CHILD AND FAMILY SERVICES REVIEW BOARD
K.P. & N.P.
v.
Children’s Aid Society of Algoma
REASONS FOR DECISION ON MERITS
Indexed as: K.P. & N.P. v. CAS of Algoma (CFSA s.144)
INTRODUCTION
1The Applicants, K.P. and N.P., applied to the Child and Family Services Review Board (the “Board”) for a review of a decision made by the Children’s Aid Society of Algoma (the “Society”) to refuse their application to adopt the child, J.P., born the […] day of February, 2005. A formal letter from the Society dated the […] day of September, 2007 was sent to the Applicants advising them of this decision as required by subsection (2) of section 144 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). The relevant provisions of section 144 with respect to a review by the Board are as follows:
144(1) This section applies if,
(a) a society decides to refuse an application to adopt a particular child made by a foster parent, or other person
(3) A person who receives notice of a decision under subsection (2) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the decision subject to subsection (4).
2It is the position of the Society that it is in the best interests of J.P. to be placed for adoption with his biological sibling, S.H. (“S.H.”). Since the Applicants only wish to adopt J.P., the application to adopt J.P. by these Applicants was refused and the Society is asking the Board to confirm the decision made by the Society. It is the position of the Applicants that it is in the best interests of J.P. that he be adopted by them and that the decision of the Society to refuse this application be rescinded. A hearing took place before the Board in Sault Ste. Marie on November 27th and 28th, 2007, with a continuation on February 25th, 2008.
BACKGROUND
3K.P. and N.P. are foster parents for the Society and in that capacity have acted as foster parents to J.P. continuously from May […], 2005 to the present time. The Ps’ are the biological parents of two children, A., who is seventeen years old, and K., who is fifteen. The Ps’ adopted another child J. in 2007, who was placed in their home as a foster child in June 2005.
4J.P. had been placed previously with the Applicants from March […], 2005 to April […], 2005. Between May […], 2005 and November 2006, the Society was pursuing a plan for the child that would result in reintegration into the home of one of his biological parents. In February of 2006, after his parents’ relationship ended, the biological mother of J.P. moved out of the area and no longer pursued contact with him. The Society continued to work with the biological father with a view to returning the child to his care, but that plan was ultimately unsuccessful. During unsupervised visits between the child and his father, there were continuing issues of neglect, poor parenting, unsanitary conditions and substance abuse. In December of 2006, access visits between the child and his father became fully supervised due to verified drug use by the father during an access visit of November […], 2006. In May of 2007, the father advised the Society that he no longer wanted contact with his son and an order for Crown Wardship with no access was made on the […] day of June, 2007.
5The Applicants expressed interest in adopting J.P. in the fall of 2005 and have been consistent in expressing that interest to date. In August of 2006, the Applicants also became foster parents for another child, S.H.. S.H., born on August […], 2006, was apprehended by the Society at birth and was placed in foster care with the Applicants where she has remained to date. On July […], 2007, S.H. became a Crown Ward with no access and available for adoption. There was some evidence that S.H. appears to have developmental delays. She has been involved with the Infant and Child Development Program of the Algoma Health Unit and with the Children’s Rehabilitation Centre Algoma. S.H. is the biological sibling of J.P. and they share the same biological mother, but have different biological fathers.
6On February […] 2007, at a meeting between the Applicants and the Society, the Applicants were advised of the practice by the Society to keep siblings together and its position that J.P. and S.H. would have to be adopted together. For various reasons, the Applicants are not in a position to adopt both children and wish to continue with their application to adopt J.P., with long term planning for S.H. in a placement outside of their home. The Applicants are supportive of an open adoption provision whereby contact between J.P. and S.H. may continue after each child has been adopted by separate families. As a result of the P’s decision, the Society refused their application to adopt J.P..
7The legislation requires the Board to either confirm or rescind the decision under review and to provide written reasons for its decision. The relevant provision is as follows:
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.
8In considering the best interests of a child, the Board must take into consideration the circumstances detailed in subsection 136(2).
ANALYSIS
9The Society called evidence from S.D., Child Protection Supervisor, L.R., Supervisor of Permanency Planning and Adoption, B.C., Child In Care Worker, and H.M., Adoption Coordinator. As well, the Society called Dr. B.M., Ph.D., RSW as an expert qualified to give opinion evidence in the area of parenting capacity assessment and adoption. A report from Dr. B.M. dated the […] day of September, 2007 was filed in evidence in this proceeding.
10The Board also heard testimony from the Applicants and J.B., daycare provider to J.P. and S.H.. The Applicants produced a report from Dr. B.B. dated November […], 2007 (Exhibit A3) and Dr. B.B. attended to give oral evidence. Dr. B.B. was qualified, on consent, as an expert in the area of attachment theory and parent capacity assessment and was not qualified beyond those areas.
Emotional Vulnerability
11It was clear on the evidence that J.P. had suffered from neglect as a result of poor parenting not only before Society intervention, but also during the time period that unsupervised access occurred while the Society was working with the biological father in an attempt to reintegrate J.P. into his care.
