B.H. v. Children’s Aid Society of Hamilton, 2012 CFSRB 29

CHILD AND FAMILY SERVICES REVIEW BOARD

B.H.

v.

CHILDREN’S AID SOCIETY OF HAMILTON

REASONS FOR DECISION

Date: August 10, 2012

Citation: 2012 CFSRB 29

Indexed as: B.H. v. Children’s Aid Society of Hamilton

(CFSA s.144)

INTRODUCTION

1[A] is almost three years of age and her sister [R] [together, the “sisters” or “children”] is four years of age. The Applicant B.H. is their foster mother. The Applicant wishes to adopt both girls. [R] has been in the Applicant’s care since March [ ], 2011 and [A] has been in her care since June [ ], 2011. The children were made Crown Wards of the Children’s Aid Society of Hamilton (“Society”) without access in January 2012. The Applicant presented herself to the Society as a prospective adoptive parent for the children on January [ ], 2012.

2The Society informed the Applicant on July [ ], 2012 that the children had been matched with another prospective adoptive family. The Applicant applied to the Child and Family Services Review Board (“Board”) on July 10, 2012 for a review of the Society’s decision.

3The application is made under section 144 of the Child and Family Services Act (“Act”). The Board has to decide what action is in the best interests of [the children] and either confirm or rescind the Society’s decision. The main issues before the Board are whether the Applicant can meet the children’s needs and what action is in the best interests of the children.

4The Board has determined that, in all of the circumstances, it is in the children’s best interests to rescind the decision of the Society. These are the reasons for that decision.

BACKGROUND

5[R] was born on [ ], 2008 and [A] was born on [ ], 2009. [A] was placed at birth in a foster home in Toronto and was moved to another foster home along with her sister in December 2010. [R] was moved to the Applicant’s home on March [ ], 2011 as a result of the difficulties that the foster family at the time were having in managing her behavior. [A] was moved shortly thereafter on June [ ], 2011. Both girls have resided with the Applicant since that time.

6Each of the children faced a number of challenges at the time of their placement with the Applicant. [A] had delays in her speech; both her expressive speech and her comprehension, and her motor skills were delayed. [R] had major behavioral problems and was highly anxious at times of transition. These challenges made it difficult for the former foster mother to adequately parent the children and as a result they were placed with the Applicant.

7The Applicant is single and has been a foster mother for the past four years with the [ ] foster agency. Her home is designated as a therapeutic foster home that can meet the needs of children with special needs. The Applicant has two other children in her care. [The older foster sister], who is developmentally delayed and diagnosed with Fetal Alcohol Syndrome is 17 years old and has been in the care of the Applicant for four years. [She] functions at the level of an 11 or 12 year old. She is a Crown Ward of the Society and is not available for adoption but the Applicant intends to provide long term care for her. The other child, [“foster sister”], is 12 years old and functions at the level of a six or seven year old. She has resided with the Applicant for approximately the last year. [She] is also not available for adoption and is likely to be unable to live independently and likely to remain with the Applicant.

8The Society accepted the Applicant’s written expression of interest in adopting the children once she was informed that they were available for adoption and as set out in her letter to the Society dated January [ ], 2012. The Society acknowledged the Applicant’s request in a letter dated January [ ], 2012 and requested that the Applicant provide it with a copy of a Structured Analysis Family Evaluation (SAFE) homestudy completed by [other society] and indicated to her that an updated homestudy might be required. The Applicant completed a SAFE homestudy through the [other society] in March of 2011 and was approved by that society. An update to the SAFE homestudy was completed by the same agency at the request of the Society. The Applicant had completed the required training as well and the Society considered the Applicant to be approved as a prospective adoptive home and considered her along with other families as a permanent home for the children.

9The Society informed the Applicant in writing on July [ ], 2012 that her home had not been selected as the adoptive home for the children. The Society submitted into evidence a case note dated July [ ], 2012 made by the Adoption Worker assigned to the Applicant. The case note indicated that in looking for the best match for the children the Society looked for a two-parent family and could not consider the income the Applicant received for her fostering services as income to be included in the homestudy financial information component. The Adoption Supervisor for the Society testified that the best home for the children was a two-parent home where there were no other children and stable financial income from employment. She compared this with the Applicant’s home where, in her view, there is a flux, with children coming and going as a result of the Applicant’s fostering. The Adoption Worker also testified that the per diem funds that the Applicant received for fostering the children in her home were not considered by the Society to be income. The Society indicated that this position is an unwritten policy of this Society.

