CHILD AND FAMILY SERVICES REVIEW BOARD

B.B. and S.B.

v.

ALGOMA CHILDREN’S AID SOCIETY

REASONS FOR DECISION

Date: August 22, 2012

Citation: 2012 CFSRB 32

Indexed as: B.B. and S.B. v. Algoma Children’s Aid Society

(CFSA s.144)

INTRODUCTION

1[ ] (“ the Child”) is two and a half years of age. The Applicants B.B. (“foster father”) and S.B. (“foster mother”) were the Child’s foster parents for almost two years until the Child was removed from their care on April [ ], 2012. The Applicants wish to adopt the Child and expressed their intention to the Algoma’s Children’s Aid Society (‘the Society’) in November 2010. The Society did not complete the adoption assessment process and therefore the Applicants were not approved as prospective adoptive parents.

2The Society informed the Applicants in writing on April [ ], 2012 that the Child was being moved permanently and permanency options for him would be explored, in effect, refusing their adoption application. The Applicants applied to the Child and Family Services Review Board (“Board”) on June 5, 2012 for a review of the Society’s decision to refuse their adoption application and to complain that the Society had not given them reasons for its decisions for the adoption refusal and reasons for its decisions relating to child protection investigations.

3This case involves two applications: one made under section 144 and one under section 68.1(4) 5 of the Child and Family Services Act (“Act”). Under section 144 of the Act, the Board has to decide what action is in the best interests of the Child and either confirm or rescind the Society’s decision to refuse to proceed with the adoption application for The Child. Under section 68.1 (4) 5, the Board has to decide whether the Society gave the Applicants reasons for its decisions for the adoption refusal and reasons for its decisions relating to three child protection investigations.

4The Board has determined that, in all of the circumstances, it is in the Child’s best interests to confirm the decision of the Society to refuse the adoption application. The Board has also determined that the Society did not provide the Applicants with reasons for its refusal of their adoption application. The Board has determined that the Society provided reasons for its actions relating to the child protection investigations and therefore dismisses this part of the complaint. These are the reasons for the Board’s decisions. The Board will provide background information and then deal with section 144, followed by section 68.1 (4) 5.

BACKGROUND

5The Applicants’ home was an alternate care home overseen by [ ] a First Nations child welfare agency providing services for First Nations families including alternate care homes licensed by the Ontario Ministry of Children and Youth Services (“MCYS”). These homes operate in the same manner as foster homes. Children who are First Nations children can be placed in [ ] homes as a way to ensure a connection and continuity with their cultural heritage and traditions. The Applicants have a long association with [ ], however, these reasons focus on their involvement during the period October [ ], 2009 to April [ ], 2012.

6[ ] (“the other child”) is another child who came into the care of the Applicants on October [ ], 2009. He is 4 years old. He had been in the care of his biological mother and maternal grandmother before being placed with the Applicants. He was removed from the Applicants’ home during a child protection investigation from August [ ], 2011 to September [ ], 2011. He was returned to the Applicants’ home on September [ ], 2011 and removed again on February [ ], 2012 because the Applicants were unable to parent him. At one point in time during the other child’s placement with the Applicants, they expressed an interest in adopting him but did not follow through with these plans. The other child is a distant relative of the Applicants who live on a reserve. Both the Applicants and the other child have status as First Nations persons.

7The Child was born on [ ], 2010 and came into the care of the Society on March [ ], 2010. He was placed with the Applicants on March [ ], 2010 until May [ ], 2010 at which time he was placed in a kinship home. He was removed from that home and placed again with the Applicants on June [ ], 2010. The foster mother expressed an interest to the Society in adopting the Child in November 2010. He was made a Crown Ward with no access on July [ ], 2011.

8The Child was removed from the Applicants’ home during a child protection investigation from August [ ], 2011 to September [ ], 2011. He was returned to the Applicants’ home on September [ ], 2011 and removed again on April [ ], 2012 as the result of the outcome of a child protection investigation and other concerns that the Society had regarding the Applicants’ ability to parent him that will be explained in detail in the following sections. Although the Child is a distant relative of the foster mother, he does not have status as a First Nations person.

9The other child’s behavior over time became increasingly difficult for the Applicants to manage and ultimately the Applicants’ became overwhelmed and frustrated with his behavior. The Applicants were given suggestions and offers of support on several occasions regarding managing his behavior. The other child was placed on medication in November 2011 in order to help manage his behavior. Finally, in February 2012, the Applicants agreed with the Society that they could no longer parent him and he was removed from their home on February 15, 2012.

