CB v. Children's Aid Society of Haldimand and Norfolk, 2018 CFSRB 24

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

CB Applicant

-and-

CHILDREN’S AID SOCIETY of HALDIMAND and NORFOLK Respondent

-and-

TG Party

DECISION

Adjudicator: Gail Gonda, Theresa Hughes, Marisha Roman Date: July 17, 2018 Citation: 2018 CFSRB 24 Indexed as: CB v Children's Aid Society of Haldimand and Norfolk (s.179 CYFSA)

APPEARANCES

CB, Applicant Self-represented

Children’s Aid Society of Haldimand and Norfolk, Respondent Lindsay Edwards, Counsel

TG, Party Nigel Smith, Counsel

Introduction

1This is an application filed on April 30, 2018 under section 144 of the Child and Family Services Act, RSO 1990, c. C.11 and proceeding under section 192 of the Child Youth and Family Services Act, 2017, SO 2017 c.14, Sched 1, (the “Act”).

2The Applicant seeks a review of the decision of the Children’s Aid Society of Haldimand and Norfolk (the “Respondent”) to refuse her application to adopt JV, born on August 29, 2012, and SV, born on March 25, 2014, (the “Children”).

3The issue before the Child and Family Services Review Board (the “CFSRB”) is whether the decision of the Respondent is to be confirmed or rescinded after consideration of the best interests of the Children.

4The application was heard on June 26, 27, and 28 and July 5, 2018.

5The CFSRB issued an order on July 6, 2018 confirming the Respondent’s decision. These are our reasons for that decision.

DECISION

6The Children's best interests are served by remaining in the current placement which provides them with a stable home environment and routine in the care of someone they identify as their parent. They also have consistent and frequent connection to their paternal family. The Children are flourishing. To grant the Application would create a sense of loss for JV and SV, two very young girls who have already lived through and recovered from significant losses in their lives. Therefore, the CFSRB confirms the Respondent's decision to refuse the Applicant's application to adopt the Children.

Preliminary Issue

Addition of TG as a Party

7Prior to the hearing, TG, the Children’s current kinship/foster caregiver, requested that the CFSRB add her as a separate party to the proceeding. The Respondent expressed support for this request.

8The Children’s placement with TG is the Respondent’s permanency plan for them and is supported by the Children's paternal family.

9TG’s position in seeking separate party status was to provide testimony about her experiences as a kin caregiver/foster parent for the Children since July 17, 2017 and her perspective on what she understands to be the needs and best interests of the Children.

10The Applicant did not attend the pre-hearing to provide her response to this request.

11Given TG’s testimony would provide additional direct observations of the Children, the CFSRB granted the request and added TG as a party pursuant to section 192(10) of the Act and Rule 26.1(d) of the CFSRB’s Rules of Procedure.

the law

The CFSRB’s Requirements under the CYFSA

12In this application the CFSRB must determine if the Respondent’s decision to refuse the Applicant’s application to adopt the Children is in their best interests.

13To make that decision the CFSRB must consider the over-arching considerations set out in the Preamble and section 1 of the Act, as well as the enumerated factors in section 179(2).

14The CFSRB is specifically required under section 179(2)(a) to consider the “child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained”.

15Due to the young age of the Children, we did not hear direct evidence from them or a legal representative for them regarding their views and wishes. We heard evidence from the Respondent’s witnesses regarding the Children’s wishes as expressed to others, including staff members of the Respondent and members of the Children’s paternal family, and also from TG.

16In addition to the requirements of section 179(2)(a), the Act directs that the CFSRB consider the enumerated best interest factors in section 179(2)(c). In this application, we found that the relevant statutory factors in issue were the following:

a. The [Children’s] physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;

b. The importance of the [Children’s] development of a positive relationship with a parent and a secure place as a member of a family;

c. The [Children’s] relationships and emotional ties to a parent, sibling, relative, other member of the [Children’s] extended family or member of the [Children’s] community; and

d. The importance of continuity in the [Children’s] care and the possible effect on the [Children] of disruption of that continuity.

background

The Children

17JV and SV became Crown wards (now referred to in the Act as children in extended society care) without access for either parent on January 9, 2017. The Children’s biological mother appealed the court order. The order was confirmed on January 30, 2018.

18We heard from all parties that the Children are close with each other and also active and busy. JV is in senior kindergarten and SV is in daycare.