10The Applicant then commenced this application to the Board under s. 144 of the Act.

ANALYSIS

11The Board has the power to review an adoption application refusal under section 144 (3) of the Act. The right to a review applies if a Society decides to refuse an application to adopt a particular child or children by a person [s. 144(1)]. The Board must then, in accordance with its determination of which action is in the best interests of the child or children, as in this case, confirm or rescind the decision under review [s. 144 (11)].

12In determining what action was in the children’s best interests, under section 144 of the Act, the Board takes into account the over-arching considerations set out in section 1 of the Act, as follows:

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:

2. 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.

3. 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,

ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children

iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests,

13The Board is required to and did consider the relevant factors set out in section 136 (2) of the Act, namely:

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:

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 by blood or through an adoption order.

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

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

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

10. Any other relevant circumstance.

14The main issue for the Board in this case is the Applicant’s ongoing ability to meet the sisters’ physical, mental and emotional needs. The Board will deal with the Society’s concerns within the context of the best interests test mandated by section 136 of the Act.

The Children’s Physical, Mental and Emotional Needs, and the Applicants’ Ability to Meet Those Needs

15The sisters have experienced instability in their young lives. The Society testified that the children’s biological mother had used drugs during her pregnancies and that [R] had been exposed to ocycontin and [A] to percocet. The children were removed from their home and [A] was placed in two other homes before being placed with the Applicant and [R] had been in another foster home before being placed with the Applicant. The Board heard from both the Society and the Applicant regarding how the children presented at the time of their placement with the Applicant.

16[R] had major behavioral problems, which were unable to be managed by the former foster family. In addition, she was oppositional, highly anxious and prone to tantrums. [A] was almost mute when she was placed with the Applicant. Her speech and motor skills were delayed to the extent that she required both speech therapy to address her speech problems and occupational therapy to address her motor deficits.

17Both the Society and the Applicant consistently described the positive gains made by the children since they have been in the care of the Applicant. [R] is currently in daycare two days a week and is a well-behaved and busy child. She will be attending school in the fall. She has a close bond with the Applicant and with her older “sisters” [the foster sisters]. She was described by the Applicant as being anxious about her future and wanting to be promised that she will be staying with the Applicant and with the people who are her family. This includes [the foster sisters] and her friends from church and daycare.

18[A] has come a long way since her placement with the Applicant. She is now meeting all of her milestones in the areas of speech and motor development. When she came into the Applicant’s care she was described by the Applicant as not knowing how to smile. Now she is outgoing, bright and happy. She has some sleep problems when anxious. A Speech Therapist testified that [A] was assessed and attended monthly speech therapy sessions over the last year and will continue to be monitored every three months. It is unknown at this time whether she will face future delays in the same areas or other areas. She is currently in daycare two days a week.

19The Society does not question that the Applicant has been able to meet the physical, mental and emotional needs of the children. The Society’s decision rests to some degree upon the Applicant’s ability to do so into the future primarily due to concerns about her income and the fact that there are other children in the home and the Applicant’s potential fostering of other children.

Financial Considerations

20The Applicant stated that she chose to be a foster parent about four years ago and the [ ] agency approached her to provide a home for [R] at that time. The per diem rate for fostering children with special needs is significantly higher than for children without these needs. At the time that [R] came into her care, the Applicant continued to work part-time at her church. Once the other children came into her care, she took a leave from her part-time work to care for the children. [A] was fragile at the time and needed to attend specialist appointments. The Applicant intends to return to part-time work when [R] attends school in the fall. She purchased a large home a year and a half ago and currently has no debts and is able to meet the needs of all of the children in her home.

21The Applicant submitted a budget that takes into account her expenses and income for a scenario where the children were placed permanently with her and she was no longer receiving per diem payments for them. The expenses listed represent less than half of the Applicant’s projected income. A substantial portion of the income comes from the per diem payments that the Applicant currently receives for [the foster sisters]. There is currently a long-term plan for [R] to remain with the Applicant and the Applicant also plans for [the foster sister] to be in the home for the long term as well. Given that that is the case, this income source is stable and she will continue to be able to meet the needs of [A] and [R] as well as the other children.

22There was no evidence presented by the Society to suggest that the Applicant would not be able to meet the needs of the children because her income was insufficient to do so. Although the Society does not consider the Applicant’s per diem payments for foster parenting to be income, these payments have been a source of income that has been used by the Applicant to support the children. Furthermore, the Society accepted the Applicant as a prospective adoptive parent and considered her along with other prospective parents for the children. The Applicant’s occupation for the past four years and at this time is foster parenting. The Applicant has been able to provide a comfortable home for four children through her efforts at foster parenting and other part-time work depending on the circumstances and the needs of the children in her care. She is clearly capable of continuing to do so.

23The Society’s position is that it did not consider the income from the per diem payments that the Applicant receives as income. However, it did not rule out the Applicant as a prospective adoptive family when considering possible matches. The Society made a judgment that the financial situation of another prospective adoptive family was better than the Applicant’s. The Board concludes that the financial situation of any prospective adoptive parent is relevant in absolute rather than relative terms. That is, does the prospective adoptive family have the present and future financial means to meet the needs of the children. The Applicant has demonstrated that she has had the means to do so while foster parenting four children and the budget that she submitted makes it clear that she will in the future.

24The Board is confident that the Applicant will continue to be able to meet the children’s physical, mental and emotional needs as she has done up until this time.

Positive Relationship with a Parent and a Secure Place in a Family; Continuity in the Children’s Care and the Possible Effect on the Children of Disruption of that Continuity.

25The sisters have a secure attachment to and positive relationship with the Applicant. They have a secure place in the Applicant’s family and home. They have both lived in the Applicant’s home for over one year. In addition, they have formed attachments to the two other children in the home who form part of their family as well.

26The children have not had a secure place in a family until they were placed with the Applicant. They have had previous placements in foster care which make the issues of security and continuity of care significant ones for them. The Board also accepts that [R] is likely to react in a negative way to a move given her statements to the Applicant and her past history. Similarly, [A] presented as an unhappy child and nearly mute when placed with the Applicant, suggesting underlying emotional problems in addition to her speech delay. A move is likely to be a traumatic experience for the children and as a result, they are both likely to regress if they were to be moved. It is not known what the severity of the trauma might be nor the nature, scope and duration of their regression.

27The Board concludes that it is in the children’s best interests that they remain in the secure and stable home where they currently reside in order to ensure that they do not experience trauma yet again.

Other Relevant Circumstances

28The Society submitted that the best match for the children was a two-parent family with no other children and income from employment. The Board considers that although this may be true in theory, it is not so when looking at the realities of the children’s history and the particulars of their current placement. The Applicant was considered both by the society that conducted the SAFE homestudy and the Society as an approved prospective adoptive family for the children. The children have thrived in a home with one parent, two other children and income from foster parenting among other sources. The Board has no doubt that they will continue to do so because it has no evidence to the contrary. The evidence indicated that they failed to thrive in other two parent homes in the past. The Applicant has demonstrated that she is a skilled, capable, responsible and loving parent who has chosen to be a foster mother as her profession and has been a successful parent to the four children in her home despite the challenges she has faced.

CONCLUSION

29The Board finds that the children should be placed for adoption with the Applicant. The Board finds that the Applicant has clearly demonstrated that she is able to meet all of their needs and will continue to do so in the future. The Board finds that it is in the best interests of the children that they be placed for adoption with the Applicant.

DECISION

30The Board rescinds the decision of the Society to place the children, [R] born on [ ], 2008 and [A] born on [ ], 2009 for adoption in a home other than the Applicant’s home.

31The Board orders that the children [A] and [R] be placed for adoption with the Applicant, as it is in their best interests.

CONFIDENTIALITY ORDER

32Parties and their representatives must not use, share or disclose any documents or information provided or used in this application with anyone including the media or on-line. Any documents or information shared by the parties must be used only for the purpose of the hearing of this application by the Board.