10During the time that both children were in the care of the Applicants and after the other child was removed, the Society conducted three child protection investigations. The Society verified the allegations in all three investigations. The first two investigations conducted in August 2011 and in February 2012 were related to the use of unapproved caregivers by the Applicants. The third investigation related to the use of physical discipline. This allegation was made by the other child on March [ ], 2012 while in the care of his new foster parent. The other child informed her that the foster mother had used physical discipline on him when he was in her care. The Society initiated a child protection investigation and verified this allegation. The Society informed the Applicants that their adoption process relating to the Child would be on hold pending the outcome of this investigation. As a result of the outcome of this investigation and the other concerns that the Society had regarding the Applicants’ capacity to parent the Child, he was removed from their care on April [ ], 2012. The Society met with the Applicants on that date and explained to them that the removal was based on the results of the previous and current investigations and other concerns which placed the Child at risk in their care. The Society confirmed its position in writing to the Applicants on April [ ], 2012.

11The Society did not continue with the adoption process as a result of the Child’s removal. In addition, the Society testified that even if it were to continue with the process, the Applicants would not be approved as adoptive parents based upon the results of the Structured Analysis Family Evaluation (“SAFE”) homestudy assessment that had been partly completed.

12The Applicants then commenced an application to the Board under s. 144 of the Act. They also commenced an application to the Board under s. 68.1 of the Act.

ANALYSIS

Section 144

13The 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 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, confirm or rescind the decision under review [s. 144 (11)].

14In determining what action was in the child’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.

Other purposes

(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,

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

15The 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.

16The main issue for the Board in this case is the Applicants’ ability to meet the Child’s 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 Child’s Physical, Mental and Emotional Needs and the Applicants’ Ability to Meet those Needs

17The Board heard testimony from the Society that raised significant concerns regarding the Applicants’ judgment and capacity to keep the Child safe and meet, in particular, his physical, mental and emotional needs. This testimony was uncontested by the Applicants and is summarized in the following paragraphs.

18Two child protection investigations were initiated by the Society regarding the Applicants’ use of unapproved caregivers for both children. Witnesses for the Society and [First Nations child welfare agency] testified that foster parents and alternate care parents who have children in their care must seek the approval of the Society to use other caregivers for children who are placed in their care. This is communicated to all foster and alternate care parents and was communicated to the Applicants. The first incident occurred in August 2011.

19The Children’s Services Worker (“CSW”) for the Society testified that the Society became aware on August [ ], 2011 that the other child had been left in the care of a maternal aunt over a weekend during which a pow-wow was going on. The Society removed both children from the care of the Applicants while it conducted an investigation into the matter.

20The aunt resided [near] the other child’s biological father. The Child Protection Worker (“CPW”) who conducted the investigation into the matter testified that the other child had been seen in the company of his biological parents. The Applicants had been made aware that the other child was not allowed to have access to either his biological mother or father. The father had been convicted of child abuse charges among other charges. The maternal aunt was not an approved caregiver for either child.

21The allegations were verified and the CPW met with the foster mother on August [ ], 2011 and reiterated the need to ensure that any caregivers were approved caregivers. The CPW testified that the foster mother understood about the need to have caregivers approved, the possible risks to the children if caregivers were not approved, and the meaning of no access as it related to the biological parents. The Applicants agreed that they would not leave the children in the care of unapproved caregivers. The children were returned to the Applicants on September [ ], 2011.

22The Adoption Coordinator (“AC”) for the Society testified that on February [ ], 2012, the foster mother made her aware that she had used her daughter to take care of the Child on a number of occasions. The AC further stated that the foster mother said that her daughter was in the process of being approved as a caregiver. The AC informed the foster mother that she should only be using approved caregivers for the children and that she was aware that this had been the subject of a previous investigation. The AC stated that she was surprised by the admission by the foster mother that she was aware that she should use approved caregivers and her daughter had not been approved and that the foster mother did not acknowledge that this might be wrong. The AC forwarded the information to the CSW and an investigation was undertaken. As a result, the adoption process for the Child was put on hold as per the policy of the Society in situations when a child protection investigation is in the process of being conducted.

23The CPW verified that the Applicants were using the foster mother’s daughter as well as their son-in-law to take care of the children. Neither individual had been approved as a caregiver for the children and the Applicants acknowledged that this was the case.

24A third child protection investigation was conducted in March 2012 as the result of allegations made by the other child that the foster mother had hit him with a wooden spoon. The CSW testified that on March [ ], 2012, the Society received a report from [First Nations child welfare agency] that the other child had informed his new foster mother that the foster mother had hit him “really hard”. The other child was interviewed on March [ ], 2012 and stated that the foster mother “hits me with a black spoon on my feet”. He stated that this was done when he got into trouble. He said that it hurt and he cried when it happened. The CSW testified that she found the other child’s statements to be believable. The Alternative Care Worker (“ACW”) from [First Nations child welfare agency] testified regarding this incident and her testimony was consistent with that provided by the CSW.

25The CPW interviewed the foster father on April [ ], 2012 and he denied using any physical discipline or seeing the foster mother use it. He told the CPW that he would give the other child a time out when he misbehaved. The CPW met with the foster mother on the same day and she first denied the use of physical discipline but later admitted that she had spanked the other child on one occasion. Although the foster mother denied using a black spoon to hit the other child, a black spoon was observed in the kitchen.

26The Act is clear with respect to the use of corporal punishment in relation to children who are in care. Section 101 of the Act states:

No service provider or foster parent shall inflict corporal punishment on a child or permit corporal punishment to be inflicted on a child in the course of the provision of a service to the child. R.S.O. 1990, c. C.11, s. 101.

27The CSW testified that the Applicants were aware of the Society’s policy regarding the use of physical discipline. This is reviewed with all foster parents on a regular basis and they sign an agreement to that effect as did the Applicants. This policy was reviewed with the Applicants on eight occasions between November 2009 and November 2011 as part of the rights in care for foster children.

28The Applicants did not contest any of the evidence submitted by the Society with regard to the verification of the three incidents outlined above. All foster parents are expected to comply with the policy regarding the use of approved caregivers and the legal prohibition against the use of corporal punishment. Both of these expectations are designed to ensure the protection and safety of children in care.

29The Society submitted other evidence that supported its concern regarding the Applicants’ capacity to meet the physical, mental and emotional needs of both children. Much of this evidence related to the Applicants’ use of expired car seats, inappropriate use of car seats and the children being observed to be not secured in their car seats; the Applicants’ failure to attend to the dental hygiene and care of the children, a concern regarding the children’s diet and the Applicants’ lack of capacity to provide consistency, structure and appropriate child management techniques in dealing with the children’s behaviors. This evidence was not contested by the Applicants. All of this evidence as well as the evidence relating to the three child protection investigations significantly call into question the Applicants’ capacity to meet the Child’s physical, mental and emotional needs.

30The Board concludes that the Child was at risk in the care of the Applicants and his physical needs including his need for safety could not be met by the Applicants. It is absolutely necessary that the physical needs and safety of any child in care be guaranteed. The behavior of the Applicants regarding the use of unapproved caregivers demonstrated that they did not recognize the potential risks posed toward the Child by being left in the care of unapproved caregivers nor the need for such a policy to protect and ensure his need for physical safety. Similarly, the foster mother’s use of corporal punishment with the other child demonstrated that despite agreeing on eight occasions not to do so, she was unable to comply with this unambiguous policy of the Society and legal requirement for children in care. The Society’s responsibility is to ensure the protection of children in their care and it acted in the Child’s interests in removing him from the Applicants’ home. The cumulative nature of the evidence regarding the outcomes of the three child protection investigations as well as the evidence relating to other concerns about the Child’s care indicate that the Applicants cannot be depended upon to meet his physical, mental and emotional needs.

31The AW testified extensively regarding the Applicants’ involvement in the adoption process. The AW’s testimony included information that reflected a lack of motivation exhibited by the Applicants to complete the process which the foster mother initiated in November of 2010. The AW stated that applicants have 60 days to complete the steps that they are responsible for and generally applicants are eager to comply with this timeframe despite other things going on in their lives. The process was still not completed by the Applicants as of March [ ], 2012, the date when the Society received the allegations regarding the use of physical discipline.

32The AW described the Applicants’ results on the SAFE homestudy. The homestudy is a provincially mandated tool used in both public and private adoptions and is a requirement for all prospective adoptive parents to complete. One section of the homestudy, the psychosocial inventory, includes 70 factors that are assessed and scored using objective criteria considered to be good indicators of healthy family functioning. Applicants can be given a rating of 1 to 5 for each of the factors. A rating of 1 is considered high and a strength and lower ratings are considered as a concern with a rating of 5 being a significant concern. The Applicants had 37 factors that were rated 3, 4 or 5 and 27 out of these that were rated 4 or 5. Some of the factors on which the Applicants received scores of 4 included areas such as commitment, problem-solving, coping, judgment, and child development. They received a rating of 5, the lowest possible rating, on parenting style. The AW testified that the concerns identified through the homestudy were so significant that the Society would not have continued to proceed with the adoption process in the face of the Applicants’ results on the homestudy.

