CHILD AND FAMILY SERVICES REVIEW BOARD
D.R. and A.R. v. CHILDREN’S AID SOCIETY OF ALGOMA
REASONS FOR DECISION
Date: October 7, 2016
Citation: 2016 CFSRB 46
Related to 2016 CFSRB 39
Indexed as: D.R. & A.R. v. Children’s Aid Society of Algoma (CFSA s.144)
Introduction
1This is an application made under s. 144 of the Child and Family Services Act, R.S.O. 1990, c.C11, as amended, (the “CFSA”). The Applicants applied to the Child and Family Services Review Board (the Board) for a review of the Respondent Society’s refusal of their application to adopt [ ] born [date] (the “Child”).
2The Applicants had acted as foster parents to the Child from [date] to [date], when she was placed in temporary, respite foster care. While she was in the respite foster care setting, the Child’s feeding schedule was modified on [date] by a physician specializing in the care of infants who have eating difficulties and are failing to thrive.
3On [date], after meeting with the specialist and trying to persuade her to change her recommendations, Applicant A sent an email to several people at the Respondent Society, copying a Social Worker and a specialist treating the Child, telling them that she was not willing to take the Child back into her care, given her concerns about the amended feeding schedule. She later met with the Respondent Society that day and confirmed her position.
4As a result, the Child then spent a few more weeks in temporary foster homes before being placed in her current long term foster home on [date], with a family that seeks to adopt her and where she has since remained.
5The Applicants requested that the Society consider placing the Child in their home with a view to adopting her on [date]. The Society refused their request on [date]. The Applicants seek a review of that decision.
6A hearing into this matter was held on July 28 and 29, August 2 and 3, and September 8, 2016.
7During the hearing, the Board heard from a number of witnesses on behalf of the Respondent Society. Witnesses A, B, C and D are employees of the Respondent Society who interacted with the Applicants and the Child. Witnesses E, F and G were foster mothers who considered providing, or actually provided, respite foster care services to the Child. Witness H is one of the current foster parents who are presently caring for the Child and who wish to be considered as adoptive parents for the Child. Witnesses I, J, K, L, M and N are local social service and medical care providers who have interacted with the Applicants and the Child while the latter was being fostered by the Applicants. Finally, the Board heard from Witnesses O, P and Q, who are medical specialists who treated the Child for issues relating to failure to thrive and infant psychiatry while she was being fostered by the Applicants and, subsequently, while she has been in the care of others. The Respondent Society led evidence from a total of 17 witnesses.
8The Applicants both gave evidence in support of their application.
9On September 15, 2016, the Board released the following decision:
Having considered the best interests of the Child, the decision of the respondent society to refuse to place the Child for adoption with the applicants is confirmed under subsection 144(11) of the Child and Family Services Act (the “Act).
10The September 15, 2016 decision also indicated that reasons for the decision would follow within thirty days of the last day of hearing. The reasons for the Board’s decision follow.
the law
11The relevant sections of the CFSA are set out below:
s. 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:
The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child’s physical, mental and emotional level of development.
The child’s cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
The child’s relationships by blood or through an adoption order.
The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
The child’s views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
Any other relevant circumstance.
s. 144(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.
the facts
12The Applicants have [ ] biological children, who range in age between [ ] and [ ] years and are home schooled by their mother, Applicant A. Applicant B works outside the home in the [ ] field. Applicant A is a [ ] who has worked in a number of different settings in her field.
13The parties agree that when the Child was initially fostered by Applicants A and B, she arrived in their home with a number of serious medical conditions and was described as a medically fragile child. She had neck and head issues [ ], was underweight and had difficulties with eating (failure to thrive).
14The parties also agree that the Applicants were very active in their care of the Child, attending numerous medical, therapeutic and social work appointments, some of which required travel to other cities and included medical procedures and meetings with many medical specialists. This intensive work was further complicated by the Applicants’ busy family life, Applicant A’s [ ] and the birth of their [ ] biological child during the material time.
15There is also no dispute between the parties that the Child’s neck and head issues corrected themselves to the extent possible with medical treatment and with the care provided to her by the Applicants.
16During the time that the Child was in the Applicants’ care, her failure to thrive diagnosis and her associated eating issues continued to be a major concern for everyone involved with her. As a result, during the year that the Child was in the Applicants’ care as a foster child, she was at times fed through an NG (nasogastric) tube and, subsequently, a G (gastronomy) tube.
17The associated difficulties relating to these methods of feeding the Child required significant time and effort on the part of the Applicants. The Respondent Society provided some support in the form of funding nursing assistance in the Applicants’ home overnight on occasion.
18At the same time, the Applicants, with the assistance of the Respondent Society, sought treatment for the Child for a number of behaviours reported by the Applicants such as self-harming and dissociation. Possible mental health issues such as depression and attachment disorder were also explored by the team of people caring for the Child as a result of reports by Applicant A of concerning behaviour to the infant psychiatry specialist.
19The Child had an extensive medical team following her progress and monitoring her many health conditions, many of whom continued to treat her after she left the Applicants’ foster home.