19The Children’s parents experienced difficulties that affected their ability to care for their family. This situation became acute when JV was less than two years old and when the Children’s mother was pregnant with SV. The Respondent opened an investigation in response to a referral at the time the Children’s mother gave birth to SV.

20After their apprehension, the Children lived briefly in two foster placements before a paternal cousin, MV and her husband, JV, were approved by the Respondent for a kinship placement on September 8, 2015. At the outset of this placement, MV and cousin JV informed the Respondent that they could not provide a permanent placement for the Children. They remained in MV and cousin JV’s home until July 17, 2017, when they moved in with TG.

The Applicant

21The Applicant is the Children’s maternal aunt. Their mother is her youngest half-sister. She lives in the same town as the Children's paternal grandparents, and has raised two adult children. Both of her children participated as witnesses to show their support for their mother’s plan to adopt the Children.

22During her testimony, the Applicant described some of her early-life challenges, including being a child-in-care with the Respondent. She demonstrated the resilience of her character by creating a life for her and her children that is nurturing and full of love and mutual support, a fact that her children spoke to during their testimony. She has regular contact with her family, including her parents and her two half-sisters. She volunteers to help her elderly neighbours and enjoys caring for her three dogs and three cats.

23The Applicant was contacted by the Respondent in December 2016 about being a potential adoption placement for the Children. The Applicant confirmed her interest in pursuing an adoption placement application in January 2017.

24The Applicant’s Structured Analysis Family Evaluation (SAFE) Home Study for adoption was initiated in March 2017 and approved on June 13, 2018.

25The Applicant acknowledged that she had no prior relationship with the Children before meeting them in March 2018. She recalled that, before March 2018, her connection with JV was through her contact with the Children’s biological mother. She also recalled accompanying the Children’s biological mother to an access visit with the Children. Following that, the Applicant recalled attending a court proceeding with the Children’s biological mother relating to the Respondent’s wardship application.

26The Applicant's first direct contact with both Children was in March 2018 when they had a visit at a sugar bush with TG and the Children's Adoption Worker, KA. The Applicant and the Children visited a second time in early April, 2018, again with KA and TG. They had a further videoconference conversation on June 17, 2018.

The Kin Caregiver/Foster Parent, TG

27TG lives in the same region as the Children's paternal grandparents, and works as a children’s sports coach. She has been involved in sport since she was a child.

28TG is close with her own family, consisting of her parents, three siblings and their children. In addition to the Children, she cares for a cat and a dog in her home. She is not a parent.

29TG originally met the Children in June 2016 after the Respondent approved her SAFE Home Study in April 2016. At the time, the Respondent had identified TG and her now ex-husband as the primary permanency plan for the Children.

30Their contact with the Children began in June 2016 and progressed to overnight visits through the early summer. When TG and her husband separated in August 2016, the Respondent stopped the process for their adoption application as a couple. TG and her husband are now divorced.

31During the year after January 2017, while the Crown wardship order was under appeal, the Respondent could not proceed with permanency planning for the Children.

32The Respondent approached TG in June 2017 to let her know that the Children had not been adopted and that they needed to move to a new placement. Given her pre-existing relationship with the Children, the Respondent asked TG to consider being a kin caregiver/foster placement for the Children. She agreed and the Children moved to her home on July 17, 2017, where they remain to the current day.

33TG’s SAFE Home Study for kinship care was approved on October 31, 2017. After the Crown wardship order was finalized in January 2018, TG presented her interest in adopting the Children and the Respondent updated TG`s SAFE Home Study for adoption, starting on April 20, 2018. It was approved on June 5, 2018.

The Positions of the Parties

The Applicant

34The Applicant is motivated to adopt the Children to ensure that they are placed with biological family. She understands how the Children feel as she was a child-in-care with the Respondent for two years when she was a teenager. She does not want the Children placed with a stranger.

35The Applicant emphasized that she has no limitations on her time and is able to provide focused care for the Children and support their schooling and other activities. She lives in a house on a quiet street near to parks and schools.

36The evidence clearly established the Applicant's nurturing character and her enjoyment of being a parent.

37The Applicant acknowledged that, prior to meeting the Children in March 2018, she did not have a relationship with them. She further acknowledged that, if the Children were placed with her, it would mean a change in their lives, but she believed that, over time, they would adjust.

