CHILD AND FAMILY SERVICES REVIEW BOARD
K.S1. & T.S.
v.
CAS of the County of Simcoe
REASONS FOR DECISION ON MERITS
Indexed as: K.S1. & T.S. v. CAS of the County of Simcoe (CFSA s.144)
INTRODUCTION
Introduction
1This is an application by K.S1. and T.S. (the “Applicants”) under section 144(3) of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”) for a review of the decision of the Children’s Aid Society of the County of Simcoe (the “Society”) refusing their application to adopt [the child] The application was heard on March 23, 24 and 30, 2010.
2The Applicants are seeking an order rescinding the decision of the Society. They believe it is in [the child’s] best interests to be adopted by them because she has been in their care for over two and one-half years and they are the only family that she knows. The Society believes [the child] should be placed with her biological siblings in the adoptive home of [the adoptive family].
3Pursuant to section 144(11) of the Act, the Board must decide what action is in [the child’s] best interests. In coming to its decision, the Board considered the following provisions under the Act:
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 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.
The effects on the child of delay in the disposition of the case.
1 (1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.
(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:
To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.
To recognize that children’s services should be provided in a manner that,
i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment,
iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests.
4For the reasons that follow, the Board has determined that it is in [the child’s] best interests to remain in the care of the Applicants pending a full and fair assessment of their application to adopt [the child]. The Board rescinds the decision of the Society in order to allow that assessment to occur.
BACKGROUND
Background
5[The child] was born on August […], 2007. She was placed in the foster care of the Applicants when she was two days old at the request of her biological mother. [The child] was exposed to drugs in utero and was diagnosed with Hepatitis C in infancy. The Applicants operate a specialized foster home. In 2007, they received an award for being the “foster parent of the year”.
6[The child] has lived with the Applicants for more than two and one-half years. The Applicants have two daughters, L. age 24 and K. age 23. The Applicants have three other foster children: C., M. and E.. C. has autism and some developmental delays.
7While in the care of the Applicants, [the child] has had weekly contact with her paternal grandmother [“grandmother”]. Currently, she has a sleepover at her grandmother’s house every other weekend. She also has contact with her great grandmother.
8The Applicants fostered [the child’s] two biological siblings, T., date of birth May […], 2005 and S1., date of birth July […], 2003. T. and S1. were adopted by [the adoptive family] in August 2007. T. and S1. do not know they have a sister. [The grandmother] provided the [adoptive family] with a picture of [the child], but the [adoptive family] have not shown the picture to S1. and T..
9[The child’s] biological mother may be pregnant with her fourth child.
10[The adoptive mother] is an employee of the Society. [The adoptive father] was an employee of the Society two years ago. Because of their employment relationship with the Society, in January 2007, Family, Youth and Child Services of Muskoka (“Muskoka”) completed the [the adoptive family’s] homestudy prior to their adoption of S1. and T..
11[The child] was made a Crown ward without access on October […], 2008.
12On November […], 2008, an adoption planning meeting took place for [the child]. The Society was aware that [the Applicant foster mother] wished to be considered as an adoption placement for [the child]. The Society made the decision to place [the child] with her siblings in the adoptive home of [the adoptive family]. During this meeting, the Society indicated [the child] would lose face-to-face contact with her grandmother because [the adoptive family] were not comfortable with this contact.
13On November […], 2008, [the Applicant foster mother] phoned E.S., the foster care resources worker, and discussed her plan to adopt [the child]. [The Applicant foster mother] was advised that keeping the siblings together was the preferred plan for the Society. [The Applicant foster mother] expressed her frustration regarding her lack of contact with S1. and T. after their adoption by the [adoptive family].
14In November 2008, [the Applicant foster mother’s] spouse [the Applicant foster father] was not in agreement with adopting [the child] because he felt she should grow up with her siblings.
15In December 2008, the [adoptive family] believed the transition of [the child] into their home would commence in early January 2009.