12Ms. S.D. testified that the Society became involved with the biological parents of J.P. in December of 2004 due to issues of poor parental care and marginal hygiene in the family home, as well as mental health issues for the biological mother and a history of substance abuse for the biological father. This witness provided a great deal of the background information regarding the neglect that J.P. had received both before and after the Society’s intervention.
13K.P. testified that J.P. started to have overnight visits with his father in August 2006. She reported that when J.P. returned from these visits he was a different child. She saw a regression in his speech, found that his behavior was out of control, where he would have angry outbursts, not use utensils and throw food on the floor. She also testified that he experienced night terrors from which she had difficulty waking and consoling him. She reported that whenever she dropped him off for the visits, J.P. would cry when pulling into the driveway and would continue to cry as she was leaving, and would cry, shake and hold onto her coat when she returned to pick him up after the visits. She reported that J.P. still experiences approximately two to three nightmares daily, but finds that he is more easily comforted.
14J.B., a daycare provider for J.P. and S.H., gave evidence with respect to J.P. and was able to confirm certain elements of his concerning behaviors such as clinginess, temper tantrums and a need to know where everyone is all the time. This witness also described J.P. as being a very emotional child.
15Dr. B.B. testified that during the long period of access visits with his parents, J.P. formed an insecure base of attachment. The Applicants were his only secure base. She stated that because trauma occurred when J.P. was pre-verbal, he has elevated emotional vulnerability,an attachment vulnerability, which was evidenced by his regression when he returned from visits and his continued night terrors. She opined that a new placement for J.P. could cause heightened distress for him leading to further emotional harm and possible regression.
16The evidence demonstrates that J.P. is particularly vulnerable, even at this time, and continues to be subject to night terrors, tantrums and still requires special coddling, all of which the Board considers significant in terms of a move for this child at this time. The Board agrees with the Society’s position that most children who come into care are there because of some trauma and that there would be some psychological scarring because of this. However, not all of these children display the emotional vulnerability of J.P.. The Board accepts Dr. Dr. B.B.’s testimony that J.P. is particularly vulnerable, as evidenced by his present and past reactions to his early trauma, and that a move from the P’s home, where he has securely attached, could lead to further emotional harm and possible regression.
Attachment to Foster Parents
17There was no dispute that the Applicants are good people with excellent parenting skills, who cared well for both J.P. and S.H.. B.C. confirmed that the Applicants first expressed interest in adopting J.P. in conversation with him in the fall of 2005, almost one year before the birth of S.H.. It also was acknowledged by the Society that J.P. is appropriately attached to the Applicants.
18The Society’s evidence was that because J.P. was able to form a healthy attachment to the Ps’ he would be able to form a healthy attachment to new adoptive parents.
19It was the evidence of Dr. B.B. that K.P. continues to provide a secure and safe attachment for J.P., who may still be psychologically depleted as a result of difficulties from the relationship with his biological parents.
20Dr. B.B. spoke of the possible impact on J.P. in moving him from the Applicants’ residence, which could entail difficulty with attachment in a future setting (unless placed with exceptional adoptive parents) and spoke of the risk of related attachment issues for J.P. such as conduct disorder and behavioural problems should he be moved.
21Dr. B.B. also noted the elevated vulnerability J.P. is experiencing which she attributed to the fact that he was under age one when the neglect/abuse occurred. It is the opinion of Dr. B.B. that in balancing the track record that J.P. has with his foster parents and J., as compared to a move and a future placement with S.H., the best interests of J.P. would dictate that he remain with the Applicants.
22The Board finds that there is a significant risk to J.P.’ emotional health if he is moved from the Applicants’ home because of his attachment to them as secure caregivers.
Separation of Siblings
23The Society led evidence from the Supervisor of Adoption, L.R., and from H.M., the Adoption Coordinator, with respect to the practice of not separating siblings and specific reference was made to a document SS AS – PROG.013 – Adoption Planning. This document states that the Society shall, wherever possible and deemed appropriate, attempt to place siblings who have an established relationship together in an adoptive home. This is in large part due to the positions now being put forward by adult adoptees with respect to the importance of these relationships to them. In this particular case, the Children’s Planning Committee recommended in May of 2007 that an external expert in the field of adoption and sibling attachment be retained to assess this situation and to make recommendations. As a result, Dr. B.M. was retained on June […], 2007.
24The Society evidence was generally that the children, J.P. and S.H., should be placed for adoption together and that placing these children for adoption together would not be difficult. This was based primarily on the Society’s belief that the best practice is to keep biological siblings together, and that this is accepted throughout Canada and the United States. The Adoption Coordinator, H.M., confirmed meeting with the Applicants on February […], 2007 and advising them of the practice to keep siblings together and noted that at that time, J.P. was not legally free for adoption. This witness gave evidence that J.P. and S.H. are highly adoptable and that there would be a number of families that would be willing to adopt both children in spite of S.H.’s delays. The witness also spoke to open adoption as being a fairly new concept, but a concept considered in a very positive fashion by adoptees (although the process could lead to disappointment).
25By correspondence dated July […], 2007 from the Society (Exhibit R4), Dr. B.M. was retained for the purpose of an Adoption Needs Assessment and was asked to provide “assistance in determining a permanency plan for these children that is in their best interests and that meets their needs.” Dr. B.M. attended and gave oral evidence and described her terms of reference as being to assess and make recommendations for adoption planning regarding J.P. and S.H..
26Dr. B.M. recommended that J.P. and S.H. be placed together in an adoption home that is prepared to deal with any possible special needs resulting from S.H.’s current physical delays. It was the opinion of this witness that J.P. will lose less now by staying in the foster home but in the long term being separated from a sibling he has lived with since her birth has a strong potential to create future emotional harm for J.P.. Dr. B.M. noted that J.P. and S.H. are attached to the foster parents and bonded to each other and that J.P. has bonded to all of the members of his foster family, even though she did not observe the interactions between the family members.
27During examination by counsel for the Applicants, Dr. B.M. adopted the definition of “sibling” used by S.K.T. in her article “Sibling Adoption” which is as follows: “Children who share one or both biological parents, children who have lived together in placements or close proximity, and “fictive” siblings with whom children have connections based not on blood, but on caring relationships.”
28Dr. B.B. spoke of the “profound” and “primary” bond between J.P. and his fictive sibling, J. She noted that J.P. and J. had similar early experiences, were placed in the P.’s care at approximately the same time and shared the same bedroom. She opined that they were able to be a support for each other and have formed a primary sibling relationship, which if broken would be detrimental psychologically for both J.P. and J.. It was the evidence of Dr. B.B. that the bond between S.H. and J.P. is not as strong because of S.H.’s developmental delays. She observed that S.H.’s ability to form bonds is weak and she does not seek to engage others, as would be expected of a child her age. Dr. B.B. noted that because the bond between J.P. and S.H. is impoverished, the loss of this bond may not be as significant to him as the loss of his bond with J..
29The Board is reluctant to place considerable weight on Dr. B.M.’s recommendation since it was clear that Dr. B.M. saw her purpose as investigating to see if there was any reason to separate these siblings and not specifically to assess the needs of J.P.. In this regard, Dr. B.M. spent less than one hour in the Applicants’ home and did not take that opportunity to observe the interaction between the Applicants and children and between J.P. and his sibling and fictive siblings in any meaningful way. She based her recommendation primarily on the literature on the effect of separating siblings, not on the effect of separating the child J.P. from his siblings. Dr. B.B., spent over four hours in the Applicants home, observing the interactions between J.P. and his siblings. She is, therefore, in a better position to give an opinion on the impact of separating J.P. from his biological and “fictive” siblings and, accordingly, the Board gives more weight to her evidence.
30The Board finds on the evidence that J.P. has a close and special relationship with his fictive sibling, J., who came into foster care with the Applicants at about the same time as J.P.. The Board finds that the importance of this relationship was not fully explored and taken into account by Dr. B.M. and, in particular, in the context of other evidence which generally supports the proposition that the bond between J.P. and his sister, S.H., may not be as strong as the bond with J..
CONCLUSION
31The Society argues that this Board has to determine if it would be better for both J.P. and S.H. to be placed together and the Board disagrees with this position. Pursuant to subsection 144(11), the Board must determine which action is in J.P.’ best interests. The Society further argues that in considering the factors listed in subsection 136(2) that paragraph 6, “the child’s relationships by blood or through an adoption order” trumps all of the other factors. The Act directs the Board to take into consideration all of the relevant circumstances which are listed and the Board does not accept the submission of the Society that this one consideration is paramount in this case.
32The Board has considered all of the provisions contained in subsection 136(2) of the Act in making a determination of which action is in the best interests of the child, J.P., and in particular the following:
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 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.
Any other relevant circumstance.
33It is the decision of the Board to rescind the decision under review so that J.P. may be adopted by his foster parents, K.P. and N.P.. In coming to this conclusion, the Board has remained cognizant throughout of the provision in paragraph (6) of subsection 136(2) of the importance of a child’s relationship by blood.
34The Board acknowledges the evidence presented that it is a best practice not to separate blood siblings and that wherever possible and deemed appropriate an attempt should be made to place siblings with an established relationship together. In this case, the Board does not find such placement appropriate. The Act requires that the Board considers the multiple factors listed in subsection136(2) and, after careful balancing of the relevant considerations, the Board finds that the trauma which J.P. would experience as a result of separation from his only secure attachment figure, K.P., and his fictive sibling, J., in light of his earlier parenting experience and emotional vulnerability, is unacceptable.
35It is the decision of the Board that it is in the best interests of J.P. that he remain in the home of the Applicants and be adopted by them. Remaining in his current residence where he has a strong and positive attachment to the Applicants and a significant bond to his fictive sibling, J., is in the best interests of J.P..
DECISION
36The Board finds that it is in J.P.’s best interests to remain in the care of and be adopted by N.P. and K.P. and rescinds the decision of the Children’s Aid Society to refuse their adoption application.
Gregory Price
Presiding Member
Lorna King
Board Member
Densye Diaz
Board Member
Dated at Toronto, Ontario this 20th day of March, 2008.