CHILD AND FAMILY SERVICES REVIEW BOARD
D.H. and M.H.
v.
Children’s Aid Society of Haldimand and Norfolk
REASONS
Indexed as: D.H and M.H v. Children’s Aid Society of Haldimand and Norfolk (CFSA s. 144)
Introduction
1This is an Application made under s. 144 of the Child and Family Services Act, R.S.O. 1990, c.C11, as amended, (the “CFSA”). The Applicants applied to the Child and Family Services Review Board (the “Board”) for a review of the Respondent Society’s refusal of their application to adopt A.S., born in March 2016 (the “Child”).
2The Applicants fostered the Child for approximately the first six weeks of her life. They are also the foster parents of the Child’s full sibling (the “sibling sister), who has now been placed for adoption with them by a neighbouring children’s aid society.
3In July, 2016, the Respondent Society was made aware that the Applicants wanted to adopt both the Child and her sibling sister. The Child was made a Crown ward with no access on September 12, 2016. The Applicants were informed in October, 2016 that the Respondent Society intended to move forward with an adoption assessment of a family member of the Child.
4The Applicants interpreted the letter communicating the Respondent Society’s intentions, dated October 14, 2016, as a refusal of their proposed plan to adopt the Child and seek a review of that decision.
5Following some attempts at mediation, which resulted in a SAFE home study of the Applicants being conducted by a neighbouring children’s aid society, a hearing into this matter was held on April 24, 25, 26 and 27, 2017.
6During the hearing, the Board heard from a number of witnesses on behalf of the Respondent Society. The following personnel from the Respondent Society gave evidence:
child protection workers from both the children services and family services divisions of the Respondent Society;
the family finder;
the adoption worker who assessed the application to adopt made by the family member; and
a child protection supervisor.
7The Board also heard from the Child’s paternal uncle (the “Uncle”) who also seeks to have the Child placed with him for adoption and whose application the Respondent Society supports.
8A former employee of the neighbouring children’s aid society, who worked with the Applicants in their role as foster parents gave evidence in support of the Applicants’ case, as did the adoptive mother of two of the Child’s half-siblings.
9The Board also heard from the one of the Applicants’ former foster children, who continues, as an adult, to be part of their family. Finally, Applicant A testified. Applicant B elected not to testify but was present throughout the hearing.
Decision of the Board
10On May 1, 2017, the Board released the following decision with reasons to follow:
The Board determines that it is in the best interest of the Child, A.S., to be placed for adoption with the applicants and that the decision of the respondent society refusing the applicants’ application to adopt the Child is rescinded under subsection 144(11) of the Child and Family Services Act (the “Act”).
11These are the Board's reasons for its decision.
the law
12The 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:
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.
The religious faith, if any, in which the child is being raised.
The importance for the child’s development of a positive relationship with a 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 child’s care and the possible effect on the child of disruption of that continuity.
The child’s views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
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
13The Child is just over a year old and, by all accounts, thriving. She was described by everyone who has met her as a happy and healthy child, who has met all her developmental milestones and who has no identified special needs.
14She has one full sibling, namely the sibling sister who is 2.5 years older than her, who has been fostered by the Applicants for most of her life and who has now been placed for adoption with the Applicants. The Child also has two older half-sisters on her maternal side who have been adopted, and whose adoptive mother testified at this hearing on behalf of the Applicants, and an older half-brother who lives with the maternal grandmother. Finally, she also has an older half-sister on her paternal side. That child lives with her biological mother.
15When the Child was born, she and her biological mother were physically located within the jurisdiction of the Respondent Society. The neighbouring children’s aid society, which had previous involvement with the birth mother and who had apprehended the Child’s sibling sister, asked the Respondent Society to apprehend the Child on their behalf shortly after her birth. Following the apprehension, the Child was taken to the Applicants’ home to be fostered, at the request of the neighbouring society. She remained there for about six weeks.
