T.G. and P.P. v. Children’s Aid Society of the Counties of Stormont, Dundas and Glengarry, 2013 CFSRB 56

CHILD AND FAMILY SERVICES REVIEW BOARD

T.G. and P.P.

v.

Children’s Aid Society of the Counties of Stormont, Dundas and Glengarry

REASONS FOR DECISION

Date: November 14, 2013

Citation: 2013 CFSRB 56

Indexed as: T.G. and P.P. v. Children’s Aid Society of the Counties of Stormont, Dundas and Glengarry (CFSA s.144)

INTRODUCTION

1This is an application by T.G. and P.P. (the “Applicants”) under section 144(3) of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”) for a review of the decision of the Children’s Aid Society of the Counties of Stormont, Dundas and Glengarry (the “Society”) refusing their application to adopt [ ] (“the child”). The application was heard on October 7 and 8, 2013.

2The Applicants are seeking an order rescinding the decision of the Society.

They believe it is in the child’s best interests to be adopted by them because they are in a better position to provide for the child’s special needs and because they have an existing relationship with her dating from prior to her apprehension by the Society. Their plan is the one that was presented and supported by the biological mother.

3The Society believes the child should be placed with her biological half-sibling in the home of C.T. and D.T. (“Family T”). Their plan was presented and supported by the child’s biological father.

4On October 10, 2013, the Board rescinded the decision of the Society to refuse the application of the Applicants to adopt the child and ordered that the child be placed for adoption with the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. These are the reasons for that decision.

BACKGROUND

5The Child, born on [ ], remained in the care of her biological mother until she was apprehended by the Society when she was 10 months old; her mother had become overwhelmed and neglected the care of the child. The child has resided in the same foster home since that time.

6The court found L.M. to be the child’s father on July [ ], 2012. The child was made a ward of the Crown on the consent of both parents on January [ ], 2013.

7Immediately after the child’s apprehension, the mother indicated to her family and the Society that she wished the child to be cared for by the Applicants: her cousin once removed and her husband. Right from the child’s birth, the Applicants had indicated their desire and willingness to adopt the child should the mother not be able to care for her. The Applicants have a 4 year old biological son “C.”.

8The child’s father has 4 other children. The youngest, “E”, who is about one month older than the child, was adopted by Family T after having been placed with them at birth. Once L.M. was recognized as the father of the child, he put forward Family T as potential adoptive parents for the child.

9Both the Applicants and Family T applied to the Society to adopt the child. As the Applicants reside [a city (and province) outside of Ontario], they initially had a home study completed in that province and, once approved there in February of 2013, completed a SAFE adoption home assessment through the Society, and they were approved as adoptive parents for the child in April of 2013.

10Family T had previously been approved to adopt the child’s half-sister “E”. Once they applied to adopt the child in October of 2012, the Society completed a reapplication SAFE home study and they also were approved to adopt the child in April of 2013.

11On April 9, 2013, the Society convened a Permanency Planning Committee meeting. The summary of recommendations and decisions of that meeting state:

After much discussion, although the Committee agreed that there were positive aspects to each couple and both would make good adoptive parents, there was unanimous agreement among those present that a fundamental principal of this Agency is that siblings should be raised together. As such, the Committee recommended that [Family T] adopt [the child], to allow her to be raised with her half-sibling [“E”]. Should the adoption of [the child] by [Family T] not proceed, then the plan will be for [the Applicants] to adopt [the child].

12The Applicants applied to the Board for a review of that decision on April 17, 2013. The hearing was originally scheduled for May 22 and 23, 2013. On May 22, 2013, the Board heard that the child had started exhibiting some concerning behaviours such as head banging and, as a result, the Society wished to have the child assessed in order to have a clearer picture of her needs. The Applicants agreed to adjourn the hearing in order for this assessment to be performed. The assessment report of [the Doctor] was received at the end of July 2013 and will be discussed below.