20The Applicants say the Child was an integral part of their family and their broader community of extended family and friends. They saw no distinction between her and their biological children.
21Throughout the year that the Applicants had been caring for the Child, the issue of respite care was discussed intermittently. The evidence of Applicant A was that the support she felt she needed was help within her own home in the form of services such as the overnight nursing assistance. She believed that, given the Child’s many medical needs, that type of respite was best for all concerned. She felt that the Child would suffer medical or other setbacks if she was provided inconsistent care during a respite stay.
22For its part, the Society continued to suggest respite care in accordance with its usual practice which involved the Child being placed with another approved foster family, preferably one that had previously cared for a child with similar medical needs or who was familiar with G-tube feeding, for a short period of time to allow the Applicants a period of respite.
23While there is some disagreement as to whether Applicant A co-operated with the Society’s efforts to arrange respite care or whether she actively sought to dissuade potential respite care providers from taking on the assignment by amplifying and exaggerating the Child’s needs and potential medical complications, a finding on that issue is not necessary as it is not relevant to the issues the Board is tasked with deciding in this application.
24Suffice it to say, by [date] a respite home had been identified and the Child was placed for a week in that home. This was the first such respite placement undertaken since the Child had been placed in the Applicants’ home.
25During her stay at the respite foster home, as the Child was vomiting during her nighttime G-tube feeding session, the respite foster mother sought advice from the Respondent Society, which in turn consulted the specialist from the failure to thrive clinic. On [date] the specialist recommended that rather than giving the Child [ ] bags of formula [ ] through the G-tube, she should be given [ ] bags [ ] during the overnight hours. Her opinion was that, along with the nutrition the Child was receiving at other times during the day, [ ] bags of formula was sufficient and would prevent vomiting.
26The respite foster mother followed the doctor’s advice and the evidence provided was that the Child ceased vomiting at night.
27On the day following the change in the feeding regimen, three of the Respondent Society’s employees received an email from Applicant A registering her concern about the change.
28On [date] the specialist told a supervisor at the Respondent Society that Applicant A had arrived at the hospital (located in another city) unannounced on [date] to ask that the medical advice be changed to revert back to the Child receiving [ ] bags of feed per night, something she declined to do.
29The specialist described the behaviour of Applicant A during their meeting and the comments she made. Specifically, she described Applicant A as being visibly upset, shaking and speaking rapidly. She said that Applicant A told her that she did not trust the foster parent or the Society. She believed that the Society was trying to save money by cutting back on the formula, that she was convinced that the Child would decompensate and that she would have to seek emergency medical treatment as soon as she picked her up from the respite foster home.
30The specialist found Applicant A’s reaction to what she viewed as a minor adjustment in the feeding regimen disproportionate and troubling. She was concerned that Applicant A would try and circumvent the medical advice she had given or otherwise medically compromise the Child by seeking out other treatment from practitioners not familiar with the Child’s extensive medical history.
31On the same day, the workers and supervisors at the Respondent Society received an email from Applicant A indicating that she would not be taking the Child back into her foster home because of the change in the feeding regimen. She went on to say that she felt that this was the appropriate course of action given the problems she felt would result from the changes.
32Applicant A met with Society staff on the [date]. She brought in the feeding supplies and some of the Child’s belongings to hand them over to the Society. Following a lengthy discussion with Society staff during which they tried to persuade her to reconsider her decision, the Respondent set about finding an alternate placement for the Child.
33The following day, Applicant A went to the home of the new temporary respite foster parents to drop off some more of the Child’s belongings. The parties disagree about her behaviour on that occasion. The Applicants say that she was simply making conversation, was invited into the home and behaved entirely appropriately.
34The temporary respite foster parent’s evidence was that she behaved aggressively, went into the [ ] without being asked to do so, picked up the Child, asked for [ ] and commented negatively on her weight and health.
35Following a report from this foster family on [date] and a further conversation with the failure to thrive specialist on [date] the Society decided not to work towards returning the Child to the Applicants’ foster home and, in fact, opened an investigation into the couple’s home to address concerns identified by the specialist. That investigation resulted in the concerns not being verified.
36Further difficulties arose for the Applicants in the following month. As a result of Applicant A contacting the Child’s biological mother to enquire about whether and when it might be possible to adopt the Child, the Applicants’ foster home was closed by the Respondent Society.
37The Child was made a Crown ward on [date].
38Since [date] the Child has been in a long term foster home with a set of foster parents that seek to have her placed with them with a view to adoption. The Respondent Society supports this option for the Child.
39The Society presented evidence from a number of witnesses that have followed the Child’s progress since mid-March. Without fail, the witnesses have painted a very positive picture of the Child’s health and development.
40The Board heard that the Child has been completely weaned off the G-tube which has been removed and now consumes all of her food orally. The failure to thrive specialist described her as active, stress free and having come out of her shell.
41One of the temporary respite foster mothers described her as inquisitive, happy and engaging with people in the home. The concerns about dissociative and self-harming behaviours are no longer being reported and the child psychiatrist finds the difference and developments remarkable. The Child is not receiving psychiatric care any longer.
