CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
A.B
and
BRANT FAMILY AND CHILDREN’S SERVICES
and
CHIPPEWAS OF SAUGEEN FIRST NATION
and
FAMILY B
Applicant Respondent Party
Party
DECISION
File Number: CA17-0136
Indexed as: A.B v. Brant Family and Child Services (CFSA s.144)
INTRODUCTION
1This is an application by [A-B] (the “Applicant”) 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 Brant Family and Children’s Services (the “Society” or the "Respondent") which refused the Applicant's application to adopt BS (the “Child”). This application was heard by the Board on July 12 and 14 and August 10 and 14, 2017.
Preliminary Issue
2At the commencement of the hearing, the Respondent sought summary dismissal of the application on the grounds that the Applicant had not provided
verification of her spouse’s consent to proceed with the Application to Adopt. The Board declined to dismiss the application on that basis. On the second day of hearing, the Applicant provided the required letter from her spouse.
The Position of the Applicant and Respondent
3It is the position of the Applicant that it is in the Child’s best interests to be adopted by her. She was confident that she could provide the quality of care required to meet the needs of the Child. The Applicant stated that the Respondent had not taken her expressed interest to adopt into consideration and did not communicate to her its intention to place the Child in an alternate home of family members out of province. The Applicant reported that, as a longstanding foster parent and a trained Child and Youth Worker, she had the skills to manage and care for the Child. She stated that she lived in close proximity to the territory of the First Nation of which the Child was a member and as an Indigenous woman she was confident that she could ensure that the Child’s ties to that First Nation were maintained and that she would nurture Indigenous traditional values, way of life and culture throughout his life.
4It is the Respondent’s position that it is not in the Child’s best interests to be adopted by the Applicant. The Respondent believes that its paramount responsibility is to place the Child for adoption in the home of extended family members who also have biological linkages to the Child. The Respondent indicated that it had given notice to the Band which represented the Child’s territory and heritage. It indicated that under the Act that any plan put forward by an Indigenous community or Band must be properly considered by the Respondent. The Respondent indeed concurred with the plan of the Band and believes it is in the best interest of the Child to know and have meaningful contact with his biological family.
The Board’s Decision
5Having considered the best interests of the Child, the decision of the Respondent Society to refuse to place the Child for adoption with the Applicant was confirmed by the Board under subsection 144(11) of the Act in an Order dated August 18, 2017.
6The reasons for the Board’s decision follow.
The Law
7The relevant sections of the Act 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.
Background
8The Child was born on [ ]. He was hospitalized for the first month of his life due to having exhibited withdrawal symptoms which were caused by his mother’s use of illicit drugs during pregnancy.
9The Child’s maternal grandfather was a member of the Band. However, the Child is not eligible for status under the Indian Act.
10The Child was apprehended by the Respondent Society on July [ ], 2016 under a Temporary Care Agreement and was placed in an interim foster placement for one month before being transferred to the home of the Applicant. The Child became a Crown Ward on June [ ], 2017 for the purpose of adoption.
11The Applicant had been a foster parent since 2006 and, although she had fostered a number of young children, the Child was the first infant to be placed in her care. Her daughter, who lives in the home of the Applicant and is deemed to be the alternative care giver to the Child, also has a toddler of the same age as the Child.
12The Respondent stated that at the time of apprehension, the intent was to place the Child with the biological family. Indeed, the Respondent, the Applicant, Family B and the Band were all in agreement that the primary wish was that the biological parents would develop the capacity to resume their role as parents. At the time of placement with the Applicant, this was the plan with the birth parents.
13The Respondent further stated that the Child was placed temporarily with the Applicant from the outset with the view that if the Child was not able to return to the care of the birth parents that the Child would be adopted by members of the biological family.
14Evidence was provided by the Respondent and the proposed adoptive parents [one of whom is the cousin of the Child’s birth mother (Family B)], that they initiated contact with the Respondent at the time of the birth of the Child and before placement with the Applicant to declare their desire to adopt the Child. Once Family B came forward, the Respondent gave evidence a number of times through three different witnesses to the Board that no serious consideration was given to the Applicant because “family takes precedence”. Family B was part of the planning process from the outset.
15Family B expressed that they had an established relationship with the extended family and blood ties to the biological mother and grandmother of the Child. As stated above, the proposed adoptive mother is a cousin to the biological mother and a niece to the grandmother.
16The Respondent stated that Family B have meaningful and regular contact with members of the Child’s extended family such as the grandmother and siblings regardless of the geographic distance between them and other family members. The
Society stated that Family B had put forward a family plan very early in the planning process for the Child and had completed the prerequisite training and Safe Home Study. The adoptive plan was robust in its assurance of the transmission of Anishnabwe culture and the maintenance of family ties.
17The proposed adoptive mother does not have an Indigenous background. However, the proposed adoptive father, although not from the same First Nation as the Child, identifies as Anishnabwe, was raised and continues to live an Indigenous lifestyle and values the traditions, culture and ceremonies of his First Nation. In his former marriage, he adopted and continues to raise his daughter who is from his own extended family. The proposed adoptive family lives in Alberta.
18The biological grandmother has custody of and cares for one sibling (age 12) and one cousin (age 8) of the Child. The Respondent has facilitated access visits between the grandmother and the Child. During some of the more recent access visits, the Child has spent time with his sibling and cousin in order to develop familial relationships. Furthermore, a second sibling is in the custody of and cared for by a friend of the biological grandmother such that all three children have recently had the ability to spend time with the Child.
19Family B, through their maintenance of contact with the biological grandmother by telephone and social media on a weekly basis, have secondary contact with the siblings. When they have had the occasion recently to visit the Child in Ontario, they include all members of the extended family in their activities and plans. Testimony of the Respondent and the Parties indicated that the Child had begun to bond with Family B during these visits that lasted, at times, for 24 hours. Finally, the grandmother visits with this family in Alberta annually.
20The Applicant explained that the Respondent had not initiated or arranged access visits between the Child and his siblings, grandmother or other extended family in the presence of the Applicant. The Child was picked up by a volunteer driver for his visits with the biological grandmother. She therefore had not cultivated those familial
relationships. The Applicant also indicated that these access visits were irregular and the grandmother had missed 11 visits.
21As there was no contact between the Applicant and the biological grandmother, in her testimony the grandmother indicated a distrust of the Applicant. Furthermore in her testimony, the Applicant indicated that if she was the successful adoptive parent, she would offer access between the grandmother and the Child initially through the supervised access centre. This also illustrates distrust between the Applicant and the grandmother of the Child.
22Also, the Children’s Service Worker (CSW) testified that there was overt distrust on the part of the Applicant and Family B and the grandmother. This was demonstrated by her resistance to interact with either or to facilitate visits.
23The major contention between the Applicant and the Society as expressed by the Applicant was the failure on the part of the Respondent to acknowledge the expressed interest of the Applicant to adopt the Child. The Applicant testified consistently that she had been clear in her expression of her intention to adopt but no follow up occurred on the part of the Respondent and no one took responsibility on behalf of the Respondent to mediate this situation.
24From the documents provided to the Board and the testimony of the Applicant and witnesses, the following is the sequence of events that led to the breakdown of communication between the Applicant and the Respondent and the subsequent dispute:
August 24, 2016, Family Centered Case Conference (FCCC) concluded that the Child would be reintegrated with the biological parents if possible. Family B had already come forward with their intention and kinship plan for adoption. The Applicant was unaware of this plan.
November 16, 2016, supervisor’s note to file that if the Child becomes available for adoption that the kinship placement out west be the plan.
November 24, 2016, at the FCCC, no reference was made to the Applications desire to adopt the Child. Plan continued to move forward regarding Family B.
February 3, 2017, in the supervisor’s note to file, indication that there was still interest in a permanency plan with the kinship family out west.
February 21, 2017, the Applicant told the CSW that she would like to adopt the Child if the family plan was not successful. The Applicant was referring to a plan with the biological/birth parents.
April 19, 2017, at the FCCC, Applicant did not put forward a plan but became aware of the intention of the Respondent to support the kinship plan with Family B. The Applicant went to the CSW and stated that she was upset with the decision of the Respondent. The Applicant stated that she felt that she had not been heard by the Respondent. The CSW referred the Applicant to the Resource Worker for resolution.
