CHILD AND FAMILY SERVICES REVIEW BOARD
D.T. & M.N.
v.
Native Child and Family Services of Toronto
REASONS FOR DECISION ON MERITS
Date: September 13, 2010
Citation: 2010 CFSRB 41
Indexed as: D.T. & M.N. v. Native Child and Family Services of Toronto (CFSA s.68)
INTRODUCTION
1D.T. and M.N. (the “Applicants”) filed a complaint, pursuant to section 68.1 (4) of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “CFSA”), with the Child and Family Services Review Board (the “Board”) on March 29, 2010. The Applicants complain pursuant to subparagraphs 4 and 5 of subsection 68.1 (4) of the CFSA that Native Child and Family Services of Toronto (the “Society” or “NCFS”) failed to provide them with an opportunity to be heard regarding some concerns relating to their adoption of the child “P” and failed to provide them with meaningful explanations for decisions made affecting their interests relating to these concerns.
2The Board must decide, based on the evidence, whether the Society provided the Applicants with reasons for decisions that affected their interests and whether the Society heard the Applicants’ concerns.
3The position of the Applicants is that the Society did not give them an opportunity to be heard when they requested more detailed information about their adoptive child P and when they expressed concerns about the delays in the Society placing P with them. The Applicants allege that the Society did not provide them with reasons for the decisions the Society made relating to these matters. The Society’s position is that it listened to the Applicants’ concerns as required, including taking appropriate follow-up action, and that the Society provided reasons for its decisions to the Applicants.
4The relevant legislative framework is as follows:
Section 68.1 (4) 4 of the CFSA gives the Board authority to review:
Allegations that the Society has failed to comply with clause 2 (2) (a)
Section 2 (2) (a) states:
(2) Service Providers shall ensure,
(a) that children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving.
Section 68.1 (4) 5 of the CFSA gives the Board the authority to review:
Allegations that the Society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.
5The Board finds that the Society failed to provide the Applicants with the opportunity to be heard and with a meaningful explanation in respect of the requests by the Applicants for more comprehensive information about their adoptive daughter P. The Board further finds that the Society failed to provide the Applicants with an explanation in respect of some of the delay in placing P with the Applicants. The Board’s reasons for these decisions and disposition follow.
BACKGROUND
6The Applicants reside in [another Province] and had previously adopted a child “A” through Native Child and Family Services of Toronto with connections to their First Nations ancestry. In April, 2009 the Applicants received a message from A’s former foster caregiver advising that NCFS was inquiring as to whether the Applicants were prepared for another adoption. On April […], 2009 the Applicant, D.T., sent an e-mail to B.M. of NCFS responding in the affirmative with some guidelines. Having had prior adoption experience with the Society, the Applicants engaged in the process again with certain expectations with respect to information sharing and timelines. B.M. was, and remains, an adoption and permanency caseworker with the Society. On November […], 2009 profiles of two children were sent to D.T. for her consideration and, after some contention and upset, the match of four month old P with the Applicants was confirmed on about December […], 2009 and permanency planning for P with the Applicants began. On April […], 2010, the child P was placed in the Applicant’s care after a process that had taken just over four months to complete. This four month time period, and some of what occurred during this time, is the subject of this proceeding. During this time period, the Applicants asked for more information about P and asked the Society about delays.
ANALYSIS
7In terms of whether or not the Society provided the Applicants with an opportunity to be heard and with an explanation concerning their requests for additional information about P, the Board determines that the Society did not comply with the legislation. On November […], 2009 the Society provided the Applicants with a two page summary (Child Profile) for P containing some basic information. By e-mail on November […], 2009 the Applicants made a number of requests of the Society including for birth parent information, sibling information, First Nation openness requirements, and medical risk factors and considerations. By e-mail to the Applicants on November […], 2009 the adoption caseworker indicated the following:
“….the next step would be to have management approve the placement and then provide you with more information regarding medical, cultural, child welfare and family history.”
8The Society selection committee approved the adoption placement of P with the Applicants on January […], 2010. On February […] and […], 2010 the Applicants inquired about connecting with the foster family for P by telephone or e-mail and asked for any additional information such as updated medical documents, monthly progress reports, photos, etc. The adoption worker replied on February […], 2010 to the effect that it was premature to contact the foster parent and that the Children Service Worker was still working on the additional information request. On February […], 2010 the Applicants sent an e-mail to the Society requesting, among other things, a written update as to what was happening and specifically the following:
“Any information from the foster home would be great, like clothing size, diaper brand and size, her current weight, is she sitting up yet, etc. etc.”
9The Society responded to some of the other questions raised by the Applicants but not the request about information from the foster home prompting the Applicants to follow-up on February […], 2010 as follows:
“You didn’t mention if the foster family had provided the information we were looking for? We are wanting to purchase as much as possible in the way of supplies before she arrives.”
10On February […], 2010 the adoption caseworker responded to the Applicants as follows:
“Once the Ministry provides the approval for the adoption planning AND your home study has been updated then Native Child and Family Services of Toronto management can approve to move forward with discussing the adoption transition planning and timelines”.