42His evidence was that he did not originally understand the clinical picture as being described by Applicant A. In his view, the kind of behaviours being reported then, such as dissociative and self-harming conduct are more commonly seen in traumatized children rather than those who have experienced neglect such as the Child who is the subject of this application. The picture being described since the change in environment, he testified, is more in keeping with what he would expect to see in a child with this type of history.
43He testified that he is not suggesting that she was abused or neglected in the Applicants’ care. However, he is impressed with the amount and way that she has changed when she received a different kind of care
44His view, echoed by the failure to thrive specialist and the others involved in the care of the Child, is that he would not recommend that the Child be returned to the Applicants’ care. In his words and theirs, she is thriving both physically and mentally. The Respondent witnesses say she has bonded with her foster parents, enjoys and attends day care where she has made friends and is lively and happy and they would not recommend a change in her environment.
analysis
Credibility
45In assessing credibility, the Board has applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354:
(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken. [Emphasis added].
Section 144
46In FCY Services of Muskoka v. D.D., 2010 O.J. No.5085, the Divisional Court described the approach to considering a s. 144 application as follows (at paras 20-22 emphasis in the original):
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.
47The Board is required to make a substantive decision, in the best interests of the Child and, in doing so, is mandated to take into account any of the specifically enumerated best interest factors that are relevant.
48In the case at hand, the Board focussed on paragraphs 1, 2 and 7 of s.136(2) which are reproduced below:
The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs
The child’s physical, mental and emotional level of development.
The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
49It is clear that the Child has already had a significant amount of difficulties and dislocation in her short life and has had to undergo significant and difficult medical procedures. In the years ahead, she may well require additional medical and developmental interventions.
50Although the Applicants were able to seek out and follow through on medical treatments in the early part of the fostering arrangement, the Board finds that the Child would not be well served in this regard by a placement with the Applicants into the future.
51Of particular concern to the Board was the extreme reaction of Applicant A to what was correctly characterized by the treating as a minor adjustment to the Child’s feeding schedule.
52The Board also accepts as credible the account of the respite foster parents concerning the events of [date]. It is apparent that Applicant A was upset by the events leading to the recommendation of a change in the feeding regimen. She had already expressed her frustration, lack of trust and opinion of the trustworthiness of the Society to the specialist on [date]. The Board finds the description of her actions by the respite foster family consistent with her stated views about the potential harm to the Child that cutting back on the nighttime feed would cause.
53The refusal by Applicant A to accept treatment recommendations from the specialist, her conduct from [date] through to [date] during her interactions with the specialist and with staff from the Respondent Society and the respite foster family in their home were particularly troubling as they speak to a lack of openness to consider expert opinions and alternate views in determining the best or most appropriate care or treatment to meet any challenges the Child might face in the future relating to her physical, emotional and mental needs.
54The Board heard extensive evidence about the positive developments in the Child’s emotional, mental and physical development since the change in environment and the strongly held views of the physicians and specialists that have observed those developments first hand as part of their therapeutic relationship about where the Child should be placed.
55The Board concurs with the views expressed by the Child Psychiatrist in this regard and finds that removal of the Child from the environment in which she is currently thriving would not be in her best interest.
56The Board finds that continuity of the present environment is desirable given the salutary effect it has had on the Child.
57The strong recommendations of both specialists who most recently treated the Child are persuasive and given the documented improvements in the Child’s development, valid reason for the Board to concur that removing the Child at this juncture to place her with the applicants is not in her best interest.
Conclusion
58The Board acknowledges the heartfelt concern expressed by the Applicants for the welfare of the Child at the centre of this matter. It is clear to the Board that both Applicants, their extended family and broader community made great efforts on behalf of the Child.
59In arriving at its conclusion that the decision of the Respondent Society not to place the Child with the Applicants for adoption should be confirmed, the Board is persuaded by a number of considerations relating to the best interest test. As outlined above, the preponderance of evidence supports the Society’s decision to keep the Child in her current environment and militates against placing her in the Applicants’ home for adoption.
60The Board finds, therefore, upon consideration of all relevant best interest factors that the decision of the Respondent Society should be confirmed.
order
61On September 15, 2016, the Board made the following Order:
Having considered the best interests of the Child, the decision of the respondent society to refuse to place the Child for adoption with the applicants is confirmed under subsection 144(11) of the Child and Family Services Act (the “Act).
CONFIDENTIALITY ORDER
62Pursuant to Rules 30.1 and 30.2 of the Board's 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 media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board's proceedings, except with an order of the Court or the Board, as appropriate.
63The Board will permit the use of its decision and these reasons in any adoption proceedings involving the Child.
Jay Sengupta
_________________
Jay Sengupta
Presiding Board Member
Judy Finlay
_________________ Judy Finlay
Board Member
Heather Hunter
_________________ Heather Hunter
Board Member
Dated at Toronto, Ontario on the 7th day of October, 2016.