33The Adoption Supervisor (“AS”) testified and indicated that even if the Society did not consider the Child to be at risk because of the outcome of the three child protection investigations and the Society’s other concerns, the results of the homestudy would have been sufficient grounds for the Society not to proceed with the Applicants’ adoption application for the Child. The AS confirmed that the steps to the adoption process were the same for all prospective adoptive parents regardless of cultural background and whether or not an applicant is a First Nations’ person.

34The Board accepts the conclusions of the Society not to proceed with the Applicants’ adoption application with regard to the Child on the basis of the evidence presented by the Society regarding the child protection investigations, the Society’s other concerns and the homestudy. The Board concludes that the Applicants’ behavior demonstrates that they cannot be depended upon to meet the Child’s physical, mental and emotional needs and therefore, it is in the Child’s best interests not to be placed with them. Therefore, the Board confirms the Society’s decision to refuse the Applicant’s application to adopt the Child.

Section 68.1(4) 5

35The issue for the Board under section 68.1 (4) 5 is whether the Society provided the Applicants with reasons (explanations) relating to the decisions made. The Board’s authority and the Society’s obligations are found in the following sections of the Act:

68.1(4) 5 The following matters may be reviewed by the Board under this section:

(5) Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

36The Applicant’s complaints as described in their application refer to their request for services to the Society in order to support them in the care of the other child. Their position is that the Society has failed to provide those services. According to them, this lack of support had the effect of preventing them from caring properly for the Child, who they wished to adopt. In these circumstances, they see the refusal to adopt the Child as unfair.

37At the pre-hearing, the Board determined that the application was eligible under s.68.1(4) 5 with respect to whether the Society provided reasons to the Applicants for the adoption refusal and relating to the child protection investigations. The Society’s position was that the Board did not have jurisdiction to hear the application because the Applicants did not receive a service as they were a foster family and not a parent. The Society withdrew its objection to the Board’s jurisdiction.

38The Board heard evidence relating to the three investigations of the Applicants’ foster family and the Society’s refusal of the Applicant’s application to adopt the Child. The conclusion of the protection investigations had an impact on the decision to refuse the adoption application as it is discussed in the analysis above. As the application with the Board was found eligible in relation to the services received by the Applicants when the investigations were conducted, the Board will review the evidence regarding whether the Society gave reasons to the Applicants after it made its determination that the allegations under investigation were verified.

39The Board in its decision in paragraphs 19 to 21 described the facts in relation to the first investigation of August 2011, where the other child was left in the care of the aunt, an unapproved care giver. The CSW testified that the Applicants knew that the other child was a Crown Ward with no access to the biological parents. She also testified that she did not go into too much detail about the abusive character of the father but had mentioned the Society’s concerns about aggression and assaults.

40The allegations were verified and the CPW met with the foster mother on August 30, 2011. At this meeting the foster mother said that she thought that the aunt had been an approved caregiver in the past and that the Society had documentation to that effect. The CPW testified that she verified whether such documentation existed and did not find any to confirm the approval of the aunt as a care giver. She also testified that the foster mother seemed remorseful but did not seem to understand that the other child had been exposed to a risk when in the presence of his father. The CPW reiterated the need to ensure that any caregivers were approved caregivers. The CPW testified that the foster mother understood about the need to have caregivers approved. The Applicants agreed that they would not leave the children in the care of unapproved caregivers

41The evidence confirms that a discussion occurred on August [ ], 2011, during which the worker explained the Society’s reasons for verifying the report regarding the incident. The foster mother had a chance to explain that they needed a break that week-end and her belief that the aunt was approved. The evidence also confirmed that the Society had communicated clearly their expectations on the issue of approved care givers. The Board is satisfied that the Applicants received reasons for the decision to verify the allegation. The Applicant was given sufficient information to understand the basis of the decision.

42The facts related to the second investigation are described in paragraphs 22 and 23 of this decision and refer to the use of the Applicant’s daughter and son-in-law as care givers. There was a conversation with the AC for the Society on February [ ], 2012 when she was first informed by the foster mother that she had used her daughter to take care of the Child on a number of occasions. During the conversation the foster mother said that her daughter was in the process of being approved as a caregiver. She also mentioned that she was aware that she should use approved caregivers and her daughter had not been approved.

43The CPW verified that the Applicants were using the foster mother’s daughter as well as their son-in-law to take care of the children. She spoke with the foster father on February [ ], 2012 who said that if he had known it would have started an investigation he would have made different arrangements. He was reminded that the last investigation was on the same issue.

44Later on in the same day, the CPW met with the family and spoke with the foster mother who confirmed that her daughter was used to baby-sit a few times but did not disclose how many times the son in law had been. The CPW testified that the Applicants knew that they had not been approved.