16During the early stages of the protection proceedings before the court, immediately following the apprehension, the birth mother indicated that she was unwilling to work with the neighbouring children’s aid society and refused to have the file transferred to that society. As a result, the Respondent Society assumed carriage of the matter. It decided to move the Child from the Applicants’ home to a foster home in its jurisdiction, where the Child has remained since.
17Before the Respondent Society assumed responsibility for the care of the Child, the neighbouring society initiated and held a Family Group Decision Making Conference in respect of the Child and the sibling sister on March 21, 2016. As the name indicates, family members of the two children attended the meeting to provide their thoughts on the best possible outcomes for the children if they were not returned to the care of their mother or father.
18Following the discussions held at the meeting, the participants agreed that the two children (the Child and the sibling sister) should be enabled to grow up together. Further, they agreed that two plans out of four that were on the table for consideration were their preferred options. They asked the neighbouring society to assess and focus on these plans. The first choice of the group was that the sisters would move towards permanency with the adoptive parents of two of their half-sisters (children of their birth mother), which would result in four children of the biological mother being placed together. The second choice was that the two children be placed with one of their paternal uncles.
19The Applicants gave evidence that they had already expressed their intentions regarding permanency in respect of the Child’s sibling sister, who had been in their home for a significant period of time. However, their permanency plan for the two children was not one of the ones chosen at the Family Group Decision Making Conference.
20Subsequent to that meeting, the family that was the group’s first choice elected not to proceed with submitting permanency plans for the children. The adoptive mother of the half-siblings of the Child attended the hearing before this Board and expressed that it had been and continued to be her view that it was in the best interest of the Child’s older sibling to remain with the Applicants, given her strong and lengthy connection to them. In addition, she felt it would benefit these two sisters to grow up with each other. It was for that reason that she and her spouse withdrew their plan for the children.
21At around the same time, the paternal uncle, who represented the second option arising out of the Family Group Decision Making Conference, and who is the Respondent Society’s preferred choice for placement of the Child, was told that the adoptive parents of the half-siblings had withdrawn their plan. Further, he was told that the Applicants intended to seek to be assessed for adoption and had, in fact, filed an application before this Board in relation to a refusal to the adoption application relating to the Child’s sibling.
22The Uncle testified that he could not afford to retain counsel and felt he had no option but to withdraw his permanency plan for the children at that time.
23The Family Finder employed by the Respondent Society testified that the agency has a strong commitment to seeking out suitable kin options for children in care and in this case, when permanency planning for the Child that is the subject of this application began, she set out to search for family members and followed up with the Child’s paternal uncle.
24The Uncle says that, after he withdrew his permanency plan for the two children, he was later contacted by the Family Finder from the Respondent Society to ask if he wished to propose a permanency plan for the Child. He readily agreed. He then proceeded to complete PRIDE training, a prerequisite for being considered for adoption of a child, and met with the adoption worker from the Respondent Society to complete a SAFE home study assessment. The result of the assessment was positive and his home was deemed to be a safe and appropriate home for the Child.
25The Uncle described his family as big and blended. He has three adult daughters (two biological and one stepchild), none of whom live with him. He also has a 9 year old son, whom he co-parents with the child’s mother, and who lives part of the time with him. He is also a grandfather now. He agreed that he did not play the role of primary caregiver to his three adult daughters. He also agreed that his daughters did not live with him during their teenage years as he was estranged from the mother of the two biological daughters and had parted ways with the mother of his step-daughter. However, he testified that all three of them have since rebuilt their respective relationships with him and he sees them regularly and has contact with his grandchild.
26The Uncle is one of nine siblings in a blended family; the Child’s biological father also being one of the nine. He is aware of the concerns that the courts and the Respondent Society have about contact between the Child and his step-brother, who is the Child’s biological father and understands that the Child has been made a Crown Ward with no access.