ANALYSIS

13Pursuant to section 144(11) of the Act, the Board must decide what action is in the child’s best interests. In coming to its decision, the Board considered the following provisions under the Act:

1.(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.

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 importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

4. The child’s relationships by blood or through an adoption order.

14The Board must decide what is in the best interests of the child having regard to the considerations set out in section 136(2) of the Act. The sole issue before the Board is which placement is in the child’s best interests.

15On behalf of the Society, the Board heard testimony from the adoption worker, the two workers who performed the SAFE assessments on Family T and the Applicants as well as Mr. and Mrs. T themselves.

16On behalf of the Applicants, the Board heard the testimony of the biological mother’s community service worker, the maternal grandmother and the Applicants.

17The Society’s evidence is that the two competing plans, the Applicants’ and Family T’s, were equal in merits. The Society’s position was that the only factor that set them apart was the fact that Family T had previously adopted the child’s half-sibling and an adoption placement with Family T’s would permit the siblings to grow up together.

18While the Board agrees that having siblings maintain a relationship is one of the circumstances the Act directs the Board to take into consideration, it is not the only factor that must be considered. The Board found that the two competing plans were not equal and, after having considered other circumstances, determined that the placement that is in the child’s best interests is with the Applicants.

Developmental Assessment

19As stated above, when the Board originally attended to hear the application in May of 2013, the Society raised the fact that the child was recently presenting with problematic behaviours and wished to have her assessed to determine if she had any special needs and the appropriate level of care any such needs required.

20An assessment was completed in June and July, 2013 by [the Doctor] a Developmental Pediatric Neurologist at the [treatment centre]. [The Doctor’s] report dated July [ ], 2013 was received by the Society on July 22, 2013.

21In his report, [the Doctor] stated that the 2 year old child was referred because of a delay in language acquisition, such as babbling, the onset of word-based requesting, and, in general, milestones delay such as head support, sitting, etc. Additionally, the child exhibited head banging behaviours which were similar to behaviours exhibited by the biological mother in early life. There was as well a concern that the child had been exposed to drugs or alcohol in utero.

22The child’s overall developmental review revealed that she functioned at the following age equivalents.

a) Gross motor development: 18 to 19 months

b) Fine motor development: 15 to 17 months

c) Receptive language: 15 to 17 months

d) Expressive language: 13 to 14 months

e) Social skills: 15 to 17 months

f) Self-help skills: 20 to 30 months

23[The Doctor] stated that although the child demonstrated a few repetitive behaviours (history of spinning) as well as some self-injurious behaviours (head-banging), in addition to some weakness in social communication, including flexibility of facial expressions, she did not meet enough criteria for a predominant autism spectrum disorder diagnosis. [The Doctor] stated that the most appropriate and relevant diagnosis that characterizes the child’s development profile is that of Global Developmental Delay.

24He added that additionally, an area that will need to be monitored is the child’s attention span which is often impaired even relative to the child’s developmental level, in children who have been exposed to drugs or alcohol in utero.

25[The Doctor] recommended that the child should have speech and language therapy as well as occupational therapy. He also requisitioned blood tests to rule out any treatable or non-treatable causes of developmental delays, including a basic genetic microarray. He also referred the child to the genetics department based on the very subtle dysmorphic features and the history of possible tetragenic exposure to see if a genetics expert could shed some light on medical causes of the child’s developmental delay.

26[The Doctor] also recommended that, given the child’s relative strengths in self-help skills as well as imitative abilities, further social exposure to children would be most appropriate, particularly children her own age who are modelling appropriate speech and language skills. He recommended that future adoptive parents learn as much as they could from speech and occupational therapists in order to incorporate the strategies and techniques in the home.

27[The Doctor] provided an opinion that the child’s head-banging behaviours observed in the context of frustration will improve as her communicative ability improves. However, he also made a referral to a behaviour consultant.

Physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; physical, mental and emotional level of development

28From the developmental assessment the Board can easily conclude that the child has special needs that will require particular care to ensure her development is maximised.

29Of immediate concern is the child’s lack of expressive language development. [The Doctor’s] recommendations are very helpful in determining the appropriate care that will be required such as speech therapy, parental involvement in order to incorporate the strategies and techniques in the home and, very importantly, further social exposure to children her own age who are modelling appropriate speech and language skills. With regards to the developmental delay, [the Doctor] also made a recommendation that the child attend occupational therapy as well as a number of medical testing referrals.

30The Board heard evidence from the Applicants with regards to their awareness of these issues as well as their plan to address the problems. The Applicants are experienced in addressing speech problems at many levels. The Applicant mother herself suffered from a speech development problem that she had to surmount. Therefore, she is acutely aware of the type of care required for this issue but also has a high level of understanding and empathy for the struggle faced by the child as a result of this issue.

31As well, the Applicants’ son has been diagnosed with the same speech problem as his mother. As a result, the Applicants have educated themselves about the specific programs required for his care and have taken steps to address the problem such as transferring their son to a new daycare where speech therapy assessment and services are available on site. The Applicants also have the advantage of having a close friend that is a speech therapist and who has provided them with extra information, practical suggestions and guidance in addressing their son’s speech development at home.

32With regards to the specific needs of the child to maximise her speech development, the Applicants demonstrated a thorough awareness of the steps that will be required and have already taken steps to locate specific service providers available in their area, such as at the [ ] Hospital as well as daycare facility to maximize exposure to children who can model appropriate speech and language skills.

33The Applicant mother also has a lifelong experience with her sister who has both physical and mental disabilities as a result of cerebral palsy. The Applicant has participated in her sister’s care through the years and continues to do so. The Applicant father testified he has also been involved in assisting in his sister- in-law’s care.

34The Applicants are both employed full time and both have full benefits through their workplaces which is seen by the Board as a definite advantage considering the state funded services can be both delayed by long wait periods and limited in scope of service. The Applicants have clearly indicated their willingness and ability to fund any extra services not covered by government programs or their benefits.

35Both Applicants also testified that their respective employers allow flexibility in work schedule to accommodate medical or other appointments. As well, while she currently works outside the home, the Applicant mother testified that she is eligible for parental leave of 37 weeks once the child is placed with them. Also, the Applicant testified that while she enjoys working and believes it would be beneficial for the child to attend a daycare to develop her social and language skills as mentioned in [the Doctor’s] assessment report, if the care of the child required it, she was prepared to leave her employment and stay home to provide full time care for the child.

36In contrast, Family T appeared both less aware of the needs of the child and less prepared to address them. The father is employed but does not have any employment benefits, nor does the mother, who is not employed outside the home. This is clearly an issue when a child is known to have special needs that will require ongoing services. But, more than the financial barriers, the presentation of Family T to the Board about their plan to address the needs of the child gave rise to the finding that the Applicants were in a better position to address those needs.

37When asked about her understanding of [the Doctor’s] recommendations, all the mother testified was that she was more than willing to do all that needed to be done to get the child the attention she needs to develop properly. When asked about specific services that she envisioned, she only answered a very general “speech services”. Also, when asked, she indicated that she was not familiar with occupational therapy but that she had the internet and “could look it up”. She appeared to rely entirely on the Society to identify and set up services on her behalf; she presented as very passive in her planning for the child’s special needs care.

Relationship with a parent and a secure place as a member of a family; relationships by blood or through an adoption order.

38The Society believes the child should be placed with Family T so that she can grow up with her half-sibling.

39There is no question that sibling relationships are important and that it would benefit the child to know her half-sibling. However, the child has 3 more half-siblings that were not mentioned by the Society worker who performed the home study of Family T in her testimony, nor in her home study report. There is also no mention of these siblings in the minutes of the Society’s permanency planning committee.

