J.P. and M.P. v. Children’s Aid Society of Algoma, 2013 CFSRB 5

CHILD AND FAMILY SERVICES REVIEW BOARD

J.P. and M.P. v. CHILDREN’S AID SOCIETY OF ALGOMA

REASONS FOR DECISION

Date: February 7, 2013

Citation: 2013 CFSRB 05

Indexed as: J.P. and M.P. v. Children’s Aid Society of Algoma (CFSA s.144)

INTRODUCTION

1This is an application by J.P. and M.P. (the “Applicants”) under section 144(3) of the Child and Family Services Act, R.S.O. 1990, c. C.11 as amended (the “Act”) asking the Board to rescind the decision of the Children’s Aid Society of Algoma (the “Society”) refusing their application to adopt D.M. (the “Child”). This application was heard on November 8, 9, and December 18, 19, 2012.

2It is the position of the Applicants that it is in the Child’s best interests to be adopted by them. They are confident that he has flourished in their home as a foster child, despite the developmental challenges that he faces, and that he has bonded with them and their extended family. It is the Society’s position that it is not in the Child’s best interests to be adopted by the Applicants because they were not recommended for adoption after a Structured Analysis Family Evaluation (“SAFE homestudy”) conducted by the Society. The Society raised several concerns about the Applicants as prospective adoptive parents in the homestudy and at the hearing.

3For the reasons that follow, the Board has determined that it is in the Child’s best interests to maintain the bond he has formed with the Applicants and to provide continuity in the same family where he has thrived, and that he be placed with the Applicants for adoption. Consequently, the Board rescinded the decision of the Society to refuse the adoption application and ordered that the Child be placed for adoption with the Applicants, on January 18, 2013.

BACKGROUND

4The Child is four and a half years old. He was born on [ ] [ ], 2008, and was placed with the Applicants on May [ ], 2010. The Child is a Crown Ward, and his birth family has no right of access.

5On November [ ], 2011, the Applicants submitted an application to the Society to adopt the Child.

6The Applicants were well known to the Society. They had been foster parents for the Society for some 17 years. In their role as foster parents, they received over 150 children into their home. In the first 10 years, mostly adolescents were placed in the home. After that, younger children were also placed in the home. The Society recognizes that many of the children placed with the Applicants were children exhibiting difficult behaviours and/or having a high level of special needs. The Applicants persevered and achieved good outcomes with the majority of the children placed with them. Many of these children, now adults, have remained in regular contact with the Applicants.

7The Applicant foster father has been retired for the last 6 years or so, and receives a disability pension. He has a severe learning disability and cannot read or write. He is the primary caregiver in the foster home. The Applicant foster mother is a social worker who works for [ ] and is also involved in community activities.

8The Applicants both come from large families. The Applicant foster mother came from a large family, with 11 siblings, 4 of whom are deceased.

9There are strained relations with some members of both Applicants’ families because of inappropriate behaviours by those family members. However, the Applicant foster mother’s family readily accepts her foster children; in turn, the foster children in varying degrees feel they belong to a large extended family. The Applicants have less contact with the Applicant foster father’s family.

10As required by provincial standards in responding to an application for an adoption, the Society undertook a SAFE homestudy. The homestudy did not recommend that the Applicants be approved for adoption. The Society’s adoption team met to discuss the adoption application and agreed that they would not approve the application to adopt. They notified the Applicants of the refusal of the adoption application on September [ ], 2012. The Applicants filed their application with the Board on October 1, 2012. The Child has remained in the Applicants’ foster care pending the outcome of this proceeding.

ANALYSIS

11The relevant provisions of the Act on this application are as follows:

144 (1) This section applies if,

(a) a society decides to refuse an application to adopt a particular child made by a foster parent, or other person.

(2) The society or licensee who makes a decision referred to in subsection (1) shall,

(a) give at least 10 days notice in writing of the decision to the person who applied to adopt the child or with whom the child has been placed for adoption;

(b) include in the notice under clause (a) notice of the person’s right to apply for review of the decision under subsection (3)…

(3) A person who receives notice of a decision under subsection (2) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the decision subject to subsection (4).

(11) The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm or rescind the decision under review and shall give written reasons for its decision.

12The specific best interests of the child criteria are addressed in the Adoption section of 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:

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.

13In making its decision in this case, the Board focused on the best interests criteria found at subsections 1, 2, 5, 7 which are relevant to this particular child. There were no issues relating to culture, the Child’s birth family or the Child’s religion. Further, the Child is of a young age and it would have been difficult to ascertain his views and wishes. The Board also dealt with several matters under subsection 10, “relevant circumstances”, being the concerns raised by the Society.

