L.G. & A.G. v. Children’s Aid Society of Nipissing and Parry Sound, 2008 CFSRB 104

CHILD AND FAMILY SERVICES REVIEW BOARD

L.G. & A.G.

v.

Children’s Aid Society of Nipissing and Parry Sound

REASONS FOR DECISION ON JURISDICTION & MERITS

Date: December 23, 2008

Citation: 2008 CFSRB 104

Indexed as: L.G. & A.G. v. CAS of Nipissing and Parry Sound (CFSA s.61)

INTRODUCTION

1The Applicants, L.G. and A.G., filed an application with the Child and Family Services Review Board (the “Board”) on May 20, 2008 pursuant to section 61 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). The Applicants are appealing the decision of the Children’s Aid Society of Nipissing and Parry Sound (the “Society”) to remove two foster children from their care.

2The children are native and are with the [ ] Band. The Band did not participate in the hearing. The children were represented by Judy Shea, counsel appointed by the Office of the Children’s Lawyer.

3The Board must decide whether to return the foster children, R.W. and M.W., to the care of the Applicants. The issue in this application, given the needs of R.W. and M.W., is whether their best interests were served by the Society’s decision to remove them from the care of the Applicants. The Applicants are of the opinion that their home is safe and provides the much needed structure which R.W. and M.W. require. The Applicants also believed that the removal of the boys from their home was the result of a flawed investigation conducted by the Society. The Society believes that its investigation into the claims was thorough and that the claims of abuse were substantiated. This resulted in their decision to take steps to protect the children by removing them from the Applicants’ home.

BACKGROUND

4The Applicants have been foster parents since 1996. R.W. and M.W., twin brothers, date of birth June […], 1992, lived with the Applicants for about 7 years. Another foster child, K.T., also lived with the Applicants during the same time as the W. boys. K.T., at the request of the Applicants, had been transferred into another foster home. At her new foster home, K.T. began to share with B.B., her current foster parent, and M.G., Society Child Care Worker, what she claimed were abuses experienced during her stay with the Applicants. On February […], 2008, the Child Care Worker met with K.T. and her current foster parent and documented K.T.’s allegations about her experience living with the Applicants. The worker informed her manager at the Society; this resulted in an investigation to review the allegations made by K.T.. The Society removed R.W. and M.W. from the home of the Applicants on February […], 2008 for relief, pending the outcome of the investigation. The boys were never returned to the Applicants. Upon the completion of the Safety and Risk Assessments, the decision was made by the Society to close the Applicants’ foster home. The investigation revealed that there were child protection concerns related to the treatment and care of children at the home of the Applicants. A letter confirming that the Applicants’ home was closed and that their contractual relationship with the Society was terminated was sent to the Applicants on April […], 2008.

Jurisdiction

5Legal counsel for the Society, Mr. George Olah, stated in his closing arguments that the Board does not have jurisdiction to hear this application under section 61 of the Act because the Applicants were no longer foster parents at the time they made the application and that they were not given notice pursuant to section 61(7)(a) because the Society did not see this as a case of “Proposed Removal” but as a Safety Apprehension pursuant to section 37(2) of the Act. It is the opinion of the Society that should the Board rule against its decision to remove the W. boys from the care of the Applicants, there would be no licensed home for the boys to return to since the Applicants’ home had been closed. This would mean that “the Board’s decision to return the children would lack jurisdiction.” It is the Society’s position that it had a mandatory obligation under section 37(2) of the Act to apprehend the W. boys and that the Board does not have the jurisdiction to review this action of the Society.

6The Board is of the view that at the time the children were removed by the Society from the Applicants’ home on February […], 2008, they were foster parents and maintained a licensed foster home.

7Section 61(7) states:

If a child is a Crown ward and has lived continuously with a foster parent for two years and a society proposes to remove the child from the foster parent under subsection (6), the society shall,

(a) give the foster parent at least 10 days notice in writing of the proposed removal and of the foster parent’s right to apply for a review under subsection (7.1); and

(b) if the child is an Indian or native person,

(i) give at least 10 days notice in writing of the proposed removal to a representative chosen by the child’s band or native community, and

(ii) after the notice is given, consult with representatives chosen by the band or community relating to the plan for the care of the child.

8The Applicants were advised on February […], 2008 to bring R.W. and M.W. in for a relief placement weekend. The children did not return to the home of the Applicants.

9On March […], 2008, the Applicants were advised of a decision made by the Society to close their foster home. That decision was put on hold as one of the children expressed interest in returning to the Applicants’ home. In a letter dated April […], 2008, the Society confirms the decision to close the foster home of the Applicants and on April […], 2008, a letter was sent to the Applicants clarifying the investigation findings of the Society.

10At the time of removal of the children, the Applicants were foster parents. As such, the Board has jurisdiction of their application under section 61.

11At the commencement of the hearing, counsel for the Society asked the Board if it had jurisdiction to return a child to a closed foster home. The Board acknowledged that it did not have the authority to order that a license for a foster home be reinstated.

ANALYSIS

12The Applicants expressed disappointment in the erroneous technique and investigative practises which the Society employed in this case. That matter, however, is separate and apart from what the Board is required under the Act to consider. Section 61 requires the Board to consider what is in the best interest of the W. boys notwithstanding the circumstances of their removal from the Applicants’ home.