11The Applicants replied on February […], 2010 requesting the release of information about P in the care and control of the Society and comparing this situation with their adoption of their daughter A when they were given open contact with the foster family within days of the match.
12On February […], 2010 H.A. from [a private agency from the Applicant’s province] agency engaged for the Applicants, confirmed sending the Society (B.M.) templates for a social and medical history of P as well as a child routines template for the foster mother to fill out. On February […], 2010 [ ], Society Legal Counsel, sent an e-mail to the Applicants which indicated that “B.M. will send you an update on P’s progress/issues etc.” On March […], 2010 H.A. from [the Private Agency] updated the Applicants, relevant to their information concerns, as follows:
“The foster parent knows about the adoption and is prepared for the transition”.
and
“The social and medical history are being worked on and B.M. is asking for them to be completed right away”.
13The Applicants received the additional information they had been requesting on March […], 2010 and only at the end of the internal complaint review process. The Applicants came to Toronto on April […], 2010 to get their daughter and the transition took place between April […] and […], 2010. The Applicants stated this left them with insufficient time between March […] and April […] to consult with a physician in their community about P’s history and to explore health concerns related to the biological mother’s alcohol and cocaine use and her status as HIV positive. As well the Applicants submit that this short time frame did not allow the Applicants to otherwise plan in a more comprehensive way for P. The Society responds by suggesting that the Applicants could simply have postponed the placement of P with them to allow these preparations to take place first. The Applicants complain that there was no reasonable explanation given for the delay in processing their requests for further information.
14It was the evidence of the adoption caseworker, B.M., that in fact she received the additional information being requested by the Applicants on February […], 2010 from the Children’s Service Worker. Based upon the communication between the parties of November […], 2009, the Applicants would reasonably expect to receive this information upon availability (and after management placement approval). The Applicants were led to believe that the Society was still waiting for the additional information when in fact the information was available as of February […], 2010 and deliberately withheld until March […], 2010, some eight weeks later. B.M. testified that she was directed by management not to provide the information package to the Applicants until after approvals had been received from both the Ontario and [the other Province’s] Ministries.
15This management decision to withhold information was not communicated to the Applicants thereby depriving them of the opportunity to challenge this decision at the relevant time through the appropriate channels. This also caused the Applicants considerable frustration waiting for basic additional information which, inexplicably to them, was not being provided. It is of note that [the other Province’s] Ministry approval was given on February […], 2010 and Ontario Ministry approval was given on March […], 2010 – the latter date coinciding with the information release to the Applicants.
16Section 2 of the Act provides that parents have an opportunity to be heard “where appropriate”. The Board finds, on the facts of this case, that the Applicants were not heard when seeking additional information about P from the Society. The Applicants had a reasonable expectation that they would receive the requested details after January […], 2010 upon receipt by the Society. Although communication between the Applicants and the Society was frequent, and generally prompt, the apparent lack of integrity between February […] and March […], 2010 with respect to the withholding of available information dictates a finding by this Board that the Applicants were not heard by the Society in any meaningful way. The Applicants only received an explanation for all of the above during this hearing. B.M. indicated in her evidence that the Society had confidentiality concerns and disappointment concerns should more comprehensive information be released and the placement not approved.
17Although finding against the Society with respect to this complaint, no Order of this Board now can remedy the Society default and to order the Society to provide an explanation, when one has finally been given, would be moot.
18In terms of whether or not the Society provided the Applicants with an opportunity to be heard and with an explanation concerning the delays by the Society in placing “P” with them, the Board finds in favour of the Applicants in part.
19The Board carefully reviewed the application, the record of email exchange between the parties, and oral evidence presented at the hearing in considering timeliness and the concerns of the Applicants. The evidence is consistent that P became available for adoption on November […], 2009, the match with the Applicants was confirmed around December […], 2009, the Society selection committee met on January […], 2010 to approve placement with the Applicants, the private adoption agency [ ] was in place by mid-February, and the Applicants were in Toronto on April […], 2010 to transition P to their care and control. The entire process took about four months.
20In their application to this Board the Applicants express concerns with respect to this Society, an indigenous agency, blindly applying “non-indigenous procedures” and “problematic bureaucracy” with indigenous hands. The Applicants expected a placement of P with them within two to four weeks after matching which the Board understands may be typical for an adoption within province of an infant.
21The Society, in this case, required approval from the Ontario and [other Province’s] Ministries before proceeding with a placement of P outside this province. This took approximately four months and included requests for additional information from the Ontario Ministry. It is not for the Board to determine if there was “delay” or if the time frame was reasonable for an out of province adoption. What the Board must consider is whether the Applicants were heard when they expressed their concerns about the length of the process and whether they were given reasons for the timing.
22The Board identifies one time period of potential concern on the evidence.
23On February […], 2010 the adoption caseworker B.M. updated the Applicants by e-mail including the following:
“I am still waiting for the approval from the Ontario Ministry regarding the adoption planning for P. This request typically takes several weeks before I have confirmation”.
24The engagement of [the] (private adoption agency) and the requirement of a home study update were also referenced in this communication.
25The period of concern occurred between February […], 2010 and March […], 2010. On February […], 2010 the Society sent a letter to the Ontario and [the other Province’s] Ministries containing background information and seeking approval of this inter-provincial adoption. Approval from the [other Province’s] Ministry was given on February […], 2010. The adoption caseworker gave evidence that the Ontario Ministry replied on February […], 2010 requesting more information and this additional information was sent to the Ontario Ministry on March […], 2010 – over four weeks later. Approval of this adoption by the Ontario Ministry was given on March […], 2010.
26Although B.M. gave some evidence as to the additional information requested by the Ontario Ministry on February […], 2010 it is not clear as to why it took over four weeks for the Society to assemble and respond. The Applicants are reasonably entitled to an explanation for this delay. The Applicants had raised concerns about delay and were seemingly left in limbo without explanation.
27The Applicants also raised the issue of their not being heard or given reasons for decisions affecting their interests in the context of information about, and delay, relating to the lack of a Statement of Live Birth for P. There is a reference to this in paragraph 12 of the application and in paragraph 46 of the Application as follows:
“We were told in December that the live statement of birth was not in, that someone was working on it, and that Ontario would not be able to release the baby until it arrived. We submit that this is ridiculous, both in timing and procedure.”
28On January […], 2010, the Manager of Children’s Services, D.V.O., responded to an inquiry by the Applicants made the preceding day as follows:
“We are still awaiting the Statement of Live Birth, however, our admin. person responsible has indicated that she was in touch with our contact in Thunder Bay last week who stated that in (it) was being processed and should be sent to us “shortly”.
29H.A. from [the Private Agency] updated the Applicants by e-mail on February […], 2010 as follows:
“At this point, we are waiting for approval from the Ontario Ministry and for Native Child to obtain the Statement of Live Birth.”
30The Applicants, in an e-mail to Society legal counsel of February […], 2010 indicated the following:
“More than one staff person, since at least December, has put this lack of “statement of live birth” as the primary reason for delayed transition placement of the baby”.
31In cross-examination on August […], 2010 B.M. mentioned that the Statement of Live Birth was still not on hand for P. This was clearly a revelation for the Applicants who believed this document availability was a condition precedent to P being placed with them.
32It was clarified at the hearing that a child can be placed without the Statement of Live Birth being available. The Board is concerned that the Applicants appear to have been provided with incorrect information concerning the significance of a Statement of Live Birth for this adoption placement and that this misinformation was never corrected. Taken in context, the misinformation about the significance of the statement of live birth at the time leading up to the placement goes to the Society’s failure to hear the Applicants’ concerns about delay and to provide them with meaningful reasons for the timing of the placement. The Applicants repeatedly asked why placement was not occurring and they were given information that was incorrect and thus not responsive to their concerns. The lack of the Statement of Live Birth was not, in fact, a reason for the delay in placement yet it was held out by the Society as such.
33By way of comment only, the Board notes that at the hearing the Applicants learned that a Statement of Live Birth was still not available as required to finalize this adoption. The Applicants should have been advised at the time of placement of this outstanding requirement (and should have been updated since). Further, the Applicants should not have first learned that this was a continuing problem at this hearing.
DECISION
34The Board finds in favour of the Applicants with respect to the complaint relating to their requests for additional information about P. The Board finds that the Society did not hear the concerns of the Applicants in any meaningful way and failed to provide the Applicants with an honest explanation as to the status of information available and the Society’s release of information requirements between February […] and March […], 2010. No remedial order of this Board can address these failings and, for the reasons given, no such order is made.
35The Board finds in favour of the Applicants in part with respect to the complaint relating to the Applicants’ concerns about delay for the period February […], 2010 to March […], 2010. Specifically, the Board upholds the Applicants’ complaint under subparagraphs 4 and 5 of subsection 68.1(4) of the Act that they were not heard or provided with an explanation as to the delay by the Society in responding to the Ontario Ministry.
36The Board orders the Society to provide the Applicants with a detailed written explanation within fifteen days of the date of this decision for the following:
- The delay by the Society until March […], 2010 in responding to the request by the Ontario Ministry for more information made February […], 2010.
37The Board also finds that the Society failed to hear the Applicants’ concerns about delay and to provide them with a meaningful explanation for the timing of the placement with respect to the unavailability of a Statement of Live Birth. The Board orders the Society to provide the Applicants with a detailed written explanation of the following within fifteen days of the date of this decision:
- The significance of the Statement of Live Birth in terms of adoption placement and adoption and an explanation as to why the Applicants were not provided with accurate information about the significance of the Statement of Live Birth in terms of adoption placement.
38The Board will remain seized of this matter for implementation purposes. Should the Applicants wish the Board to review the explanation provided by the Society for compliance, the Applicants must contact the Board, in writing, within twenty days of this decision.
Sheena Scott
Presiding Member
Frances Sanderson
Board Member
Gregory Price
Board Member
Dated at Toronto, Ontario on this 13th day of September, 2010.