14The Board was guided more generally by the overall purposes of the Act, as follows:

1 (1) The paramount purpose of the 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,

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

15The Act mandates that:

63.1 Where a child is made a Crown ward, the society shall make all reasonable efforts to assist the child to develop a positive, secure and enduring relationship within a family through one of the following:

1. An adoption.

The Board’s Mandate

16In Family Youth & Child Services of Muskoka v. D.M. and C.M., 2010 ONSC 6018 (“Muskoka”) the Divisional Court provides a detailed analysis of the Board’s mandate on a s. 144 application in paragraphs 20-30 of its unanimous decision:

In this case, the pertinent provision is s.144(11) of the CFSA, which states: “The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm or rescind the decision under review and shall give written reasons for its decision”.

The language of this section expressly requires the Board to make a determination as to what action is in the best interests of the child. If the decision under review is a refusal of an adoption application, the action relates to the entire adoption application process, which involves a number of distinct steps. Although action must be interpreted in the context of the decision under review (adoption application or removal from placement), it gives the Board broad authority to determine what should be done in the child’s best interests within the confines of the decision/action under review.

The Board does not have parens patriae jurisdiction to determine best interests in relation to any action. Rather, its determination is confined to the parameters of s.144. Put simply, the Board must determine whether the adoption application or placement is in the child’s best interests having regard to the criteria set out in s.136(2). If the adoption application or placement is in the child’s best interests, the Board will rescind the Society’s refusal decision. If it is not, the children’s aid society’s decision will be confirmed.

Support for this interpretation can be found in subsections 144(12) and 144(13), which prevent a children’s aid society from taking a similar action (another adoption placement or removal from an adoption placement) pending either the expiry of the review period or confirmation of the society’s decision by the Board.

This interpretation is also consistent with the underlying purpose of the CFSA, to promote the best interests, protection and well being of children. It is also in keeping with the underlying purpose of the statutory amendments that resulted in s.144, which were directed to establishing a process, via the Board, for independent review of certain decisions or actions of children’s aid societies.

(…) First, the use of the word “action” bestows broad authority on the Board to determine best interests within the parameters of the decision under review. Second, the comprehensiveness of the statutory review process supports the Board making a substantive decision concerning the child’s best interests. It is a complex quasi-judicial process that would not be necessary if the Board’s mandate was restricted to ensuring procedural fairness in the Society’s adoption application process. Third, s.144 would not explicitly refer to the best interests of the child if it did not intend the Board to make a substantive “best interests” determination.

For these reasons, we reject the submission that the Board’s mandate is limited to ensuring that the society’s process in reaching its decisions concerning adoption applications was fair. We find that the Board’s mandate when reviewing a decision of the society under s.144 is to determine which action is in the best interests of the child and to confirm or rescind the decision under review. (emphasis added)

17The Society argued that since they did not approve the homestudy, they cannot accept the Applicants as adoptive parents and cannot place the Child with them for adoption. The Society submitted that there would essentially be no point placing the Child with the Applicants despite an order from the Board because they would not necessarily support the child going to the Applicants in adoption proceedings before the Court. [s. 149 (5)]. The Society director must also file a statement with the court in which he or she could be of the opinion that the adoption was not in the Child’s best interests [s.149 (4)].

18This argument was rejected by the Court in Muskoka at para 40:

The Society also submitted that the Board’s decision was unreasonable because it has the effect of reducing, if not eliminating, the importance of the homestudy process. Again, we disagree. The fact that the Board disagreed with the decision of the Society, who based their decision on the homestudies, does not mean that the homestudy process has been undermined or eliminated. All it means is that the decisions made by the Children’s Aid Society in reliance on these home studies can be subject to review. Given the wording of s.144, this is the clear intention of the legislature.

19The Board adds that to hold otherwise would be to render the review process under s. 144 meaningless when there was a homestudy that did not “approve” or more accurately, recommend the approval of the applicants for adoption.

20Moving forward, the Society must respect the Board’s finding about the best interest of the Child. Once the child is placed, it is open to the Society to form its views on how the placement is in fact going and to present its views to the Court in the report on the child’s adjustment. Contrary to the implication of the Society’s counsel, the report on the child’s adjustment is not a re-submission of the adoption homestudy, it is a new document, based on what occurs in the actual placement. As the Court noted at para 42 of Muskoka it is then up to the Court to make the final decision about whether an adoption order will be issued or not.

Under s.144, the Board must decide whether the adoption application is in the child’s best interests. If it is, the child is placed for adoption for a minimum of six months. The child can be removed at any time during this probationary period, subject to a further right of review by the Board under subsection 144(1)(b). The approval of the adoption application and the adoption placement does not result in an adoption order. The adoptive applicants must apply to the court to adopt the child. If the Society continues to believe the adoption is not in the children’s best interests, it can indicate that in the director’s statement filed with the court. The ultimate adoption decision is within the exclusive jurisdiction of the court.