40The older children do not live with Family T. Efforts to maintain and nurture the relationship between these siblings and “E” appear to have been nominal on their part. However, the Society appears to have been under the impression that the siblings had ongoing contact arranged by Family T, as this was mentioned by the adoption worker in her testimony. She testified that adoptive parents’ willingness to have openness is taken into account by the Society when evaluating their application to adopt. Yet, the Society does not appear to have enforced much contact between E. and her older sibling following her adoption by Family T.

41Throughout their testimony, while voicing a willingness to encourage openness and ongoing contact with “E’s” older siblings, the Board found that Family T have demonstrated minimal efforts to actually make this contact happen. Family T made excuses as to why the contact has been minimal by blaming the other caregivers for this contact to not take place.

42Family T’s plans with regards to ongoing contact with extended family are very general and vague in nature, again, stating that it is important without appearing to have really put their mind to the practicality of it. Also, it appears that they expect all participants in the openness arrangements to “come to them” for contact with the child not indicating a willingness to put much positive effort in the process but rather only a passive willingness to participate in it.

43In contrast, the Board was impressed with the Applicants’ willingness and commitment to drive themselves and the child to Ontario once a month to facilitate the ongoing access to the child’s biological family.

44Family contact is very important. The child has a strong relationship with her maternal grandmother and has regular contact with her biological mother and father. The Society actually stated in the Summary of recommendations and decisions of the permanency planning committee meeting of April 9, 2013 that “the child is very attached to her maternal grandmother”. As the child does not know either the Applicants or Family T, other than her biological parents, the maternal grandmother is the only family the child has a relationship with. It is very important that this relationship be preserved.

45The Society argues the child would continue to have contact with her maternal grandmother in the care of Family T. However, as stated above, Family T has not actively supported or ensured openness with “E’s” siblings. The Board is concerned that given Family T’s approach to date, neither the mother nor the father may actively support the child’s relationship with her grandmother. The maternal grandmother voiced this same concern during her testimony.

46In contrast, the Applicants already have an ongoing relationship with the maternal grandmother. She indicated that she speaks with the Applicants at least every other week on the phone, sometimes as often as a couple of times a week. The maternal grandmother has visited the Applicants in the past before she was limited in her ability to travel by illness. The Applicants have demonstrated a clear commitment to maintain the relationship between the maternal grandmother and the child.

47Being placed with the Applicants, the child will continue to solidify her relationship with her maternal grandmother, will maintain her relationship with her biological parents, and, it may also be that the child will be afforded more opportunity to develop a relationship with not only E. but also her other three older half-siblings.

CONCLUSION

48As stated earlier, the sole issue before the Board is which placement is in the child’s best interests. The Society presented that both plans had equal merits and that the fact that the child’s half-sibling resided with Family T was the reason why the Society decided to place the child with them for adoption; so the siblings could grow up together.

49The Board found that this was not the case. Despite both plans being “good” plans, the Board found that they were not equal in two important areas. The Board found the Applicants better equipped to address the child’s special needs and to maintain her existing family relationships.

50The Board found that growing up in the same household as her half-sibling “E” was no more important than the child’s ability to develop a relationship with her other 3 half-siblings and, that the Applicants presented as more able to facilitate the openness process. The Board also found that it was imperative for the Child to maintain her existing relationship with her maternal grandmother and found that the Applicants were also in a better position to achieve this goal.

51As was stated very eloquently by Counsel for the Society in her closing comments, it is evident that this Child is surrounded by people who love her; which unfortunately cannot be said for all children. This child has two good families who are devoted to her and want to raise her to adulthood as a member of their family. She is indeed lucky to have such people in her life.

52For all these reasons, on October 10, 2013, the Board made the following orders:

1. Rescinds the decision of the Society to refuse the application of the Applicants to adopt the Child; and,

2. Orders that the Child be placed for adoption with the Applicants.

CONFIDENTIALITY ORDER

53In accordance with Rules 30.1 and 30.2 of the Board Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings.