her sister are not a reflection on the Applicant’s parenting, they impact significantly on her support network. The two women helped each other out as needed. The children spent sufficient time in both homes that the Society and the school believed them to be co-parenting.

41That support system is not presently available and there is uncertainty as to whether it will be available in the future, given her sister’s legal difficulties and the Applicant’s daughter’s desire to take on additional responsibilities with respect to the other children in the extended family structure.

42While the Applicant spoke in general terms about the availability of the support of members of her ethnic or cultural community, she acknowledged she had not spoken to anyone about specific and sustained assistance. In the absence of such specific information, the Board is not prepared to find such support is actually part of the plan she presents for the care of the Child going forward.

43The Board concurs with the opinion of the pediatric specialist that the Child will likely need more therapeutic and medical interventions than usual, a home environment with constant interaction to maximize his development, a lot of patience, time, ability to stimulate him, advocacy skills to manage his educational and medical needs and to ensure he gets the services he needs, and financial ability to manage the extra costs of his therapy and food.

44The Respondent Society argued that the Applicant had not demonstrated the ability to advocate for necessary services on behalf of the Child. The Board does not find this concern borne out by the evidence. The Applicant has some challenges but, with support, she would be able to do what is necessary. She has sought out services for her two young adopted sons in the past and could, no doubt, be relied upon to do the same for the Child if necessary.

45The Board finds, however, that the Applicant, in her eagerness to ensure the Child maintains bonds with his biological family, is minimizing the nature, complexity and seriousness of the medical challenges the Child presents with currently and the challenges he and the family will face in the future and the commensurate demands that will place on her.

46With the current demands on her resources and time and in the absence of the robust support system she enjoyed and relied upon in the past, the Board finds that the Applicant’s ability to manage the complex needs of this medically fragile Child is compromised.

47One area of concern the Board has grappled with is how best to honour the Child’s cultural background and to ensure that he is able to maintain ties to his biological half-siblings and the extended family if not placed for adoption with the Applicant. To that end, the Board is encouraged by the fact that the Respondent Society has assured the Board that it intends to ensure that openness is a feature of any placement or adoption arrangements pursued for the Child.

Conclusion

48Despite her strong desire to keep the Child within the family, her obvious devotion to all the members of her extended family and her willingness to put their needs before her own, the Applicant has not established that she appreciates the range and complexity of the Child’s problems and needs currently and going forward. The Board acknowledges her genuine desire to care for this Child but, given her current circumstances, the Child’s needs would not be met in her care.

49The Board finds, therefore, upon consideration of all relevant best interest factors that the decision of the Respondent Society not to place the Child for adoption in the Applicant’s home is confirmed.

order

50On October 17th, 2016, the Board made the following Order:

Having considered the best interests of the Child, the decision of the Respondent Society to refuse to place the Child for adoption with the Applicants is confirmed under subsection 144(11) of the Child and Family Services Act.

CONFIDENTIALITY ORDER

51Pursuant to Rules 30.1 and 30.2 of the Board's Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board's proceedings, except with an order of the Court or the Board, as appropriate.