L.G. v. The Children’s Aid Society of Hamilton, 2008 CFSRB 53

CHILD AND FAMILY SERVICES REVIEW BOARD

L.G.

v.

The Children’s Aid Society of Hamilton

REASONS FOR DECISION ON MERITS

Date: May 30, 2008

Citation: 2008 CFSRB 53

Indexed as: L.G. v. The CAS of Hamilton (CFSA s.61)

Related Decisions: Reasons for Decision on Jurisdiction: L.G. v. The Children’s Aid Society of Hamilton (CFSA s.61), 2008 CFSRB 38

1These are the reasons of the Child and Family Services Review Board (the “Board”) in an application made on March 13, 2008 by L.G. (the “Applicant”) under section 61 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”) regarding the removal of a foster child from her care by the Children’s Aid Society of Hamilton (the “Society”). The Society removed J.W. (d.o.b December […], 1992), a Crown Ward, from her treatment foster home on March […], 2008.

BACKGROUND

2J.W. lived with the Applicant and her husband for approximately four and a half years. He is severely autistic and non-verbal and requires a significant amount of personal care. The G.’s treatment foster home is one of three managed by a family service (“Agency”), termed an “Outside Paid Resource” (“OPR”). The Society contracts directly with the Agency for foster services, which in turn contracts with the Applicant as the foster parent.

3The Society concedes that it never sent a written notice regarding its proposed removal of J.W. as contemplated under section 61(7)(a), to either the Agency or the Applicant. The Society informed G.B., Executive Director of the Agency, via telephone message on February […], 2008, that J.W. would be removed within the next 2-3 weeks. G.B. was away due to surgery and his replacement received the message. The Agency passed the message on to L.G. and D.G. G.B. received a letter from the Society to confirm the impending removal, on March […], 2008.

4The Board held a hearing into the merits of the application on May 15, 2008. The Applicant and her husband, D.G., represented themselves. G.B., Executive Director of the Agency, and B.D., Program Manager, were also present. Present on behalf of the Society were David Feliciant, Counsel, K.C., Supervisor of OPR Placement Resources, and M.M., Director of Children’s Services.

RELEVANT LEGISLATION

5Section 61 of the Act states:

Change of placement

(6) The society having care of a child may remove the child from a foster home or other residential placement where, in the opinion of a Director or local director, it is in the child’s best interests to do so.

Notice of proposed removal

(7) 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)

Application for review

(7.1) A foster parent who receives a notice under clause(7)(a) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the proposed removal.

Board decision

(8.6) The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm the proposal to remove the child or direct the society not to carry out the proposed removal, and shall give written reasons for its decision.

ANALYSIS

6It is clear that the Applicant did not get notice of a proposed removal of the foster child, as required by legislation. Counsel for the Society argues, however, that this omission by the Society is a separate issue from whether or not it is in the best interests of the child concerned, to be removed from the Applicant’s home. We agree. While it complicates the question of the remedy available following a decision of the Board, it does not affect the decision that the Board is required to make under section 61 of the Act; i.e. whether to confirm or rescind the proposed removal, according to the best interests of the child. We note that the Society confirmed at the hearing that it has made systemic changes in the way it notifies foster parents contracted through OPRs, to ensure that such an omission does not happen again.

7K.C., Supervisor of OPR Placement Resources, testified on behalf of the Society. She explained the three levels of placements available to a Society, for a Crown Ward: (i) with the Society’s foster parents, (ii) in treatment foster care through an OPR, where the child has greater needs than can be met through a regular foster home, or (iii) in a fully staffed group home. A Placement Planning and Review Committee (“PPRC”) regularly reviews the case of children placed in OPRs, to determine whether these placements continue to be the most appropriate for the child’s developing needs. Factors that go into determining whether a particular OPR is the right placement for a child are whether the home can deal with the child’s needs, whether there is current space available, and what is the current mix of residents in that home.

8K.C. testified that the Society must make decisions in the stead of a parent, for Crown Wards such as J.W. One of the key considerations is long-term stability. J.W., she testified, was doing very well at the Applicant’s home. However, the Agency has consistently raised the issue that they required more hours of extra funding, in order to care for J.W. properly.

9K.C. testified that the Ministry sets the per diem rate for care of Crown Wards placed with OPRs. The Society itself is funded at less than the per diem rate, so it has to “top-up” the funds it receives from its own budget, when it pays an OPR the stipulated per diem. In certain cases, including this one, the Society signs a “Special Rate Agreement” with an OPR, further adding to the Ministry’s per-diem rate from its own budget. Under its Special Rate Agreement, the Agency received four extra hours per day of funding on school days, and twelve hours on weekend and holiday days, to care for J.W. There has been a Special Rate Agreement in place for J.W. since he first went to live with the Applicant. K.C. testified that J.W. is alone among approximately 250 children in the Society’s care who are currently placed with OPRs, who has been on a Special Rate Agreement for such an extended length of time. They usually last approximately 1 week, in an emergency situation. As Special Rate Agreements are not funded by the Ministry, the Society must consider whether a child who requires one in an ongoing way is in an appropriate placement for his or her needs.

10The Society entered as an exhibit a letter from G.B. of the Agency dated June […], 2007. That letter officially gave four weeks’ notice to the Society that J.W. would have to be removed from the Applicant’s foster home. G.B. wrote:

In light of your decision to decrease the rate, and not look at additional hours during school days we at the Agency feel we cannot continue the care of J.W. In the current climate of supports required by J.W. to keep him safe and to challenge him to be the best he can be, and employee cost, we feel we would not be able to continue with the standard of care we have provided for this young boy up until now.

11K.C. testified that the Society had to take the June […], 2007 letter at face value, that the Agency was serious about removing J.W. from the Applicant’s home. While there were subsequent conversations that J.W. would not have to leave the foster home, the Society reasonably believed that J.W.’s placement was not particularly secure, given funding restrictions on the Society. In fact, K.C. testified that Special Rate Agreements are currently the subject of scrutiny following an Auditor General’s report, and that funding may well be reduced for treatment foster homes, rather than increased.

12K.C. testified that J.W. is a high needs child, and difficult to place. The Society must be confident that a placement is secure. In this case, she testified the Society would be remiss if it didn’t plan for an alternative placement for J.W. When an opening became available with another organization in their “Residence […]”, the Society took advantage of it. J.W. has been residing since March […], 2008 in this fully-staffed group home, in a residential neighbourhood in […]. J.W. goes to the same school that he did with the Applicant, and continues to receive speech therapy. K.C. testified that, according to what the Society knows of J.W.’s development, there have been no differences now as compared to his placement with the Applicant.

13D.G. and G.B. testified on behalf of the Applicant.

14G.B. testified as to the Agency’s philosophy, which is to challenge autistic children to develop to their full potential. He testified that the additional funding referred to in the June […], 2007 letter, which he continued to lobby for at numerous meetings with the Society, was to permit the extra time needed to challenge J.W. He testified that he has worked in group homes and knows the group home in which J.W. currently resides. In his opinion, J.W. will receive basic care there, but will not improve to the degree he could have, had he continued to reside with the Applicant. G.B. fears J.W. will lose, if he has not already lost, the verbal advancements he made in the Applicant’s home. G.B. considered his letter to be advocacy on J.W.’s behalf.

15D.G. testified that he and his wife were taken completely by surprise with the Society’s decision to move J.W. While he never received a copy of G.B.’s June […], 2007 letter, he knew that the Agency was advocating on behalf of J.W. and attempting to have additional hours funded, which would provide them with the ability to challenge J.W. to achieve his best. The G.s never intended to have the Society remove J.W. from their home, however, and would have liked to keep him in their home permanently. D.G. described his home, which is licensed to take four foster children in addition to the G.s own two children. It has 10 staff, on duty at various times of the week.

16The G.s are experienced foster parents. L.G. is provincially trained in Intensive Behavioural Intervention, and will shortly complete the Clinical Behavioural Sciences program at Humber College. Their home was the first placement since J.W. left his biological mother’s care. L.G. designed programs for the staff to follow, to work with J.W. and help his ongoing development.

17In response to questioning by counsel for the Society, D.G. agreed that without the Special Rate Agreement funding, over and above Ministry per diems, they would be unable to care for J.W. He also confirmed that the home is currently full, as J.W.’s spot was taken on an emergency, temporary basis by another child. He testified, however, that if the Board decision was to return J.W. to them, they would only need some notice time in order to find another placement for that child.

18J.W. is 16 years old, and will only receive funding as a child through the Society for another two years. When he turns 18, it is very likely he would have to move from the Applicant’s home in any event. While G.B. testified that the Agency currently has plans to create spaces for young adults within its treatment homes, it currently does not have that ability, and future plans are speculative. K.C. testified, on the other hand, that the other organization’s homes include residential placements that would be suitable for J.W. when he becomes an adult, although not within the Residence […].

19Section 37(3) of the Act lists the factors to be considered in determining the best interests of the child:

37(3) 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.

20Not all of the factors are relevant in every case. J.W.’s level of development is such that he must remain in residential care, and receive ongoing treatment for severe autism. His views and wishes cannot be ascertained as he does not have that level of cognitive functioning.

21The most relevant factors to be considered in this case are: 1, 5, 7 and 13.

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

22The child in this case has many physical, mental and emotional needs. There is no argument that the Applicant’s treatment foster home constituted “appropriate care” and “treatment to meet those needs.” There is some question about whether the Applicant’s home will continue to be able to meet those needs, however. First, J.W. is transitioning from a child to a youth, creating increasing physical demands on his caregivers. The June […] letter raised the issue that J.W.’s “safety”, and the safety of others in the home, could not be ensured without increased hours of one-to-one supervision. If there is any question that his safety, and that of the people around him, is in question at the present funding levels, it is a serious consideration. While G.B. testified that he no longer believes what he wrote in the letter, and that J.W.’s continuing care can be provided at current levels of funding, the fact remains that he believed it when he wrote it, and led the Society to believe it. The Society is entitled to act on its beliefs, regarding the best interests of children in its care.

23There is insufficient evidence before us on the question of the level of treatment J.W. is receiving in his current placement, versus what he received at the Applicant’s home, to make any kind of meaningful comparison. The evidence was that he was well looked-after, and received speech therapy as well as schooling, in both locations.

Factor #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.

24Counsel for the Society argued at the hearing that this factor refers to parents of a child, not foster parents such as the Applicant. We agree that the Act refers specifically to “foster parents” when it is meant to apply to them. Nonetheless, we find that “a secure place as a member of a family” is a factor to be considered in any child’s best interest, and in this case J.W.’s place as a member of this foster family for over four years should be considered as analogous to a relationship with a biological family. There is no evidence that J.W. had anything but a positive relationship with his foster parents, and removing him from the Applicant’s home clearly breaks that secure place as a member of the family. These considerations run into factor #6 listed above as well, regarding a child’s relationships and emotional ties to their community. The emotional ties that J.W. has formed to the foster parents and the foster “siblings” are also important.

25It is true that J.W. is 16, and would in all likelihood have had to leave the Applicant’s home at age 18 in any event. Two years, however, is a long time in the life of a child and two further years of membership in this foster family would have been in his best interests.

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

26D.G. and L.G. argue that they never intended to have J.W. leave their home, and that they hoped to keep him as part of their family permanently, if that were possible. D.G. admitted that, with J.W.’s level of development, it would be impossible to care for him in their home without the funding provided through the Special Rate Agreement.

27The Society argues in effect that his place in the Applicant’s family was not secure, as it was dependent on a level of funding from the Society, and ultimately the Ministry, which is not sustainable. K.C. testified that the additional funds being provided to this foster family to care for J.W. was consistently being questioned by the Ministry, with the thought that perhaps this placement was not appropriate to care for a child of such high needs, if it could not be affected without more funds. As noted above, the Society was wary of receiving another “notice” from the Agency due to funding issues, perhaps at a time when no appropriate placement option was available for J.W.

28We find that it is in J.W.’s best interests to be placed in a home where he is as secure as possible. Unfortunately, the June […], 2007 letter to the Society from the Agency created the impression, whether or not grounded in reality, that J.W.’s placement was tenuous with the Applicant.

Factor # 13 Any other relevant circumstance.

29The additional factor that must not be ignored in this case, is the fact that J.W. has already been moved. Any unnecessary disruption in the life of this severely autistic child is to be avoided, and the panel finds that it would not be in his best interests to be moved again, now that he has settled into his life at Residence […].

30This, combined with the questions about the ongoing ability of the Agency and the Applicant to care for J.W., and the need for the Society to find a scarce but appropriate placement for him, lead us to conclude that it is not in J.W.’s best interests to return to the Applicant’s home.

DECISION

31The Board finds that it is not in the best interests of J.W. to be returned to the Applicant’s home at this time, and confirms the Society’s removal.

Mary Wong

Presiding Member

John Gates

Panel Member

Heather Gibbs

Panel Member