Child and Family Services Review Board
A.A.
v.
Family and Children’s Services of the Waterloo Region
REASONS FOR DECISION ON MERITS
Indexed as: A.A. v. F&CS of the Waterloo Region (CFSA s.61)
1This is an application by a foster parent, A.A1. (the “Applicant”), to the Child and Family Services Review Board (the “Board”) for a review of the decision of the Family and Children’s Services of the Waterloo Region (the “Society”) to remove from her care a child for whom A.A1. has provided foster care continuously for more than two years. This review is pursuant to section 61 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”).
2The Board conducted a review of the Society’s decision at a hearing held on July 24, 2008 and August 1, 2008. At the hearing, the Board heard evidence from the Society’s witnesses K.E., Foster Care Resource Worker; S.R., Child Services Worker; H.K., Family Services Worker; and J.C., Supervisor of Foster Care Services. The Applicant, A.A1., gave evidence and called her husband, B.A., and J.S., her mother, to give evidence before the Board. The foster child, whose proper name is J.A.E. (the “Child”), was represented at the hearing by counsel, Henry Shields, appointed by the Office of the Children’s Lawyer. At the hearing, the child was referred to as A.A2., the name she has chosen during foster care. The Board received and marked as Exhibits R1, A1, A2 respectively the Foster Care Service Agreement for Provisional Homes between the Applicant and the Society; correspondence dated July […], 2008 from P.B.C. of the Agency; and a copy of the invoice for the rehabilitation program attended by B.A. at C.H.C., [ ].
BACKGROUND
3On the evidence received the Board makes the factual findings enumerated below.
The child, A.A2., born April […], 1996, has been a foster child in the Applicant’s home for just over six years.
By letter dated June […], 2008, the Society advised the Applicant and her husband that the Society would not return A.A2. to the Applicant’s care.
From and after May […], 2008 until the […] of June, 2008, the date of the Society’s letter, A.A2. had been temporarily placed in care out of the Applicant’s home with her aunt, while the Society completed an investigation into the A.’s family situation, and considered its decision respecting A.A2.’s future foster placement.
The A. Family are a kinship foster placement as A.A2. is B.A.’s biological niece.
The A.’s family have entered into and renewed from time to time the “Foster Care Service Agreement for Provisional Homes”.
On November […], 2007, A.A1. reported to the Society that B.A. had been admitted to the hospital as a result of an attempted suicide and a substance abuse problem involving the use of cocaine.
As a result of the November […], 2007 disclosures, the Society opened a file respecting protection concerns for the children in this family. The A.’s family have another child at home, M., who is their biological daughter.
Also of concern as of November […], 2007 with respect to the A. family as significant stressors are: A.A1.’s recent miscarriages; the loss of B.A.’s employment; B.A.’s further admission that he had also used marijuana and alcohol in combination with prescription drugs including Respiritol; and had suffered a serious personal loss and deep grief as the result of the death of a close friend.
A.A1. admitted to the Society that she had been aware of B.A.’s drug use for some time prior to November […], 2007 without making any disclosure to the Society.
On January […], 2008, the Applicant reported to the Society that B.A. had used cocaine again.
On or about May […], 2008 the A.’s family further disclosed that B.A. had used marijuana and alcohol again and that A.A1. had also used marijuana on one occasion at a social function but not while she is in a care giving role. A.A1. in a single drug test requested by the Society tested negatively for the presence of marijuana.
The Society’s home study of the A.’s family as kinship foster parents in October 2002 had identified earlier non-prescription drugs by B.A. but that B.A. was then reported clean.
B.A. completed a 30-day residential treatment program for drug abuse at C.H.C. in [ ] on or about the […] day of June, 2008.
SOCIETY’S RESPONSES
4As a result of the disclosures and incidents on November […], 2007, the Society opened a protection file with respect to the A. foster home. The Society reached an agreement with the A.’s family that B.A. was not to be left in a care giving role for the children, A.A2. and M.. Drug screens were to be implemented for B.A.. B.A. was to begin addiction counselling, attend Narcotics Anonymous and seek psychiatric treatment. Counselling for B.A. and A.A1. as a couple was to be initiated. The Society noted at that time that B.A. was resistant to a residential treatment program for substance abuse.
5Following the January […], 2008 disclosures, the Society became concerned that a further protection response in the A. home was warranted. The Society recognized that A.A2.’s kinship connection in the A. family home, the length of her stay, the depth of her attachment there and her dependence on the strong nurturing role of A.A1. as the prime care giver in the home mitigated against a decision to remove A.A2. from the A. home.
6On May […], 2008, the Society received an additional report initiated by an anonymous caller that alleged B.A. was using marijuana a lot and that A.A1. had also used marijuana. The Society’s confidence in A.A1. as a stable care giver was consequently undermined. A.A1. confirmed B.A.’s relapse and admitted to a one time social use herself of marijuana. As a result, A.A2. was temporarily placed in the home of her aunt where one of her siblings resides on an “extended visit” while the May […], 2008 situation was investigated and considered by the Society. By letter dated June […], 2008, the Society informed the A.’s family that A.A2. would not be returned to their home.
DECISION OF THE BOARD
7The Society bears the legal burden on a balance of probability of showing that the proposed removal of the foster child from the foster home is in the best interests of the foster child having regard to the criteria set out in section 37(3). That section sets out a number of circumstances that are to be considered in assessing “best interests of a child.”
8The Child appears not to be aware of particular events concerning drug use by B.A.. With respect to B.A.’s hospital admission in November, A.A2. is reported as knowing that B.A. is sad. There can be no doubt that A.A2.’s sense of personal identity, emotional attachment and security are deeply enmeshed and flow from her place as a member of the A.’s family. Her active, meaningful sibling ties are with M., her personal sense of family kinship experience is centred in B.A. and A.A1. and the extended A. family, especially her strong loving connection with J.S. as grandmother. She is inextricably entangled in the emotional nexus of the A.family as “family”.
9B.A.’s evidence is that he has a special relationship with A.A2. that is open and unfettered in a way that cannot be achieved with a biological child. There is no evidence that challenges A.A1.’s place as the positive maternal centre of A.A2.’s being. The Child’s views and wishes as advocated by her counsel are that she wishes to return to the A.’s family home. The overwhelming continuity of her care in her short life has been with the A.’s family. As A.A2. has already experienced the trauma of the breakdown of her care in her family of origin, a second such break is a concern to her emotional wellbeing and wholeness.
10If the focus of this Board’s decision as to the best interests of the foster child is referenced solely to the circumstances enumerated in the provisions of section 37(3), items one through twelve, when viewed subjectively from the perspective of the Child, the Society’s decision to remove the Child cannot be sustained. The Board however, on the evidence in this case, finds that there are other relevant circumstances pursuant to section 37(3)13 of the Act that apply in determining the best interests of a child who is in foster care. The Board accepts the Society’s point of view that there are unique and special expectations of parents who accept the role of providing foster care for children, particularly children whose life experiences before foster care are often so sadly unfortunate. Foster parenting is a position in which the public invests its trust. The Board recognizes that the Society’s relationship to its Crown Wards is that of a co-parent. For these reasons there is, in the Board’s view, no conflict between the Society’s decision to remove A.A2. from the A. foster home while leaving M. in the home, subject to a protection protocol.
11There is a public interest aspect to the best interests test. The Board finds that the Society has, on the balance of probability, established that there are protection concerns respecting the A. family. An application made by a family to foster children in these circumstances cannot be accepted, despite the kinship connection. It is not consistent with the public interest to leave a child in a home that no longer qualifies as a foster home. It is in the best interests of this foster child that she not be returned to a foster home where there is a justifiable protection concern affecting the welfare of the foster child evidenced by an open protection file.
12Pursuant to the Act, the Board is directed in these circumstances to confirm the proposed removal of the Child. As of the date of the hearing, the Society had removed the Child, as stated in the Society’s June […], 2008 letter to the Applicant. The Society admitted that it did not have the opinion of a local Director that there would be a risk that the Child was likely to suffer harm during the time necessary for a review by the Board. This is required by section 61(9) of the Act. No local Director was asked to give this opinion despite the fact that this matter was considered by the Society’s senior management to be a unique and difficult case. The Board cannot but comment on the Society’s deliberate disregard for this statutory process.
13When a child is removed in contravention of the Act, there is no “proposed” decision to review. The Board must then review the actual removal as opposed to the proposed removal. In this case, the Board concurs with the Society’s decision and confirms the Child’s removal from the foster home.
Mary Wong
Presiding member
Richard Linley
Panel member
Heather Hunter
Panel member
Dated at Toronto, Ontario this 11th day of September, 2008.