16In December 2008, the Society became aware that [the grandmother] wanted to present a plan to adopt [the child]. Because a family member had expressed an interest in adopting [the child], the adoption plan of the [adoptive family] was put on hold. In order to adopt [the child], [the grandmother] would have to complete the PRIDE (Parent Resource for Information, Development and Education) training and a homestudy would have to be conducted.
17The Society met with [the grandmother] on March […], 2009. At that time, they discussed [the grandmother’s] plan to adopt [the child] or to search for a family who would be willing to provide liberal and ongoing access to [the grandmother].
18On March […], 2009, J.W., the adoption worker for the Society, advised his supervisor, S.D., that the [adoptive family] were prepared to sign a written openness agreement with [the grandmother] agreeing that she could have two face-to-face visits with [the child] per year, ongoing exchange of photos and two letters per year.
19On March […], 2009, the Society was advised by [the grandmother’s] legal counsel that [the grandmother] had decided to proceed with the adoption process for [the child], including the PRIDE training. The Society provided [the grandmother] with the dates of the PRIDE training.
20In August 2009, [the grandmother] requested York Region Children’s Aid Society (“York”) complete her homestudy because of the Society’s conflict of interest regarding the [adoptive family]. The Society agreed to have York complete the homestudy for [the grandmother]. At that time, [the grandmother] had not completed the PRIDE training. [The grandmother] was advised she could complete the training by video or DVD.
21There is no evidence before the Board that [the grandmother] completed the PRIDE training.
22An adoption case conference took place at the Society on October […], 2009. Prior to the case conference, the Society advised [the grandmother] that it would not proceed with her homestudy because she had not completed the necessary steps to become an adoptive parent. At this time, the Society was advised the Applicants were interested in adopting [the child]. While the case notes of the meeting indicate both Applicants expressed their interest, the evidence before the Board is [the Applicant foster father] confirmed his interest in January, 2010. A decision was made by the Society to place [the child] with the [adoptive family] and mediate an openness agreement with [the grandmother]. The Society asked Muskoka to complete an updated homestudy on the [the adoptive family].
23In November 2009, the [adoptive family] were advised that their adoption of [the child] would proceed.
24On December […], 2009, Muskoka advised the Society that the [adoptive family] agreed to maintain some face-to-face contact with [the grandmother] and to enter into the process of negotiating the details of this contact through the mediation process.
25In January, 2010, an updated homestudy of the [adoptive family] was completed. The [the adoptive family] understood that [the child] would be placed in their home in February, 2010.
26By letter dated January […], 2010, [the grandmother] was invited to attend a transitional visit with [the child] before the end of January to prepare [the child] for a temporary break in their visits in order to give her an opportunity to familiarize herself with her new adoptive home. [The grandmother] was further advised that after [the child] was placed in her new home, the mediation process would commence in order to develop a schedule for face-to-face contact between [the grandmother], [the child], S1. and T..
27On January […], 2010, the Applicants made a formal written request to adopt [the child].
28On February […], 2010, the Society refused the Applicants’ application to adopt [the child].
29There is no evidence before the Board that the Society, at any time, considered the Applicants’ application to adopt [the child].
DECISION
Decision
30Having reviewed the relevant factors under section 136(2) of the Act, the Board finds many of these factors favour [the child] being adopted by the Applicants. The Board finds it is in [the child’s] best interests to remain with the Applicants pending a full and fair assessment of their adoption application, including the completion of a homestudy and an assessment of the PRIDE competencies. The Board rescinds the Society’s decision to refuse the Applicants’ adoption application to allow this assessment to take place.
31The Board recommends an independent children’s aid society (other than Muskoka) conduct the homestudy for the Applicants and assess both the Applicants’ and the [adoptive family’s] adoption applications. The Board recommends further that the independent children’s aid society decide which placement would best meet [the child’s] needs. Any further decision regarding [the child’s] adoption placement following this process can be reviewed by the Board. The reasons for the Board’s decision follow.