27He agrees with those concerns and testified that he would ensure that his step-brother would not have access to the Child if she was to be placed with him for adoption. He gave evidence that although his step-mother, father and siblings may have occasional contact with the Child’s biological father, and some of them may also be assisting him with day to day care of the Child, he would ensure that the requirements about no contact between the Child and her biological father were respected by his extended family.
28At the time of the SAFE home study assessment, the Uncle was unemployed as he was off work recovering from a serious accident. He was bedridden for eight months and it took a long time for him to recover from his injuries, during which time he was helped a great deal by his family, particularly his father, step-mother and one of his sisters.
29He has recently found work and is now employed full time. If he is successful in his bid to adopt the Child, he testified that he would take paternity leave, although there is some question as to whether he would qualify given that he has only recently begun working and may not have sufficient insurable hours in employment for such a leave.
30His medium term plan is that after the paternity leave period, the Child would be cared for during the daytime, while he is at work, by relatives in the large extended family; particularly his step-mother, father, a sister (who has eight children herself) and/or his former partner with whom he shares custody of his young son. None of those persons attended to provide evidence as to their future roles as potential caregivers for the Child.
31He expressed that he has qualms about using a day care until the Child is older but that he may consider that option at a later stage for pre-school preparation. He did not express concerns about continuity or consistency of care for the Child, who is now just over a year old.
32The Uncle described his extended family as a large and loving group that has frequent contact and maintains connections with one another. He wants very much for the Child and her sibling sister to be part of that extended family and to “know who they are and where they come from”. He said that he could not afford legal counsel to challenge the Applicants about their plan for the sibling sister, but when contacted by the Respondent Society, he decided to focus on trying to provide a home for the Child that is the subject of this application, as a first step.
33The Uncle does not know the sibling sister very well. He says he has given the Applicants his contact details but they have not provided an opportunity for his family to see that child. His view is that the girls belong together and that they belong with him.
34The Applicants are foster parents who have fostered twenty seven children in care for over twelve years for a children’s aid society that neighbours the Respondent Society for both long term and short term stays.
35The family is comprised of Applicants A and B, four children who are either adults or in their late teens (three biological children and one child who was fostered since her teens) and a three and a half year old child, the sibling sister. She is the only full sibling of the Child who is the subject of this application. She has been fostered by the Applicants since very shortly after she was born. Her status has recently been changed with the Applicants to adoption probation. The adult children do not all reside in the home at all times as some of them attend college and university in other locations and return for holidays and school breaks.
36Applicant B works outside the home full time doing maintenance and carpentry work for his employer and Applicant A takes on freelance writing projects in addition to being the primary caregiver for children fostered in their home as well as the couple’s biological children. Applicant A is actively involved in the local foster parent association and has taken training and coursework with that association as well as with the Adoption Council of Ontario. The Applicants have also been called on to mentor other foster parents by the children’s aid society with whom they are involved.
37The Applicants’ children were interviewed as part of the assessment and the conclusion is that there are no concerns with respect to the family dynamics and, in fact, the children, both biological and fostered, feel supported and valued by their parents.
38The Applicants have been involved in the care of the Child’s sibling almost since birth and the plan, if they are successful in their bid to have the Child placed for adoption with them, is for Applicant A to focus on the practicalities of the day to day care of both sisters in the short term during the transition. She described her present daily routine with the sibling sister and testified that she would include the Child in those activities that suit her and find other age appropriate activities for the Child. The adult and teen children in the home and Applicant B would also be available to assist during the day, as needed, and in the evenings and weekends.
39The Applicants have expressed that they are open to exploring relationships with the Child’s biological family. They have begun by initiating meetings with the half-sisters of both the Child and the sibling sister on the maternal side through contacts with the adoptive mother of those children. This was confirmed by the adoptive mother, who testified that she is open to continuing such contacts to the extent that they are practically achievable and feasible.
40The Applicants have had more meaningful contact with the maternal family of the sibling sister already in their care, than with the paternal family. They have provided a birth book of the sibling sister to the paternal family, but have had more limited contact with them. Applicant A testified that she is interested in fostering openness, has taken a course through the Adoption Council, spoken with experts in the field and will take steps to ensure that the children know who they are and where they come from.
41The Applicants have undergone an adoption assessment (SAFE home study) that involves both the Child and her sibling. The Respondent Society accepts that the conclusion of the SAFE home study is that the Applicants’ home is a safe and appropriate home for the Child, as well as her sibling sister, i.e., for both children.
42As indicated above (in para.24), while the Applicants’ home study was being done by the neighbouring children’s aid society, with the agreement of the Respondent Society, the paternal uncle of the Child was undergoing a similar SAFE home study adoption assessment by the Respondent Society. At the conclusion of that process, the Respondent Society concluded that his home is also a safe and appropriate home for the Child.
43This is the backdrop and context in which this application was heard.
analysis
Credibility
44In assessing credibility, the Board has applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354:
(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken. [Emphasis added].
Section 144
45In FCY Services of Muskoka v. D.D., 2010 O.J. No.5085, the Divisional Court described the approach to considering a s. 144 application as follows (at paras 20-22 emphasis in the original):
In this case, the pertinent provision is s. 144(11) of the CFSA, which states: "The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm or rescind the decision under review and shall give written reasons for its decision".
The language of this section expressly requires the Board to make a determination as to what action is in the best interests of the child. If the decision under review is a refusal of an adoption application, the action relates to the entire adoption application process, which involves a number of distinct steps. Although action must be interpreted in the context of the decision under review (adoption application or removal from placement), it gives the Board broad authority to determine what should be done in the child's best interests within the confines of the decision/action under review.
The Board does not have parenspatriae 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.
46The 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.
47In the case at hand, the Board has considered all of the following best interest factors. Some of them are less relevant in the context of the decision relating to this Child. The Board’s conclusions to the relevant best interests concerns are laid out below. In this case, the most relevant concerns relate to paragraphs 2, 5 and 6 of the best interest factors as set out 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.
The religious faith, if any, in which the child is being raised.
The importance for the child’s development of a positive relationship with a 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 child’s care and the possible effect on the child of disruption of that continuity.
The child’s views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
Any other relevant circumstance.
Appropriate Care or Treatment:
48The Child is described by all concerned as happy, healthy, well-adjusted, meeting all age appropriate milestones and presenting with no identified special needs. It is not necessary, therefore, to focus on care or treatment issues, given that the Child is not in need of specialized care or treatment.
Level of Development
49The Child is just over a year old and has been in the same long term foster home since she was moved from the Applicants’ foster home, an environment in which she has thrived. The parties agree that she is likely to transition successfully to her new adoptive home setting as long as it is safe and appropriate.
50The Board finds, however, that the Applicants’ home offers greater options for consistency and continuity of care, particularly in the care she will receive on a day to day basis. The Board noted that this was not part of the plan articulated by the Uncle in his testimony before the Board. In the Board’s view, this is a critical time and stage of life for the Child and a changing roster of caregivers and lack of routine would not be beneficial to the Child’s emotional development. The positive effects of a consistent routine at this stage of the Child’s life would benefit all aspects of her development, including but not limited to emotional development.
Cultural and Religious Factors
51The homes in question that have been found to be safe and appropriate by the two societies are both culturally in line with the Child’s origins and there is not much to separate them in that regard. In addition, there is no issue with respect to the religious faith of the Child’s family of origin that forms part of the consideration in this case.
Secure Place within Family and Relationships by Blood or Adoption
52The Board notes that while the Child’s paternal uncle has very positive and loving relationships with his adult children, it is not in dispute that he did not actively parent his three daughters for significant periods in their youth and teenage years.
53We are persuaded that the Child would develop a positive relationship with her adoptive parents and a stable place in the Applicants’ family, given the Applicants’ track record in successfully parenting both their biological and fostered children. The Board’s conclusion in this regard is bolstered by the evidence of the Applicants’ foster daughter who clearly continues to be an integral part of the family.
54In addition, the invaluable benefit of growing up with her full sibling, who is close to her in age, cannot be overstated. Moreover, it was the consensus of the extended family that attended the Family Group Decision Making Conference, namely the importance of the two closely related children growing up together in the same home. The Board also noted that the two children have had regular contact with one another through overnight visits and have established a relationship within the limits of their young ages.
55A placement with the Child’s paternal uncle would place her in an environment where she would be immersed in the extended paternal family. She would develop a sense of belonging in that family group and a clear understanding of her origins. In that setting, however, she is likely to develop less extensive connections with her full sibling and her maternal half-siblings.
56Conversely, the concern expressed by the Respondent Society is that while the Applicants have said they are interested in openness, it argues that their actions, thus far, belie their words. It points to the fact that there has been no meaningful pattern of contact established between the Child’s sister and the paternal family. The Respondent Society attributes this to what it describes as an “overwhelmingly negative attitude” of the Applicants to the paternal family.
57At the root of the problem from the society’s perspective is the concern that the Child will not develop a strong and positive sense of her family of origin if she is placed with the Applicants and they present a negative picture of her family of origin. It asserts that this, in turn, will affect her self-image.
58The Family Group Decision Making Conference meeting resulted in a conclusion that sibling relationships should be the focus of permanency planning. The Board sees merit in the only plan that honours that wish, namely the plan involving the Applicants whose home has been assessed as a safe an appropriate place for both full sisters to be placed for adoption together.
59The Board does not fully accept the entirety of the concerns expressed by the Respondent Society about the attitudes of the Applicants towards the Child’s family of origin and their unwillingness to foster relationships with the family. To the extent that the concerns are valid, they can be addressed and mitigated as outlined below.
60The Applicants, through Applicant A, while expressing concern about exposure of the children to their biological father, testified as to their positive impressions of the members of the paternal family of origin that they had met, in particular, the paternal aunt.
61The Applicants have, as discussed above, already initiated a relationship with the Child’s half-sisters on the maternal side on behalf of the child already in their care. The Board sees this as a positive first step.
62The concern about moving towards ensuring meaningful openness to the Child’s family of origin, including the extended paternal family, can, in the view of the Board, be mitigated during any probationary placement period. In addition, the Board accepts the assurances offered by Applicant A during testimony that she and her husband are interested in pursuing openness and that she is seeking guidance and assistance from the Respondent Society as to logistics.
Continuity of Care, Child’s Wishes and Effect of Delay
63The remaining best interest factors are not relevant in this inquiry. Continuity of care is not determinative of the issues in this case, as the Child is presently in the care of a foster family who have not put forward a plan to adopt her and whatever the decision is in this case, a move to an adoptive home will be necessary. The Child’s wishes are not ascertainable given her age. Finally, delay is not a concern given the age of the Child and the speed at which she has been moved towards permanency.
64The Board finds, therefore, upon consideration of all relevant best interest factors, that the Child should be placed with the Applicants and that the decision of the Respondent Society should be rescinded.
order
65On May 1, 2017, the Board made the following Order:
The Board determines that it is in the best interest of the Child, A.S., to be placed for adoption with the applicants and that the decision of the respondent society refusing the applicants’ application to adopt the Child is rescinded under subsection 144(11) of the Child and Family Services Act (the “Act”).
CONFIDENTIALITY ORDER
66Pursuant 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.
67The Board will permit the use of its decision and these reasons in any adoption proceedings involving the Child.
Eva Nichols
Eva Nichols
Presiding Member
Paula Eyler
_________________ Paula Eyler
Board Member
Jay Sengupta
_________________ Jay Sengupta
Vice-Chair
Dated at Toronto, Ontario on the 29th of May, 2017.