The Respondent and TG

38Placement with TG was the Respondent’s permanency plan for the Children in June 2016 when she and her then-husband applied. Placement with TG as a single person is the Respondent's permanency plan for the Children now and this plan is supported by the Children's paternal family.

39The Respondent and TG believe that the current placement has been successful in creating a stable and nurturing home for the Children that maintains their connection with their paternal biological family. A move would disrupt this stability and create a sense of loss in the Children with a risk that they would suffer emotionally.

40The Respondent also raised the Applicant’s and her family’s history with the Respondent and delay of the completion of the Applicant's SAFE Home Study. While we heard evidence about these issues, in the end, we have concluded that these issues are not relevant to assessing the Children’s best interests.

analysis

The Children’s Views and Wishes

41Although the evidence about the Children’s views and wishes was provided through the observations of others, we find that both Children identify TG as their parent and TG’s house as their home.

42MV, the paternal cousin and former kin caregiver for the Children, observed that, in mid-2016 after meeting TG and progressing to overnight visits with her, the Children, especially JV, expressed enthusiasm about visiting with TG. MV stated that JV frequently requested that MV contact TG to arrange for overnight visits outside of the scheduled visits established through the Respondent.

43KV, the Children's paternal grandmother, testified that she and both Children have a close relationship and that she and JV have a special and trusting bond. This bond developed through consistent contact between them that started prior to the Children living with MV. Beginning in or about May 2015, KV and other members of the paternal family visited the Children during the biological father’s access visits. Once the Children moved in with MV, they visited with the paternal grandparents 3 and 4 times a month, including over weekends.

44KV observed that JV’s transition to living with TG was “easy”. We heard that the paternal side of the family, including KV, her husband, her daughter and her daughter’s son, the Children’s half-sister, MV and her spouse and son participated in moving the Children to TG’s house.

45The Children wanted to begin the move earlier in the day than was planned and, on arrival at TG’s house, the Children showed the family members their bedroom, toys and furniture and described TG’s house as their new home.

46The most detailed evidence we have of the views and wishes of the Children was provided by KS, the Respondent’s Permanency Worker for the Children since October 26, 2015. She described a 3-5-7 exercise that she conducted with the Children on March 27, 2018, days after their first meeting with the Applicant. This exercise is “a model that focuses on supporting children, youth and families towards permanency.”

47KS used the 3-5-7 exercise to gain understanding of the impact of the Children’s first meeting with the Applicant and their emotional state in relation to what they understood about their permanency planning.

48KS noted that SV “participated marginally as was age-appropriate”, but that JV focused and engaged in the exercise.

49Through the activity, the Children were asked to draw pictures of their house and identify who lived there. Both Children identified TG as “mommy”. JV was able to complete more of the exercise. She glued paper figures to her drawing of a house and identified them as TG, herself, SV and a cat and dog. She attached other paper figures and identified that they were members of her extended family. When asked if the Applicant could be one of the figures that JV identified as an aunt, JV replied that “there was no one else in her family”, that “we don’t have any more room on our page” and that “she has just enough people in her house.” She later agreed to add the figure of the Applicant to her drawing.

50KS observed that, during the visit, both Children “identified they are happy and like their room and love their mommy [TG].”

The Children’s Physical, Mental and Emotional Needs

51The Children’s early life experiences, including their removal from their parents’ care and the frequency of their moves between caregivers, continue to impact their current lives. While they have made significant gains through the support of their various caregivers, they have lived with some challenges, in particular with their emotional health. Both Children also have physical health issues that require attention and these conditions will continue into the future.

52We heard testimony from MV, KV, KA, the Children’s worker for the Respondent, who was assigned to the Children from the time they came into care in December 2014, and TG. We also heard from the Applicant, her adult children, JC and CC, and her younger sister, TB.

53According to MV, when the Children entered her care, they expressed their emotional trauma through their behaviour. JV, in particular, experienced difficulty in regulating her behaviour, especially with food, suffered night terrors and was unable to socialize with other children. JV was also diagnosed with minor speech delays.

54MV worked closely with JV to address her socialization needs and her diagnosed speech delays. JV made significant progress through MV’s commitment to her speech therapy and, in 2016, JV was able to register for kindergarten.

55We heard that, while both JV and SV flourished under the care of MV and her husband, they, particularly JV, continued to struggle with their emotional self-regulation. KV shared that, at the end of the Children’s visits with her, JV frequently asked KV if she could live with her and became upset when they left their grandmother’s house. In between visits, JV would call KV to be comforted.

56KV observed that JV’s emotional state has stabilized since living with TG and she transitions between TG's home and KV’s house without getting upset.

57KA, the Children’s worker, testified that consistent access to their extended paternal family since September 2015 has supported the Children in their emotional stability and development. And, while the paternal family cannot provide a permanent placement for the Children, TG’s ongoing, positive relationship with the paternal family will ensure that this connection to family will continue for the Children.

58While their emotional health was a priority concern when they were younger, the Children have ongoing physical health needs. In addition to JV’s continuing need for support for her speech delays, since after being placed with TG, she has required dental surgery, including root canals. SV has medical issues relating to her physical development and requires orthotics and physiotherapy as well as physical activity.

59We heard that TG has been proactive in seeking professional speech therapy support for JV and has advocated for her access to support in school. SV has been examined by medical professionals in relation to her biomechanical issues. As a professional sports coach for children, TG has a demonstrated understanding of coaching children in physical activities. She has registered them in swimming, gymnastics and dance classes.

60TG has adapted her home to create a supportive environment for the Children, including providing a bedroom large enough for them to share at this time, the availability of a third bedroom for when the Children choose to have separate rooms, and the creation of separate play and reading areas.

61TG described an extensive network, including friends, her own family and the Children's paternal family, with whom she is in regular contact as support for her to respond to the Children's ongoing emotional and physical needs.

62We heard evidence that strongly suggests the continued emotional vulnerability of the Children. Following the two face-to-face visits between the Applicant and the Children in March and April 2018, JV suffered night terrors and SV wet her bed -- behaviours that had not been present since their placement with MV.

63The Children have documented emotional and physical needs that require continuing medical, dental, speech and physical therapy treatment as well as school support and after-school activities. TG has proactively advocated for and sought out services and demonstrated her ongoing ability to meet those needs since July 2017. The Applicant did not provide evidence to establish her understanding of the Children`s emotional and physical needs or how she would be able to meet them. The Applicant acknowledged that, after 2 visits and a video-conference call, she does not know the Children and, consequently, their emotional and physical needs, well.

64A placement with the Applicant would require the Children to adjust to significant disruption, including in their emotional attachment to TG and others as well as disruption of their current health care providers and program. The disruption and the question marks associated in putting into place another support network present risks to the Children's best interests.

The Children’s development of a positive relationship with a parent and a secure place as a member of a family

65Closely related to managing the Children’s current emotional needs and vulnerabilities is their relationship with someone they perceive as a parent and their feeling of security within a family.

66We heard testimony about the parties' understanding of the importance of family relationships in general and to these Children, specifically, and how these relationships can foster a sense of security in these Children. The Respondent's workers described their observations of the interactions between the Children and the Applicant and TG and the Applicant’s and TG’s relationships with their respective families.

67The Children have known TG for more than two years. The evidence confirms that JV quickly developed a bond with TG and expressed desire for more contact with her during summer 2016. Both MV and KV testified that they had not observed a connection like this between JV and another adult before and this connection has been sustained for more than two years.

68The Children call TG ‘mommy’ as well as by her first name. During the 3-5-7 exercise with KS on March 27, 2018, both girls identified TG as ‘mommy’ and TG's house as their home.

69Although the Applicant committed to the application process for her to be an adoption placement for the Children in January 2017, the Applicant acknowledged that her delay in completing police checks for herself and her son contributed to her not meeting the Children until March 2018.

70The Applicant testified that her visits in March and early April were successful. KA and TG agreed with this assessment. The Applicant believes that, as biological family, there is an inherent bond between her and the Children.

71The Applicant clearly understands what is required to be a successful parent, having raised two children who are thriving as adults. However, the Children have identified TG as their parent and her house as their home. A placement with the Applicant would necessitate further change and disruption of a stable environment for the Children. They would have to move to an unknown environment. They would have to carry the burden of developing a relationship with a new adult. And, it would also result in the dissolution of a relationship with TG, whom they currently identify as their parent.

The Children’s relationship to a parent, sibling, relative and other member of the Children’s extended family

72That the Children were made Crown wards without access presents a challenge to them to develop and maintain relationships with both the families of their biological parents. Both TG and the Applicant testified about their respective commitments to support the Children in their connection to extended family.

73The relationship between their extended paternal family and the Children has existed since early 2015 and is strong and committed.

74Since the Children moved in with TG, the family regularly visit at each other’s houses, have dinners and special occasions together, play in the park and go to movies. We heard that the extended paternal family is a key ingredient of TG’s support network and they support her through visits to her house, repairs and minor work around her house and by babysitting the Children.

75We also heard that TG is close to her own family and regularly visits her parents and spends time with her siblings at the family cottage.

76In their time with TG, the Children have built relationships with two extended families. These connections were reflected in the March 27, 2018 3-5-7 exercise with KS. In addition to herself, SV, TG and the cat and dog, JV identified numerous aunts, uncles, grandparents from both the paternal biological family and TG’s family as members of her family.

77The Applicant initially took the position that the amount of contact between the Children and the extended paternal family is more than required. If the Children were to live with her, her plan would be to limit the Children’s contact with the paternal family to once every six to eight weeks from the current pattern of weekly to every two weeks. The Applicant later agreed that she would revisit this conclusion and that more contact between the families and with TG was possible in future. However, she maintained that, if the Children were placed with her, there would need to be sufficient time for them to bond without interruption of other family members. She believes that, over time, the Children would adjust to this change.

78The Applicant's family is also close and expressed how important it is that the Children also know their maternal extended family. We note, however, that the Applicant's contact with her younger sister and parents is primarily by phone.

79TG testified that, having now met the Applicant, future contact between the Children and the Applicant was possible if the Children agreed.

80With TG, the Children connect regularly and directly with two extended family groups – the paternal family and TG’s family. While a placement with the Applicant would introduce them to their maternal extended family, which is desirable, it would potentially disrupt and certainly reduce access to the close family relationships that they have enjoyed since 2015. This change to what they know as the established pattern of their family relationships would look and feel to the Children like a loss.

Continuity of care for the Children

81Over the past three and a half years, the Children have experienced significant loss and change: the loss of their parents’ care as well as three moves from caregivers. Each of these major changes has required the Children to do the work to adjust to a new environment.

82The Children have known TG since June 2016 and have lived with her since July 2017. TG described the daily routine that she and the Children have followed for the last year, starting with getting up in the morning, going to school or daycare, after-school or daycare activities, and activities with the Children’s paternal family and with TG’s own family on weekends and special occasions.

83Apart from TG, the Children have enjoyed regular contact with their paternal family for three years, including the almost two years they were in MV and cousin JV’s care.

84KA and KS described the Children's interaction with TG as loving and affectionate.

85In the workers' visits, particularly after meeting the Applicant in March 2018, the Children questioned whether further change will happen to them. KS testified that JV’s reaction to the 3-5-7 exercise and unwillingness to include the Applicant in her drawing demonstrates that she understands that there may be changes to her family and that she does not see this as positive. The Applicant testified that within thirty minutes of their first meeting she and JV were “twirling and hugging”. Her belief is that there is an inherent connection between her and the Children and that, if placed with her, the Children will adapt to their caregiver change over time.

86From the Children's comments to KS, they sense that meeting the Applicant will mean more change in their lives, which they do not see as positive. A move from TG would mean more disruption in their lives after a year of stable continuity with a caregiver and close to 3 years with their paternal extended family.

Confirming the decision of the Respondent

87In considering the relevant best interests of the Children, we find that their current placement affords them the environment and supports they need to address their emotional and physical health requirements. They have forged relationships with two extended families and they live now with a caregiver whom they identify as their mother and whose house they know to be their home.

88On the basis of the testimony by both the Applicant and TG, the opportunity exists for the Children to build on the contact they have with the Applicant and other members of their maternal family in future.

89A placement with the Applicant would not only disrupt the emotional bond they have with TG and with the extended families with whom they have established bonds, it would also disrupt the elements of what the Children know for their routines, their schools, their friends, and their family life. The Children would have to bear the burden of these changes.

order

90As stated in the Order issued July 6, 2018:

Having heard the evidence and the submissions of the parties, the CFSRB confirms the Respondent's decision to refuse the Applicant's application to adopt the Children.

confidentiality order

91Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions or any other documents or information provided or used in this Application with anyone, including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.