ANALYSIS
Analysis
32The Board must decide what action is in the best interests of [the child] having regard to the considerations set out in section 136(2) of the Act. The sole issue before the Board is [the child’s] best interests: the expectations of the [adoptive family] family and the [Applicants’] family are not relevant to this determination.
Physical, Mental and Emotional Needs
Physical, Mental and Emotional Needs
33The Society concedes the Applicants have met [the child’s] physical, mental and emotional needs. There is no issue concerning the Applicants’ ability to continue to meet those needs.
34Similarly, the evidence shows the [adoptive family] are able to meet [the child’s] physical and mental needs. By all accounts, they have done an excellent job raising [the siblings] and have handled their transition into the [adoptive family] home well. The [the adoptive family] have strong parenting skills, are familiar with the resources that are available to assist them in their parenting and have accessed the necessary supports for [the siblings] to ensure a successful adoption placement.
35The only issue of concern to the Board regarding the [adoptive family] is their commitment to maintaining relationships with [the child’s] paternal grandmother and with the [Applicants]. [The child] has formed a strong attachment to both parties and her relationship with them must be preserved.
36The [the adoptive family] did not agree to face-to-face contact between [the grandmother], [the siblings], and there has been no contact with the [Applicant] post adoption. [The adoptive family] have not supported an open adoption with [the siblings] and because of this, the children have been unable to maintain their relationships with the [Applicants] and with their grandmother.
37The issue before the Board is whether [the child’s] emotional needs will be met by the [adoptive family] given their discomfort with the concept of open adoption. While they have agreed to mediate this issue, their approach with [the siblings] demonstrates reluctance on their part. Conversely, the [Applicants] have actively encouraged [the child] to have weekly contact with her grandmother and have supported the development of a very close relationship with her.
38The Board finds that the [Applicants] are better suited to meet [the child’s] physical, mental and emotional needs, in part because they will support [the child’s] relationship with her grandmother and great grandmother. Currently, [the child] sees her grandmother every week. The Board believes this regular contact will continue. Given their support of [the child’s] relationships with her biological family, the Board is satisfied the [Applicants] will also support regular contact between [the child] and her siblings [the siblings].
Attachment
Attachment
39The Society concedes [the child] has formed a strong attachment to the Applicants. [the child] believes [the Applicants] are her parents. She is also attached to the [Applicants’] biological children, K. and L.. The Society believes that because [the child] has formed a strong attachment to the [Applicants], she can easily re-attach to the [adoptive family].
40The theory that a child who has formed a strong attachment can re-attach to others is significant in those cases where a child must be moved. The theory is less valuable where the child has formed a significant attachment and does not have to be moved. In those cases, one must examine the impact of an unnecessary removal.
41The Applicants submitted the report of Dr. W. concerning [the child’s] attachment to the [Applicants] and the impact of a possible removal from them. Dr. W. gave the opinion that “the loss of an attachment figure, when there is a secure pattern of attachment, is disrupting and damaging to a child’s developmental functioning, psychological health and emotional well-being”. Dr. W. concluded that removing [the child] from her home with the Applicants “would cause psychological and emotional damage that may have lasting negative consequences for her development”. Finally, Dr. W. opined that because [the child] has had no contact with her siblings, moving her to be with them “would be tantamount to moving her to live with a group of strangers”.
42The Society argues little weight should be given to Dr. W.’s report for two reasons: one, he was not available to be cross examined on his report and two, the correct protocol was not followed during the filming of the DVD of [the child] with the Applicants and this DVD was relied upon by Dr. W. to give his opinion.
43It does not appear that there is significant disagreement between the parties regarding the central conclusions of Dr. W.. The Society concedes [the child] has a strong bond with the Applicants. It also concedes that placing [the child] with the [adoptive family] will disrupt her continuity of care and it is likely [the child] will suffer the loss of the Applicants greatly. Where the Society and Dr. W. diverge is the Society’s belief that the negative effects of the disruption can be managed successfully.