The SAFE Homestudy

21The SAFE homestudy is mandatory for Societies in Ontario. It is the standard form of homestudy and has a set structure. Parenting skills and personal attributes are divided into sub-categories and each is scored based on interviews with the applicants and ‘collaterals’, from 1 to 5. Collaterals would include people from the community or individuals such as former children or foster children of applicants who have knowledge of their parenting. A score of 1 is “exceptional strength”, 2 is “strength”, 3 is “concern”, 4 is “serious concern” and 5 is “extremely serious concern”. The homestudy process allows for “mitigation” of some scores from a 5 to a 4 or from a 3 to a 2, for example. This depends on the view of the assessor about things such as whether the applicant has dealt with past events constructively as an adult. This involves a subjective component. Other factors, such as “family” cannot be “mitigated”.

22In this case, the homestudy worker identified several areas of concern while preparing her report. She met with the adoption unit and identified some of the concerns to the Applicants in May of 2012. The evidence of the homestudy worker and the adoption supervisor was that they wanted to give the Applicants the opportunity to “mitigate” concerns because the Child had been with them for so long. The Applicants indicated that they wanted to move forward with the homestudy and adoption application process despite the concerns. The Applicant foster mother asked for an opportunity to respond in writing but this was refused. There were subsequent interviews of the Applicants in their home in June of 2012.

23The homestudy was completed sometime between June and September, 2012. The SAFE homestudy identifies scores for the Applicant foster mother of 2 in 23 of 68 applicable areas; scores of 3 in 26 of 68 areas, scores of 4 in 14 of 68 areas and scores of 5 in 4 of 68 areas. The scores for the Applicant foster father were: scores of 2 for 19 of 68 areas; scores of 3 for 20 of 68 areas; scores of 4 for 12 of 68 areas and scores of 5 for 4 of 68 areas. Where the homestudy noted the possibility of mitigation in the scores, neither Applicant had any scores that were “mitigated”.

24After the completion of the homestudy, the Society’s adoption committee consisting of two adoption supervisors and the consulting psychologist met to make a decision about the adoption application. They unanimously agreed to support the recommendation in the homestudy and to not approve the adoption application. The psychologist had assessed the Child from a developmental issues standpoint and his assessment was referenced in the homestudy. However, he had not assessed the Applicants whom he had never met. His information about the Applicants was based completely on the homestudy. He was not asked to assess the Applicants or the Applicants with the Child.

25The Applicants were provided with the completed homestudy and the decision to refuse the adoption application at a meeting on September [ ], 2012. The Applicants’ perspective is that they were never given a real opportunity to answer to the homestudy. They felt that the homestudy worker had made up her mind and that the interviews after the concerns were first raised in May of 2012 were more about confirming concerns than trying to “mitigate” them. The Applicant foster mother felt that the opportunity to address the concerns in writing prior to the completion of the homestudy would have been helpful because she would have been able to think and process and respond more thoroughly to the concerns. Once the homestudy was completed, it was presented as final and the Applicants were not given a chance for further input. Given the Society’s stated commitment to trying to place the Child in the foster home to preserve his continuity of care, it may have been helpful to provide further opportunity for clarification or to have a psychological assessment of the Applicants.

26The Society homestudy worker did not interview the Applicants former foster daughters, now adults, who are actively involved as part of the family, in making her assessment for the homestudy. She offered no explanation for not interviewing the former foster daughters.

27The Board heard directly from the two former foster daughters. One of them is a teacher and is married with a young child who is a playmate to the Child. The Applicants plan to have them act as their alternate caregivers for the Child should something happen to them. The evidence of both former foster daughters was positive in all aspects of the Applicants’ ability to care for, love, help educate, support and nurture the Child as part of a family. In assessing the Applicants’ ability to meet the needs of the Child and parent the Child, the former foster daughters had information to offer about having been parented by the Applicants and about how the Applicants interact with the Child as part of the family. Further, the teacher is central to the future planning for the Child as the chosen alternate caregiver, an aspect of the homestudy assessment. The failure to interview these important “collaterals” was a significant oversight in terms of thoroughness and rigour of the homestudy process.

28The Board is satisfied that the homestudy does not hold all of the information or answers to the question of what action is in the best interests of the Child.

Criteria 1 and 2: The Child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs and the Child’s physical, mental and emotional level of development.

29The Board concludes that the Child’s needs have been met by the Applicants and that they would continue to meet his needs into adulthood.

30The Child was placed at the Applicants’ home at age 17 months. According to the Applicant foster mother, he was delayed in meeting all aspects of his developmental milestones, and presented as “a little shell, with no facial expressions”. The Child was severely neglected during the early months of his life, resulting in some damage and delay in brain development. The Applicants did many exercises with the Child, focusing on giving as much stimulation as possible to the Child to help overcome some of the delays in brain development of those early months.

31Physical activities for the Child include various sports, with a heavy emphasis on karate. He also spends time at the gym, doing various activities including running. During the summer, swimming is a main activity at the family’s waterfront cottage. He is taking swimming classes. All of these activities are meant to give him the opportunities available to most children; in addition, they are chosen to help him further improve his gross and fine-motor skills.

32Medically, the Child was taken to [city] by the Applicants and was considered for cranial restorative surgery to remedy the improper fusion of bones in his skull. However, the surgery was considered too intrusive and too demanding. The surgery would have been only cosmetic, with no impact on his future learning capacity. Other remedial medical and developmental services over the years have been available as needed in the rural town where the family resides, or in the larger city that is in proximity of their home community. He has received services such as speech pathology, infant development services, and physiotherapy services in his home community.

33The Child was placed in day care, to provide more opportunity for peer interaction. The day care centre initially had difficulty in coping with his needs, and problems developed there. However, the Applicant foster mother spent considerable time working with the day care staff, and issues have been worked out and the placement at day care is now working well.

34While the consulting psychologist was part of the three-person team at the Society that makes final decisions on adoption placements, he acknowledged that he had not seen the Child in his home environment, and had not interviewed the Applicants, and was basing many of his conclusions on the material contained in the homestudy. He testified that the rationale for moving the Child to different prospective adoptive parents was that the current home environment would not be able to meet all of the Child’s needs for him to reach his full potential. He assessed the Child as having ongoing developmental issues, including with speech and surmised that he would require support in this regard into adulthood. He saw the Child as requiring ongoing supports in the home with his speech and other needs and, based on what he had been told about the Applicant foster father, was concerned that he could not assist the child developmentally.

35The Applicant foster father has severe learning disabilities and cannot read or write which has resulted in his choice to retire and be the primary caregiver for the foster children. The Applicants have found a way to communicate and compensate for the disability in their home. In the homestudy, which was reviewed by the psychologist, the Applicant foster father’s “communication” score was a 5 (serious concern). According to the body of the homestudy his scores of 5 related to communication “cannot be mitigated”. The Board heard evidence that the Applicant foster father had assisted his former foster daughters with math homework. The evidence was that both Applicants helped the Child with his speech but that it was the foster mother who read to him. When asked in cross-examination whether he foresaw that the Applicant foster mother would have problems responding to the Child’s needs in this regard, the psychologist responded that he did not.

36The psychologist’s report dated August [ ], 2012 offered recommendations relating to the Child’s cognitive and behavioural and emotional functioning. The recommendations relating to the foster parents had, on the evidence before the Board, already been part of their work with the Child.

37The Society’s Resource Worker testified on behalf of the Applicants. Her role is to work with the children in foster homes and to provide them with additional support. She worked one to one with the Child outside of the home. This involvement is meant to be time-limited, and has now ended with the Applicants’ family. She and the Applicants worked to successfully help the Child adjust to his educational setting.

38The Resource Worker has never been given a copy of the August [ ], 2012 report written by the consulting psychologist, even though her role was to work with the Child and the foster parents on issues like those assessed. It would have been helpful to have her view on the assessment and whether it accurately reflects her experience with the Child and the Applicants.

39The Child has been making significant progress on all developmental milestones, and the Society recognized this progress and has discharged him from their infant care service.

40Based on the testimony of the Applicants and the Resource Worker and noting the withdrawal of external programming, the evidence indicates the Child appears to have attained developmental levels almost normal for his chronological age, with the exception of his speech.

41The Child’s speech development has been the most difficult area, and he still shows some lags here. He is still in the habit of dropping the first consonant sound from his words, and the Applicants recognize the need to continue focusing on this area of his development. Both Applicants assist the child with his speech and are committed to continuing to do so. Previously, the Child showed more frustration which impacted on his behaviour. The Child has made progress in his speech, with the help of the Applicants and the resources put in place. His overall level of frustration has declined. Further, the Child is less frustrated with the Applicants and the other foster child because they understand his speech. This demonstrates the Applicants’ ability to meet his needs through facilitating communication and is also important from a continuity of care standpoint.

42Even if the psychological report is accurate and the child will have ongoing developmental needs beyond speech, the Applicants have demonstrated their commitment to meeting and resourcing each identified need of the Child. There was no evidence to suggest that they would not do so into adulthood. The Applicants also showed through their actions that they could offer support to family members with special needs. One of their former foster daughters had mental health difficulties and the evidence was that they offered her support and unconditional love. The Applicants’ ongoing involvement, acceptance and support of their former foster daughter as part of their family in the face of personal struggles supports the Board’s conclusion that the Applicants can meet the Child’s special and emotional needs into adulthood, as their own child.

Criteria 4 and 7: The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family and the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

43The Board is satisfied that the Child has developed a positive relationship with the Applicants and is secure as a member of their family. Because of this, maintaining his continuity of care is of the utmost importance. A disruption of that continuity would negatively impact the Child.

44The Applicants have developed a close relationship with the Child, and feel an extremely close bond with him. Initially, they accepted him as another temporary placement in their home, yet very soon into the placement they began to think about adopting him.

45The Applicants testified that they consider the Child to be a part of their family. The Board is satisfied the Applicants love the Child, and that they believe they can provide the best permanent plan for the Child. To remove him for an unknown plan of adoption, by adoptive parents yet to be found and identified by the Society, they consider to be tearing the child from the only family he knows, and from the only community with which he is familiar.

46After being with the Applicants for almost three years, the Child has developed a close attachment with the Applicants. He misses them when they both need to be away from him. This was not disputed by the Society.

47The family has a clear structure in place around normal family routines, such as mealtimes, playtimes, bed time and day care. The Applicant foster father prepares meals and both Applicants are part of the bed time routine. They use time outs for discipline and have found appropriate ways to deal with the Child’s behaviours when acting out or frustrated. While the homestudy was critical of the Applicants in general about rules, routine and consistency, the evidence before the Board including from the two former foster daughters and the Resource Worker who all spend time with the Applicants and the Child, was that there was appropriate structure and age-appropriate discipline in the home.

48The Applicants keep in touch with many of the children that were formerly placed in their home. They consider many of these children as older siblings for the Child. The Applicant foster mother gave examples of times when the Child, appropriate for his age, would show empathy for others and try to comfort them if they were feeling upset.

49The two former foster daughters who testified at the hearing in support of the Applicants described their time in the Applicants’ foster home (7 and 5 years respectively) as very positive, and responsible for bringing them to the point of achieving success as young adults. They both described feeling like they were the Applicants’ daughters. They described the foster child as being like a brother to the Child. They spoke positively about the routines, the discipline, the allocation of chores, and the good family times that were always in place in the foster home.

50The foster care coordinator who has worked with the family for three years testified that she is absolutely convinced, if the adoption goes through, that the Applicants will treat the Child as their own.

51The Board finds that the Applicants have given the Child, and represent for the Child, the positive relationship and a sense of security as a member of their family. As well, in view of the many challenges that the Child faced when he was placed with the Applicants, and the significant progress that he has made while with them, continuity of care for the Child is critical. He has made progress with his speech and is more comfortable and less frustrated when with the Applicants than with other adults. A disruption of continuity could, based on the Child’s history of not adjusting well to new environments, lead to acting out behaviours. The Adoption Supervisor and the consultant psychologist acknowledged that a move away from the Applicants would have a negative impact for the Child. Temper tantrums and more oppositional defiant behaviour would be expected, accompanied by feelings of sadness, anxiety, and loss.

52The Society’s plan for the Child is to have him placed for adoption with a couple that it feels would be better able to provide a secure future for the Child. There was no evidence or other indication presented by the Society that it currently has a specific placement in mind as prospective adoptive parents for this Child. There is a system in place (Adoption Resource Exchange) where at regular intervals, the Children’s Aid Societies of Ontario will share or exchange information regarding specific children for whom an adoptive home is sought, or on specific couples who are looking for a child (Adopt Ontario). Generally, the more the child has special needs, the more difficult it becomes to find suitable and willing adoptive parents. The Child has challenges with his physical appearance that will not change over time and which have been accepted fully by the Applicants.

53The Applicants have a solid track record of love, commitment, and dedication to the Child. They have spent almost three years intensely working with this Child and treated him as part of their family.

54The Board finds that the losses involved for the Child in being removed from his current family are too great when compared to the uncertainties involved in starting a search for new adoptive parents. While the Society’s position was that prospective adoptive parents have to be better than average and attain a higher standard than foster parents, the question for the Board is what is in the best interests of the child. Considerations such as continuity of care, impact of disrupting that continuity and security as a member of a family, all favour the Child’s adoption placement with the Applicants as opposed to an unknown, “above average” family.

Criterion 10: Any other relevant circumstance

55The Society raised several specific concerns as the basis for refusing the adoption application. The adoption refusal letter dated September [ ], 2012, identifies concerns which were also identified in the testimony of the homestudy worker. These concerns related to: the Applicant foster father’s perceived uncertainty about adoption, history, past traumas and unresolved loss, chronic condition of the home and its relationship emotional instability, relationship issues between the Applicants and in terms of extended family relationships, financial instability and parenting concerns. Some of these evolved into more particularized concerns at the hearing. The Board will deal with the merits of each remaining concern below, taking into account the homestudy and the evidence before the Board.

Commitment to Adoption

56The Board is satisfied that the Applicant foster father is committed to adopting the Child. The Applicant foster father may have shown some general ambivalence to adoption to the homestudy worker which was interpreted as “uncertainty” about adopting the Child. He testified that he feels that, where possible, children should be with their birth parents. He recognizes that for the Child, this is not possible and that therefore, it is best for him to be adopted, and by the Applicants. The Board had no concerns about the Applicant foster father’s ability to treat an adopted child as one of his own. This is so because he has demonstrated through actions that he treats two of his former foster children as his own daughters. They both testified to this effect. The Applicants act in the role of grandparents to the child of their former foster daughter. No concerns were raised by the Society about the Applicant foster mother’s commitment to adoption.

The family’s financial situation

57The Society’s Residential Services Supervisor expressed the concerns of the Society about the Applicants’ financial situation, and their ability to adopt the Child. The Board is satisfied that the Applicants have the ability to care for the Child financially.

58The Society has made clear that, if the Applicants were to adopt the Child, they would lose the current income that they receive for him as foster parents. As well, after an initial post-adoption period, they would lose the oversight and support services currently offered to them as foster parents. Additionally, if the adoption went through, there are suggestions, later contradicted by a Society staff in her testimony, that the other foster child currently in the foster home would be removed and they would also lose the foster parent payment for that child.

59The Applicants feel that they are financially secure and have the financial means to adopt the Child. Detailed information was submitted in evidence, and will only be summarized here.

• The Applicants own their home, two waterfront properties, and have a partial ownership in a large and valuable tract of land.

• Current family income from all sources other than payments or reimbursements from the Society exceeds $80,000 per year.

• The Applicant foster mother will receive an indexed pension upon retirement.

• The applicants owe approximately $60,000 and have slightly more than $15,000 in cash assets.

60The above numbers do not exactly match the numbers in the homestudy; they are more up-to-date, and reflect changes in the loan balance outstanding and a small inheritance that was received. The homestudy worker prepared her own figures for the homestudy without double checking them with the Applicants and clarifying information provided by the Applicants. The Applicants do not pay a tithe to the church as indicated in the homestudy, but instead, the Applicant foster mother volunteers time equivalent to the tithe. The homestudy information is not as reliable as that presented at the hearing, which the Board accepts and which is backed up by banking and tax documentation.

61The Foster Care Coordinator testified that she was not aware of any requirement within the Society for the foster child to be removed if the Child were to be adopted. She indicated that based on her four years of experience at the Society, the other foster child would stay in the home, even if the adoption of the Child went through. No new foster placements would be made. This contradicts the Society’s position that it would, as a matter of practice, remove foster children from a home for at least a year after an adoption placement. The Foster Care Coordinator was not aware of any change in practice or policy consistent with the Society’s position and believes that she would have been advised of any such change.

62The Board finds that the Applicants have the financial means and ability to manage finances necessary to meet the Child’s needs on adoption. Whether or not the Applicants receive the additional funding for the other foster child, they have demonstrated that they can pay down loans, manage assets and re-finance in a responsible way. They also have ongoing, reliable sources of income including from a [ ] job and pension and from a [ ] program.

The condition of the family home

63The Society sees as a very significant issue the condition of the house, specifically the level of clutter, (sometimes referred to as “hoarding”), and the issue of cleanliness. This was a major theme in the homestudy, and of concern to the Society at the time when the Applicants had applied to become a foster home, more than 17 years ago. It has remained an issue of concern over the years. The evidence of the Resource Worker was that in the past, when issues had arisen it was sometimes due to the behaviour of a youth who would not clean their room and that she had advised the Applicants on occasion to pick their battles and not put the focus on the condition of the room.

64The Foster Care Coordinator who testified on behalf of the Applicants, testified that, in years past, when issues were raised about clutter concerns, the Applicants responded very quickly to improve the situation. The condition of the home has not stood in the way of the Society placing at least 150 children in the home and no children have been removed from the home because of concerns with clutter or cleanliness.

65The Board asked both former foster daughters, independently, what if anything they would change in the Applicants’ home to make them better foster parents. In their answer, neither made any reference whatsoever to the issue of clutter, “hoarding”, or cleanliness.

66The Applicant foster mother acknowledged that clutter has been an issue over the past number of years. She testified that family circumstances had, in the past, contributed to the excessive clutter and the perceived “hoarding”. She made a concerted decision in November of 2011 to de-clutter and to maintain a home without clutter. There was no evidence before the Board to show that circumstances or past issues have led to a re-lapse of accumulation of clutter, since the decision to de-clutter was implemented in December of 2011.

67Concerns about clutter led to an unannounced visit on November [ ], 2011. At that time the Foster Care Supervisor and Coordinator observed a number of issues which caused concern from a safety perspective (e.g. stairs cluttered with shoes, 2 gas generators in the basement, the TV perched precariously on a small table, etc.). It was also noted that the yard around the house had items such as pieces of wood, empty water bottles, and recycling boxes lying about. The level of cleanliness was also raised by the Society staff.

68At that time, the Applicant foster mother was actively trying to de-clutter and had made the plan with knowledge of the Foster Care Coordinator. The beginning of the de-cluttering process lead to more things being in the open while the sorting started. The Foster Care Coordinator confirmed that this was the worst she had ever seen the house. The Foster Care Coordinator stated that, at the time of the unannounced visit, the condition of the house was also worse than normal because the Applicant foster father had been ill for a number of days. Her testimony was that a week later, when she visited again, the home was in much better condition, and that much of the clutter in the rooms and in the storage areas had been cleared out.

69The Applicant foster mother testified that over the last year, many improvements have been made. The bathroom has been renovated, a number of rooms have been painted, and tears in the wallpaper (described as holes by the Society) have been repaired.

70The Applicant foster father does not like clutter. He is happy with the condition of the home now and has been for the past year and a half. He has seen changes in the Applicant foster mother’s approach to clutter including that she does not go to garage sales any longer.

71The Foster Care Coordinator testified that over the past year, she has visited the home on a monthly basis. Her evidence confirms the evidence of the Applicants about the improved state of the home. The Foster Care Coordinator indicated that the condition of the home in the last year has been very good, that no issues of cleanliness, clutter, or safety have arisen, and that the current condition of the house meets all standards set by the Society and the Ministry. She believes that significant and real changes have occurred in the Applicants, and she does not see them reverting to their past habits.

72The Board received 5 pictures from the Applicant which she testified were taken in the last year. These pictures had been sent to staff at the Society in the past year because they could not attend at the home for a visit. Neither party could provide an exact date for the pictures. They show the family living room, kitchen, two bedrooms, including the Child’s, and the basement recreation room. They show those rooms to be in reasonable state of repair, adequately but not richly furnished, and in a decent state of upkeep.

73The Board is satisfied based on the evidence of the Applicants and the workers directly in the home in the past year that the condition of the home does not act as a barrier to the placement of the Child for adoption with the applicants. The condition of the home has not negatively impacted on the Child’s care or development. The home meets the Society’s own standards and the Society remains satisfied enough with the home to keep the Child and another foster child in the home. The Society’s foster care coordinator believes that the Applicants will keep up current standards even if she no longer is in the home. The Applicant foster mother is genuinely committed to de-cluttering and the Applicant foster father is happy with the current state of the home.

Diabetes

74The Applicant foster mother has diabetes which the body of the homestudy notes as scoring a “4”. Given her weight, the concern was noted as supported and not mitigated. The Applicants’ testimony was that she controlled her diabetes through diet and exercise. The Applicant is physically active with karate and enjoys outdoor activities. The homestudy does not address the Applicant’s diet or exercise routine. She has lost some weight since the homestudy. In any event, at the time of the hearing, there was evidence that the Applicant’s health was not as concerning as it may have been at the time of the homestudy.

Unresolved Loss

75The homestudy scores the Applicant foster mother as low in terms of dealing with “unresolved loss”. At the hearing, the Board asked the Applicant how she has dealt with the many deaths and losses in her family which are undeniably extensive. She answered “I cry on my sister’s or brother’s or husband’s shoulder to get the grief out. I move on, accept and deal with it.” “I haven’t broken down and don’t need nerve pills, I have dealt with my losses. I help children deal with losses.” She provided specific examples of how she had helped children over the years deal appropriately with loss. She testified that her dealing with her own losses has helped her help others. She also took part in counselling and mentoring in college for two years and continues to engage in self help and self care and uses others for support to deal with her own losses. She was asked if the homestudy worker discussed this with her directly and replied that she had not. This is another example of an assessment process that was, at the very least, incomplete. The Board is satisfied with the Applicant foster mother’s response to how she has dealt with her losses. She has also demonstrated a strong ability to help and support others including the two former foster daughters who testified, which is indicative of having emotional strength.

Relationships/Parenting

Extended family

76The homestudy’s reliance on extended family posed problematic on the facts of this case. The Applicants both have experiences with family members who sexually abused others. The existence of these actions by others, automatically gives the Applicants a low score, which must somehow be mitigated. Yet, rather than treating it as “mitigated”, the homestudy worker draws a negative conclusion from the fact that they wish to distance themselves from their families which include these individuals. The Society did conduct an investigation when it learned of these individuals and even put the homestudy on hold. They then concluded that since there was no contact with the Child, the homestudy could proceed. The Board heard evidence that members of the Applicant foster mother’s family also have serious addiction issues. She has chosen to have limited contact with these family members but still retains some contact. The Board finds that the way the Applicants have dealt with extended family relationships would not negatively impact the Child.

Foster Father’s Friendships

77The homestudy scores the Applicant foster father as low in terms of outside friendships. The Applicant foster father has friends with whom he hunts. He has friendships with his adult former foster children but for the most part, he does not spend his time with friends. This is perceived as a negative and not a positive. The Board finds that there is room for subjectivity here. The Applicant foster father has been retired for six years, during which he has been the primary caregiver for any foster children, including the Child for the past several years. His allocation of his time to family, allows him to spend more time with the Child than if he were routinely with friends. Based on the evidence before the Board, the Applicant foster father’s role in the family and his focus on family is a positive factor and not a negative one. It is something that could have been “mitigated” by the homestudy worker by placing a focus on the Child, but it was not.

Foster Mother’s Time Outside the Home

78The Society had concerns about the Applicant foster mother spending time outside of the home. The Applicant foster mother works outside the home, and is involved in a number of extra-curricular activities. This was flagged as an issue by the Society in the homestudy. While the Applicant foster mother is out, the Applicant foster father is home, and spends time with the Child and is involved in the family routines. This arrangement has been ongoing for many years, since the Applicant foster father’s retirement, and has been in place while they were achieving positive outcomes with children and adolescents placed in their home, and had not drawn the Society’s attention in the past.

