M.T. v. Catholic Children’s Aid Society of Hamilton, 2009 CFSRB 27

CHILD AND FAMILY SERVICES REVIEW BOARD

M.T.

v.

Catholic Children’s Aid Society of Hamilton

REASONS FOR DECISION ON MERITS

Date: June 12, 2009

Citation: 2009 CFSRB 27

Indexed as: M.T. v. Catholic CAS of Hamilton (CFSA s.144)

1The Applicant, M.T., applied to the Child and Family Services Review Board (the “Board”) for a review of a decision made by the Catholic Children’s Aid Society of Hamilton (the “Society” or “CAS”) to refuse her application to adopt her grandchild, K.D., born the […] of January, 2005. A letter from the Society dated the […] of April, 2009 was sent to counsel for the Applicant advising the Applicant of this decision as required by subsection (2) of section 144 of the Child and Family Services Act R.S.O. 1990, c. C11 (the “Act”). The relevant provisions of section 144 with respect to a review by the Board are as follows:

s. 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.

144(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 K.D. to be placed for adoption with another adoptive family which the Society believes is best suited to meet the needs of the child, and is available to adopt immediately. Accordingly, the Society has asked the Board to confirm the decision to refuse the application to adopt K.D.. It is the position of the Applicant that it is in the best interests of K.D. that her application to adopt be considered by the Society, as she is his paternal grandmother and shares the child’s [X]¹ ethnicity. The Applicant asks that the decision of the Society to refuse her application be rescinded.

BACKGROUND

3The child came into care of the Society in March 2007 at the age of two. He was initially placed in a non-Catholic foster home, then a Catholic foster home, and went to a third foster home from August 2007 to November 2008. His foster parents have always been Caucasian. During this time, the Society worked with K.D.’s birth family with the hope that he could be placed with them. Numerous plans were put forward for his care, but none were successful primarily due to a history of drug and alcohol abuse by his birth parents. The day after K.D. was determined to be a Crown Ward with no access in November 2008, he was placed in a “kin” adoptive home with H.T. and D.T.. The couple had been put forward by K.D.’s birth father as his preferred adoptive family and after assessment, the Society agreed. While not blood relatives, this adoptive couple are the godparents of the birth father, and [of X cultural background]. Unfortunately, the adoption broke down in March 2009. K.D. was placed in a foster home where he continues to await his “forever family”.

4The Applicant contacted the Society shortly after the adoption breakdown in March 2009 to express her desire to adopt K.D.. The Society notified the Applicant of the Society’s decision that it would not process her application to adopt, and that K.D. would be placed with an approved adoptive family by letter dated April […], 2009, addressed to her counsel. The Applicant applied to this Board on April 22, 2009 for a review of the Society’s decision.

ANALYSIS

5The Board must make a decision in this matter having regard to the best interests of the child as provided for in subsection (11) of section 144 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.

6In considering the best interests of a child, the Board must take into consideration the factors detailed in section 136(2). The relevant considerations in this case are:

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 childs’ cultural background.

4. The child’s relationships by blood or through an adoption order.

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

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

7The main issue in dispute in this case is whether cultural and family ties are more important for K.D.’s well-being than the need to be placed with an adoptive family immediately.

8The Society takes the position that the “window of attachment” for this child is quickly closing, and a permanent adoption must be made very quickly. It emphasizes that the child’s culture and birth family are clearly important factors, and the Society has made considerable and sustained efforts to honour those factors. Nonetheless, circumstances are such that in this particular and unique case, timing must trump the other factors. The Society has matched K.D. with an assessed adoptive family that is available immediately, and has the skills and strengths they believe necessary to successfully adopt this child. They are [not from the child’s cultural background].

9The Applicant takes the position that the “window” may be closing, but is not yet closed. She believes that it is K.D.’s best interest to be raised by his family within his [X] culture. She wants the Society to delay placing K.D. until her application to adopt him can be assessed.

10The Society adduced evidence from D.S., Adoption Supervisor, who spoke about the adoption process generally, as well as to this specific case. Ms. D.S. first became involved with K.D. in November 2008, when he was placed in his Kin adoptive home. She testified that K.D. is bright