44In the Board’s view, the attachment that [the child] has to the [Applicants] is crucial and provides a strong base for healthy development. Any exposure to major trauma will interrupt this development and could greatly damage [the child’s] future functioning. If [the child] is removed from the environment where her attachment is secure and where her development and growth is flourishing, she will experience several losses including loss of the [Applicants’] family and the loss of her regular contact with her grandmother and great grandmother. This will intensify the loss of the [Applicants] and the trauma she will experience. There is the possibility that with her already developed secure attachment to the [Applicants] she can overcome the trauma, but there is also the strong possibility that she will not and the consequences will be great. The question before the Board is why should [the child] be exposed to unnecessary trauma that may be harmful to her? The sole reason relied upon by the Society is the belief that [the child] should be raised in the same home as her biological siblings.
Sibling/Family Contact
Sibling/Family Contact
45The Society believes [the child] should be placed with the [adoptive family] so that she can grow up with [the siblings]. The Society argues that L. and K. are now in their early twenties and will likely not be in the Applicants’ home during [the child’s] upbringing.
46There is no question that sibling relationships are important and that it would benefit [the child] to be raised with her siblings. However, family contact is also important. [The child] has a strong relationship with her paternal grandmother and has contact with her great grandmother in the Applicants’ home.
47The Society argues [the child] would continue to have contact with her grandmother in the care of the [adoptive family]. However, as stated above, the [adoptive family] have not supported openness with [the siblings]. The Board is concerned that given the [adoptive family’s] approach to date, they may not actively support [the child’s] relationship with her grandmother. It is important to note that with respect to their agreement to an openness arrangement, the [adoptive family] have agreed to two face-to-face meetings with [the grandmother] per year. This is dramatically different than the weekly contact [the child] now has. While the [adoptive family] have agreed to mediate further the issue of contact, after [the child’s] placement with them, there is no agreement in place at this time.
48While sibling relationships are very important, they can be nurtured in ways other than siblings living together. The Board finds that the Applicants have actively supported [the child’s] relationships with her grandmother and great grandmother and would equally support her relationship with her siblings in the care of the [adoptive family].
49The Society believes [the child] should be raised with her brother and sister in the same home. While the Board understands the basis for this belief, it cannot be completely sustained. The reality is that [the child’s] mother and father may have more children. Indeed, there is some evidence before the Board that [the child’s] mother may be pregnant with her fourth child. If [the child’s] biological mother continues to have more children, at some point they will not be able to be raised together.
50The Board finds that [the child] can develop and maintain a relationship with [the siblings] in the Applicants’ home. She will also continue to solidify her relationship with her grandmother and great grandmother. The importance of [the child’s] relationship with her grandmother was recognized by the Society when it put the [adoptive family’s] adoption plan on hold for more than one year to consider the grandmother’s plan to adopt [the child] or to look for a family that would provide liberal and ongoing access to [the grandmother]. The family that would provide liberal access to [the grandmother] is the [Applicants’] family.
Delay
Delay
51Delay is a concern in this case to all parties and to the Board. The Board recognizes that further delay will result in order to permit a full and fair consideration of the Applicants’ adoption application. Ms. S.D. testified that the homestudy process takes three months to complete.
52The Board believes the Applicants’ adoption application can be assessed well before [the child] turns three in August, 2010. During the next two months, a homestudy can be expedited and completed. The Board heard evidence that for experienced foster families like the Applicants, the PRIDE competencies can be assessed during the homestudy process. The Board finds the additional two-month delay will not have a significant impact on [the child’s] adoption.
53The issue the Board must now address is how the assessment of the Applicants’ adoption application can be fairly and fully completed. In resolving this issue, the Society’s conflict of interest must be considered.
Conflict of Interest
Conflict of Interest
54A conflict of interest is any situation where a private interest may be in conflict with public responsibilities. The conflict of interest can interfere with the duty to act fairly and objectively. The Society had a conflict of interest when one of its employees wanted to adopt [the child], a child of the Society.