45The Board is satisfied that the Applicants were informed of the reason for the investigation as it is the foster mother who volunteered the information. They were also informed of the reasons why the Society verified the allegation. The Applicants already knew the policy of the Society on unapproved care givers. As part of the investigation, meetings occurred with the Applicants to obtain their side of the story. The Applicants were given clear explanations of the reasons for the Society’s conclusions.

46The facts in relation to the third child protection investigation are described in paragraphs 24 to 27 of this decision. The investigation was conducted in March 2012. The allegation that the other child was hit with a spoon was verified.

47The CPW met with the Applicants on April [ ], 2012 to discuss the allegation made by the other child as described above. The evidence established that the Applicants were instructed numerous times that the use of physical discipline was forbidden. There is no evidence that the Society explained to the Applicants during that meeting that the allegation of inappropriate discipline was confirmed and that reasons were provided. This investigation led the Society to decide to remove the Child from the care of the Applicants and the decision of [First Nations child welfare agency] to close their home as a foster home.

48On April [ ], 2012 the Child Protection Supervisor of the Society met with the Applicants. The other workers involved with the Applicants and the worker from [First Nations child welfare agency] were also present. It was a difficult meeting during which the Society informed the Applicants that the Child was to be removed from their care. The Supervisor testified that she explained to the Applicants that the decision to remove the Child was based on cumulative factors including the inappropriate discipline used with the other child as well as their use of unapproved care givers. The discussion took place for 45 minutes.

49The Board is of the view that the April [ ], 2012 meeting was very difficult for the Applicants and that in those circumstances it is hard to asses how much someone might be able to comprehend the information provided by the Society. It is clear from the evidence that the Applicants knew that the use of inappropriate discipline was not acceptable and against Society policy. The evidence did not establish that the Society explained to the Applicants its reasons to conclude that the allegation of inappropriate discipline was verified. The Board did hear that the other child’s statement was viewed as credible by the workers who interviewed him. As well, the foster mother admitted to having spanked him. However, the reasons for the verification of this allegation were given at the hearing and not at the time of the decision.

50Finally, the Applicants expressed the view that the reasons why the Society removed the Child from their care and refused their application to adopt the Child are related to their care of the other child. The Applicants believe that the refusal is unfair because they asked for support for the other child and did not get it.

51The evidence is clear that a meeting took place between the Applicants and the Society and reasons were given to the Applicants by the Society regarding why the Child was removed. As stated earlier, it is not clear whether the Applicants understood all of the information that was shared with them at the time. The Applicants received a letter dated April [ ], 2012 from the Society stating that the concerns raised in the protection investigations regarding the use of unapproved care givers and the use of physical discipline were verified. The letter also stated that: “At this time, the child [ ] is being moved and permanency options for the child will be explored.” This meant that the adoption process had been stopped. However, this was not clearly articulated. The Board finds that this letter was insufficient to inform the Applicants that their application to adopt had been refused and that they had a right to a review before the Board. Furthermore, there is no evidence that someone from the Society explained to the Applicants why their application was refused.

52The decision to refuse the adoption application profoundly affected the Applicants. The right to reasons entails the right to meaningful reasons. To be meaningful, reasons must be timely and contain sufficient information and detail for applicants to understand the factors considered by a society and which factors a society relied upon. That was not done in this case since the reasons relating to the adoption refusal were given at the hearing and not at the time the decision was made. Further, the Applicants did not receive a clearly spelled out explanation of the impact on the adoption process of the Society’s investigations.

53In conclusion, the Society failed to provide reasons to the Applicants for the Society’s refusal of their application to adopt the Child.

54The Board could order the Society to prepare an explanation in writing of their reasons to refuse the application to adopt. However, the hearing on the Applicant’s application under section 144 of the Act, has explored at length the adoption process and the conclusions of the different assessments conducted by the Society. The Board in these circumstances will not make that order but will remind the Society of their obligation to provide explanations to a person who sought a service when a decision is made that affects his or her interests. An adoption service is covered by that obligation.

CONCLUSION

55The Board finds that it is not in the Child’s best interests for the Society to proceed with the Applicants’ adoption application.

DECISION

56The Board confirms the decision of the Society not to proceed with the adoption application for [the child] by the Applicants.

57The Society did not meet its obligation under section 68.1 (4) 5 with respect to reasons for the refusal of the adoption application. However, no order is made under section 68.1 (7) of the Act. The Board dismisses the remainder of the Applicants’ complaints under section 68.1 (4) 5 of the Act.

CONFIDENTIALITY ORDER

58Parties 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.

SUZANNE GILBERT __________________________

Suzanne Gilbert Presiding Member