13Section 37(3) of the Act states:

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 and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.

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

8. The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

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

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

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance.

14The following criteria apply to this application:

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

15The Society maintains that the parenting style of the Applicants was such that the children in their care manifested anti-social and inappropriate behaviour. The Board heard the testimony of A.L., the Society Intake Worker, that M.W. would go to his room to avoid conflict with the family. M.G., Society Child Care Worker, noted that K.T. was so afraid of disturbing the Applicants if she went to the washroom during the night, that she would choose to urinate on her bedroom floor. The Board also heard evidence that foster children in the Applicants’ home felt that the Applicants’ biological children were treated better and were held to a different standard than that of the foster children. Overwhelming evidence was also presented outlining the various restrictions to which the foster children in the Applicants’ home had to comply. These included not being allowed to cross an imaginary line in the kitchen, the exclusion of sugar from their diet, no access to knives, having to ask to go outside, having to ask for seconds at meals, not allowed use of the television remote control, not allowed to go into the Applicants’ bedroom and being told “NO” frequently. L.H., Resource Supervisor with the Society’s Foster and Adoption program, further stated that there was no age appropriate activity for the boys.

16The Applicants argued that the restrictions were necessary because of the needs of the foster children and argued that their actions were in keeping with the practise and norms in the foster care industry and that the Society’s worker was aware of their approach since they were often discussed.

17The evidence before the Board does not suggest that there was intentional abuse on the part of the Applicants. However, because their approach to parenting was restrictive, there were some negative emotional effects on the children in their care.

3. The child’s cultural background.

18While living with the Applicants, the W. boys had limited access to their native history and culture. At their current placement, they are attending a Native focused school and the Society is providing $5,000 in financial assistance towards the educational needs of each child. The Society maintains that this vital financial assistance would not be available to the boys if the Board ruled in favour of returning them to the Applicants since the Applicants are no longer approved foster parents. The Applicants stated that, while the boys were in their care, attempts were made to get the boys into a school which would have provided them with native focused education, but that the Society was not helpful in this respect.

19The Board acknowledges the importance of providing opportunities for the boys to learn their native cultural and history in a school setting. The Board believes that it would be regrettable, at this crucial time in the development of the boys, for them to lose this vital financial support which ensures exposure to their native culture and at the same time, provide educational opportunity which will help them develop to their fullest potential.

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

20The Board heard testimony from expert witness S.C., Director of [ P ], an independent counselling service that interviewed both R.W. and M.W. in June 2008. She testified that since the boys were given greater freedom at their current placement, it would be difficult for them to revert to the more restrictive environment of the Applicants’ home. Moreover, Ms. S.C. was also of the opinion that the whole investigation process has disenfranchised the Applicants in the eyes of the boys. Ms. S.C. did not think it would be in the best interest of the boys to be returned to the Applicants because their needs were beyond what the Applicants are financially equipped to provide.

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

21The Board heard evidence from M.B., Society Child Care Worker, that the boys did not wish to return to the Applicants although they wanted to maintain contact with them. The disinterest in returning to the Applicants’ home had little to do with the alleged treatment the boys experienced and more to do with the current placement being closer to the city of [ ] where their friends were and the fact that the boys preferred the freedoms they were now afforded at their current placement.

22On June […], M.W. expressed to personnel at [ P ] a desire to return to the home of the Applicants. The Board did not hear any other evidence that the boys wanted to return to the Applicants. The Board notes that the boys are fifteen years old and are at an age where they should be able to make decisions about their preferences for foster care.

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

23The Board heard evidence from the Society that it believes that R.W. and M.W. were in need of protection and that it availed itself of the powers given to it under section 37(2) of the Act to intervene in their care. The Society believes it has a mandatory obligation under the Act to protect the boys from the abuses that were verified through its investigation. The Society is of the view that the boys would be at risk if they were allowed to remain in the care of the Applicants. Additionally, C.L., Society Child Service Worker, testified that because of their suspected Fetal Alcohol Syndrome, the boys would have difficulty readjusting to a further change in their placement if they were returned to the Applicants. As a result she did not think it would be in the boys’ best interest to move them from their current placement.

13. Any other relevant circumstance

24The Applicants are no longer licensed foster parents with the Society. By ordering the boys to return to the Applicants, the Board would be removing them from the care of the Society, their legal guardian. The Act does not give the Board the jurisdiction to reinstate a foster license to the Applicants.

25The Society has made arrangements to have the boys participate in a 60 day psychological assessment schedule to begin November […], 2008. This will involve the boys spending 5 days per week at [a children’s agency] and returning to their current foster home on the weekends. The much needed assessment of the boys would justify this temporary change of placement. This psychological assessment of the boys would not be available to them if they are returned to the Applicants. The Society is under no obligation to provide funding to children who are not residents of a foster home licensed by the Society.

26The Board has determined that it is in the best interests of R.W. and M.W. to remove them from the foster home of the Applicants.

DECISION

27The Board confirms the decision of the Society to remove R.W. and M.W. from the foster home of the Applicants.

Ruth Ann Schedlich

Presiding Member

Donald Butler

Board Member

Frances Sanderson

Board Member