79The Applicant foster Mother is involved with the local [youth activity] in a leadership role. Another evening is spent on the marksmanship range, and two nights are taken by karate classes. She and sometimes she and the Applicant foster father take the children to Karate. The former foster daughter also goes to Karate with the Applicant foster mother when she goes to her adult class. The Applicants are involved in many community activities, and they involved the children living with them over the years in various activities available in their small community.

80The Society expressed concern about the Applicant’s testimony that the Child sometimes accompanies the Applicant foster mother to the marksmanship range, and indicated it would need to look further into that particular issue. Her testimony was that the children would be left in the waiting area with the [others].

81The Board did not hear evidence to suggest that the Applicant foster mother was out of the home too often or that she was not an active participant in family life. To the contrary, the family’s involvement in Karate is a family-oriented event; the family eats meals together which are prepared by the Applicant foster father and the Applicant foster mother is involved in bed time routines. The Society’s concern in this regard is not founded.

Applicants’ Relationship

82The relationship between the Applicants was seen as negative by the Society in the homestudy because the Applicant foster mother was considered domineering and controlling. The Applicant foster father is more easy going. The Board heard direct evidence about the relationship between the Applicants that satisfied the Board that they have a long-standing, loving, balanced relationship. They are quite different but have worked out a way of relating that works for them and their family. They have disagreed about things like lending money to the Applicant foster mother’s family but have resolved any differences. There was no evidence from the Applicants, their former foster daughters or the workers directly involved with them on an ongoing basis to suggest that the relationship was anything other than positive or that it would impede their ability to care for the Child and continue to meet his needs.

The Applicants’ religion

83The Society did not directly cite the Applicants’ religion as a basis for refusing the adoption. They did however raise concerns related to a particular belief of the church the Applicants attend. The Applicants attend church but not on a regular basis. They are members of a religion that does not accept homosexuality. The Society questioned whether they would be able to cope with an adopted child, should he be gay. The issue stems from an off-hand comment made by the Applicant foster father to the homestudy worker about his adopted sister who is gay. The Applicant foster father’s response to a question from the Board about how he would react if the Child were gay was that it didn’t matter. He loves the Child and would not treat him any differently. Both Applicants testified that their rule for any child, regardless of sexual orientation, would be that they not sleep in the same room when visiting home unless married. The gay partner would be welcome in the home.

84The Applicant foster mother distinguished between the beliefs of her religion and her own beliefs and experiences. She self-identified as bi-sexual. This is significant because the Applicant foster father is aware of and accepts her orientation. Further, with reference to her own experience, the Applicant foster mother recognized that the Child would make his own, independent way in terms of lifestyle, sexual orientation, and religion. This was not an issue that was explored by the Society with the Applicants.

85It appears to the Board that the Applicants do not adhere rigidly to all of the formal teachings of their chosen religion. The Applicants have satisfied the Board that they will love and accept the Child regardless of his sexual orientation. The Applicants are not naive or rigid about issues surrounding sexual orientation and religion.

Parenting/Incident with former foster child

86The Society brought forth one incident from the past when the Applicant foster father swore at a foster child, and told her words to the effect that if she did not like it in the foster home, she could get the f… out of the house. The Applicants both acknowledge that the comment was inappropriate. The Resource Worker explained that this adolescent girl had many difficulties, had been in several foster homes, and that she had provoked each placement into a placement breakdown. The Resource Worker explained that the girl had been engaging in constant disruptive and defiant behaviour, including theft in the foster home, sexual acting out, and the use of drugs and alcohol. This incident occurred in 2006, and the Resource Worker has not seen any other such incident in the Applicants’ foster home since that one incident.

87The Board is satisfied that this was an isolated incident. The Applicants have had numerous adolescents in their home over the years with challenging behaviours. This was not contested by the Society. That there was only one such incident is indicative of the patience and resolve of the Applicants in their numerous placements. There was no evidence of any negative discipline techniques or reactions to the Child. The Applicants’ former foster daughters who are now part of their family did not describe any such incidents and spoke positively and lovingly about the Applicant foster father who remains an integral part of their lives.

CONCLUSION

88The Society’s concerns about the Applicants are either unfounded or are not as significant as made out by the Society. The Applicants have met and will continue to meet the Child’s needs, including special needs. The Child has known only one family: that of the Applicants and in the interests of continuity of care, he should remain in that home, with the Applicants.

89The action that is in the best interests of the Child is that he be placed for adoption with the Applicants.

ORDER

90On January 18, 2013, the Board rescinded the decision of the Society to refuse the application of the Applicants to adopt the Child and ordered that the Child be placed for adoption with the Applicants.

CONFIDENTIALITY ORDER

91Parties 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.