April 27, 2017, the Applicant wrote a complaint letter to the Respondent outlining her concerns about the process and that her wishes had not been taken into account from the onset regarding the adoption of the Child.
May 5, 2017, the Applicant stated that she would like to put forth a plan and felt that because she had cared for the Child for more than six months that she had a right to have her plan considered. The Resource Worker told the Applicant that members of the biological family had already put forward a plan which the Respondent was supporting.
June [ ], 2017, Crown Wardship with the purpose of adoption was ordered by the court.
June 28, 2017, Family B arrived in Ontario to take custody of the
Child.
25The Respondent asserted to the Board that there is no obligation to give notice to a foster parent of a potential plan for adoption until a child had been in continuous care of that foster parent for two years.
26The Applicant's position expressed to the Board was that the Child had experienced disruption at the time of birth with his removal from his biological mother and then a second attachment disruption when he was removed from the intake foster home at two months of age.
27The Applicant believes that she has a loving, secure attachment bond with the thirteen month old Child that should be sustained. She also believes that a move to Alberta would be disruptive to the Child and diminish his ability to access his heritage, ancestral territory and culture. She is willing to offer an open adoption to include the biological mother in the Child’s life when and if that became a possibility. She also would allow open access to siblings and biological grandmother who lived in close geographic proximity to the Applicant. She testified that she is the Child’s Auntie and has no intention of denying the Child his rightful relationship with family and community.
27All parties agree that the Applicant had provided the Child with exceptional physical and emotional care while he has resided in her home. She provided the Child with a nurturing environment and surrounded him with the supports he required to thrive. As a result the Child is healthy, meeting all his developmental milestones and is engaged with enthusiasm with the world around him.
28The representative of the Band testified that no member of the Child’s band was identified as a potential parent, that the Band was interested in a permanency plan with extended family and that the Band supported the plan of Family B. The representative of the Band testified that this plan met the test of the best interests of this Child considering the meaning attributed to the principles and values of best interests from an Indigenous perspective. The Band representative further testified that Family B could provide a lifelong continuity of care to the Child that could not be provided by the Applicant due to her stage of life.
29In their summation, the Band expressed that both the Applicant and the Family B offer good placements for the Child and “one does not outrank the other”. Both the Applicant and the Parties offer cultural plans that are acceptable. The respectful submission of the Band was that regardless of the decision of the Board, there will be a “loss”.
30Under one plan, the Child will lose his primary caretaker and the sense of family that he has known in order to have a “meaningful robust lifelong relationship with family
and community”. Alternatively, the Child will lose his direct ties to his Indigenous community, heritage and potentially his descendants if he remains in the care of the Applicant due to the active distrust of the Applicant displaced by the extended family. The Band stated that the decision of the Board should be determined by “which loss could be best mitigated”. The Band believes that the best avenue with the best potential outcome is for the Child to “live and grow with (Family B)” and maintain a relationship with the Applicant. The Child will “know who he is, who his relatives are and this is the best prospect for meaningful relationships which is consistent with the Band’s way.”
31The Band stated that “its custom is to place children with extended family, not a stranger”. The Band also indicated that they would facilitate a healing circle to assist with the “pain, fear, anger and sadness” that has been generated by the conflict over the adoptive placement of the Child. The best outcome according to the Band is to foster the relationship between the Applicant and Family B as that is in the Child’s best interest.
ANALYSIS
32Although the Applicant expressed significant concerns about the manner in which her requests to be considered as a possible adoptive home for the Child were dealt with or mishandled by the Respondent Society, the focus of the Board’s inquiry in this Application is determined by s.144 of the Act, as set out below.
Section 144
33In 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 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.
34The 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.
35In the case at hand, the Board focussed on paragraphs 2, 3, 5, 6 and 7 of s.136(2) which are reproduced below:
The child’s physical, mental and emotional level of development.
The child’s cultural background.
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.
36The Applicant’s commitment to the Child is unquestionable. It is clear from the evidence of all concerned that the Child has received warm, loving and extremely good care in her home and, as a direct result of her efforts on his behalf, he is described as a happy, engaged and lively child. Despite his pre-natal exposures to substances, he has met all developmental milestones and continues to thrive.
37Similarly, Family B has the proven capacity to provide for the Child’s physical, mental and emotional level development as evidenced in the testimony of the parents and the Safe Home Study. The Child would reside in a family surrounded by step- siblings, loving parents, sports and recreational activities, opportunities for educational success and supports if special circumstances or needs arise.
38The Board notes that the Child’s Band has been involved throughout the process, that it has weighed the options open to the Child and concluded that the Child’s best interests from an Indigenous perspective are served by remaining within his extended family. The Board agrees with this perspective.
39Although the relationships between the Child’s extended family and the Applicant could have been better nurtured, the reality is that they were not. The parties are not comfortable with each other and there is a significant amount of distrust. This militates against a placement for adoption with the Applicant.
40The Child has two full siblings; one of whom resides with his grandmother and another with the grandmother’s lifelong friend. The likelihood of the Child establishing a close and lasting relationship with those siblings is higher if he is placed with Family B than with the Applicant, given the ease in the relationships between the prospective adoptive mother (herself a member of his extended family) and others involved with those siblings. This is likely true despite the geographic challenges that placement of the Child in Alberta would raise.
41The Applicant, a Metis woman has the ability to establish and sustain a connection between the Child and his ancestral territory, culture and his Band. Although the Child does not have status, the Band would welcome his participation in his community ceremonies and cultural events.
42Family B would not have the same capacity due to geographical distance. Family B is committed to returning to the Child’s traditional territory annually. This may not be sufficient to fully integrate the Child into his land, language, culture and community. The
Child however would be fully immersed in the Anishnabwe traditions and culture of the adoptive father and that of his step-sister. Traditional practices of hunting, fishing, the use of bow and arrow, games, Pow Wows and ceremonies would be encouraged by the father by way of direct participation of the Child with the father and through teachings.
43The Board acknowledges that the Band understands that the likelihood of the Child living in and understanding his ancestral territory may be diminished if he lives with Family B. However, the Board also concurs with the wisdom of the Band as they weigh the best interest of the Child from an Indigenous perspective. The Band’s clarity about the importance of the Child living with “blood” relatives was recognized by the Board in its decision.
44The Board also understands the importance of continuity in the care of the Child and the impact of interruption to that continuity. Whereas the Applicant states that there have already been disruptions in the young life of this Child, the fact remains that he was able to readily bond with members of Family B in their recent visits with the Child. This could speak to the secure attachment offered by the Applicant in the Child’s development that was generalized to meaningful others.
45Family B is a newly formed blended family with the parents having recently been married. They are dedicated to nurturing meaningful, lifelong family relationships with all the children that incorporates Indigenous culture and ways of life.
46Alternatively, the Applicant who is approaching her 60’s acknowledges that she relies on her daughter as an alternate caregiver to share in parenting when she is unavailable to parent the Child. This may impact the ability of the Child to rely on her as the primary caretaker to parent him throughout all the important developmental milestones and transitions in his life. The Board necessarily took this into account in its decision.
47The Board weighed all factors presented to it, related to paragraphs 2, 3, 5, 6 and 7 of s.136(2) and, in particular, considered the recommendations of the Band in making its decision.
49The Board also notes that had the Respondent been forthright and honest with the Applicant about its adherence to the philosophy that “family takes precedence” and that it supported Family B’s plan to adopt the Child from the outset of involvement with the Child, the Applicant may have invested her time and energy into fostering a different kind of relationship with the Child, his siblings, extended family and Family B as an Auntie.
50The Board also wishes to reinforce the importance of the offer made by the Band to facilitate a Healing Circle to bring together all parties on behalf of the Child.
51The Board finds, therefore, upon consideration of all relevant best interest factors that the decision of the Respondent should be confirmed.
ORDER
52On August 18, 2017, 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 Applicant is confirmed under subsection 144(11) of the Child and Family Services Act (the “Act).
CONFIDENTIALITY ORDER
53Pursuant 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.
54The Board will permit the use of its decision and these reasons in any adoption proceedings involving the Child.
Jay Sengupta
Jay Sengupta
Presiding Member
Judy Finlay
Dr. Judy Finlay
Panel Member
John Hamilton
D. John Hamilton
Panel Member
Dated at Toronto, Ontario on the 13th day of September, 2017.