55The private interests of the [adoptive family] conflicted with the Society’s obligation to act objectively in the adoption process. This conflict was recognized by the Society, in part, when it asked Muskoka to conduct and update the homestudy for the [adoptive family’s] application to adopt [the child] and when it later agreed to have York conduct the homestudy for[the grandmother] in regards to her application to adopt [the child]. The Society failed to recognize its conflict of interest when it rejected the Applicants’ application to adopt [the child].
56The Society does not recognize that once it has a conflict of interest, that conflict exists for the entire adoption application process, including the decision to accept the [adoptive family’s] application and reject the Applicants’ application. The Society argues it is required by statute to make the adoption placement decision for [the child] and it cannot transfer that decision to another children’s aid society. The Board does not agree.
57When a children’s aid society has a conflict of interest, it cannot act. For example, if child protection concerns were raised about a Society employee, the Society would not investigate such concerns. It would transfer the matter to another children’s aid society for investigation and any other action mandated by the Act. Indeed, the Society should have a conflict of interest protocol to follow in such matters. The adoption application of an employee of a Society child is no different.
58The Society’s conflict resulted in its failure to consider, in any way, the Applicants’ adoption application. The Society failed to appreciate that after putting the [adoptive family’s] adoption application on hold for more than one year, [the child’s] bond with the Applicants continued to grow as did their bond with her. By January 2010, both [of the Applicants] made a decision to adopt [the child]. That request was put in writing to the Society. The Society failed to consider the Applicants’ application, failed to consider the change in circumstances and failed to consider all of the relevant factors when determining [the child’s] best interests.
59The Society has a conflict of interest in the adoption placement of [the child]. In light of that conflict, another children’s aid society should make the decision as to which adoption placement is in [the child’s] best interests.
CONCLUSION
Conclusion
60The Board concludes that it is in [the child’s] best interests to remain in the Applicants’ home to permit a full and fair assessment of their application to adopt [the child].
61The Board makes the following recommendations concerning the assessment of the Applicants’ adoption application:
- A homestudy for the Applicants should be completed by a children’s aid society independent of the Society and Muskoka (the “Independent Children’s Aid Society”). The PRIDE competencies for the Applicants can be assessed during the homestudy process.
- The Independent Children’s Aid Society should assess both the Applicants’ and the [adoptive family’s] adoption applications and make a decision as to which placement would best meet [the child’s] needs having regard to all of the relevant considerations described in section 136(2) of the Act.
- The assessment process and the decision of the Independent Children’s Aid Society should be completed by June […], 2010.
62The decision of the Independent Children’s Aid Society is subject to further review by the Board.
Jennifer Scott
Presiding Member
Ruth Ann Schedlich
Panel Member
Alina Lazor
Panel Member
Dated at Toronto, Ontario on this 20^th^ day of April, 2010
Child and Family
Services
Review Board
Custody Review Board
Commission de révision
des services à
l’enfance et à la famille
Commission de révision des
placements sous garde
DECISION ON A REVIEW OF A REFUSAL OF AN ADOPTION APPICATION
BETWEEN:
K.S1. and T.S.
Applicants
AND
Children’s Aid Society of the County of Simcoe
Respondent
DECISION
Decision on a Review of a Refusal of an Adoption Application
Following the hearing on March 23, 24 and 30, 2010, the Child and Family Services Review Board (the “Board”) decides as follows:
It is in the best interests of [the child] to remain in the Applicants’ home pending a full and fair assessment of the Applicants’ application to adopt [the child].
The decision of the Children’s Aid Society of the County of Simcoe dated February […], 2010 refusing the Applicants’ application to adopt [the child] is rescinded under subsection 144(11) of the Child and Family Services Act (the “Act”) to allow a full and fair assessment of the Applicants’ adoption application.
The reasons for this decision will be sent to the parties within 30 days after the last hearing date.
Dated at Toronto, Ontario on the 9th day of April, 2010.
Jennifer Scott
Presiding Member
Ruth Ann Schedlich
Panel Member
Alina Lazor
Panel Member
Panel Member