JC v Children’s Aid Society of London and Middlesex, 2019 CFSRB 12

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JC and KC Applicants

-and-

Children’s Aid Society of London and Middlesex Respondent

DECISION

Adjudicators: Catherine Bickley, Michele O’Connor, Judy Finlay Date: March 18, 2019 Citation: 2019 CFSRB 12 Indexed as: JC v Children’s Aid Society of London and Middlesex (CYFSA s.109)

APPEARANCES

JC and KC, Applicants David R. Nash, Counsel

Children’s Aid Society of London and Middlesex, Respondent Timothy G. Price, Counsel

Introduction

1This is an Application made under section 109 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”) and is a review of the proposed removal of DM, born October 6, 2016 ("DM" or the “Child”), from the home of his foster parents who are the Applicants in this matter.

2The Child and Family Services Review Board (“CFSRB”) must decide whether to confirm the proposal to remove the Child or direct the Society not to carry out the proposed removal in accordance with its determination of what is in the best interests of the Child.

3The position of the Applicants is that it is in DM’s best interests to be adopted by them. They are confident that the Child, who has been their foster child for the past 28 months, is bonded emotionally to them, to his half-sister, LM, who lives with them, to their two other children, and to their extended family.

4The Society proposes to place the Child with a kin family out of province and for LM to be adopted by the Applicants. By letter dated November 19, 2018, the Respondent confirmed to the Applicants its decision to move DM to live with members of his maternal family. The Applicants filed this Application on November 28, 2018. The Child has remained in the Applicants’ foster care pending the outcome of this proceeding

5A hearing was held on February 12, 13, 14 and 19, 2019.

6On February 28, 2019, the CFSRB released its order directing the Society not to carry out the proposed removal of DM from the Applicants' home.

7We have determined that it is in DM’s best interests to maintain the bond he has formed with the Applicants and to benefit from continuity in the same family with his half-sister. These are the reasons for that order.

THE LAW

8The relevant provisions of the Act are:

109(5) The Society having care of a child shall ensure that

(b) the wishes of any foster parent with whom the child has lived continuously for two years are taken into account in the society’s major decisions concerning the child.

109(8) A foster parent who receives notice [of a proposed removal] may, within 10 days after receiving the notice, apply to the Board (…) for a review of the proposed removal.

s.109(15) The Board shall, in accordance with its determination of which action is in the best interests of the child, confirm the proposal to remove the child or direct the society not to carry out the proposed removal, and shall give written reasons for its decision.

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

BACKGROUND

9The Child was apprehended at birth from his mother and placed with the Applicants when he was three days old. He is now almost 2½ years old.

10The Child and his half-sibling, LM, have the same biological father.

11LM was initially in a different foster home but has lived with the Applicants since April 6, 2017. She is now 3 years old.

12The Applicants are a dually approved foster home meaning that they would accept children who would be fostered only, as well as children who might be available for them to adopt.

13The Society’s original plan was to place DM out of province on a supervision order with his birth mother reconnecting with her extended family. Over time it became clear that was not an option.

14Between the Child's first visit with his birth mother's extended family in November of 2017 and his most recent visit in January 2019, they have had 5 visits amounting to approximately 20 days in total.

15On October 11, 2018, both DM and LM were found in need of protection and placed in the extended care of the Respondent society. The judge’s statutory findings include that neither child is a First Nations, Inuk or Metis child. The order is silent as to access except as between LM and DM if they are not living together. In terms of the two children, the judge concluded:

There was ample evidence from various witnesses that the children have a warm and loving relationship with each other. At the time of trial they continued to reside in the same foster home. I find that L and D each has a beneficial and meaningful relationship with the other.

His final order is silent as to access with the biological father and their respective birth mothers.

16Access between the children and their respective biological parents continued at the Society offices until their final visits in December 2018.

17It is undisputed that the Applicants have been interested in adopting both DM and LM since the children were placed with them, and that they have provided excellent care. It is also undisputed that the Society has been exploring a permanency plan with DM’s mother’s extended family since early in his placement.

ANALYSIS

18The test for CFSRB when reviewing a decision in an adoption refusal or removal from placement was established by the Divisional Court in Family Youth & Child Services of Muskoka v. DM and CM, 2010 ONSC 6018 (Muskoka) which provides a detailed analysis of the CFSRB’s mandate when making a decision in the best interests of a child.

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.

19The CFSRB 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. In this case the CFSRB considered all of the best interest factors and focussed on subparagraphs (ii), (iv) (v), (vi) and (vii) of s.74(3) in particular, which are reproduced below:

• the child’s physical, mental and emotional level of development

• the child’s cultural and linguistic heritage

• 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 and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community

• the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity

20More generally, the CFSRB was guided by the overall purposes of the Act, the paramount purpose of which is to promote the best interests, protection and wellbeing of children.

21It was clear in the hearing that the primary issue was whether the Society’s permanency plan for DM for placement with his maternal relations (the kin plan) should prevail over his attachment to his half-sister and the Applicants.

Expert Evidence

22Dr. Milton Blake testified, on consent, as an expert clinical psychologist specializing in child and family assessment and treatment, children’s emotional attachment, PTSD and psychological trauma.

23Dr. Blake was retained by the Applicants but was not permitted by the Society to meet any of the parties. He prepared the “Assessment of Probable Impact of Removal of Child, DM (DOB October 6, 2016) From Foster Family” dated December 12, 2018 which states:

Accordingly, the present assessment is limited to an analysis of the implications of removing the child from a foster family to whom his attachment has been established, and the probable impact of such a removal and placement with kin relatives.

24The Society argued that little weight should be given to Dr. Blake’s opinion. It relied on a December 2018 unreported decision of the Ontario Court of Justice in a case involving the Respondent Society in which the judge rejected the assessor’s evidence after a voir dire on the admissibility of the evidence. He was satisfied with the assessor’s qualifications and the relevance of his proposed evidence but excluded it at the “necessity” stage of the Mohan analysis as “unreliable” because of similar limitations to the expert opinion in this case.

25The Society workers all spoke to an observed "bond" between DM and the Applicants' family.

26The Director of Service said Society staff can make observations and formulate an opinion about bonding but could not do an attachment assessment. He agreed it was an important concept and the Society would probably ask someone like Dr. Blake if they felt an assessment was indicated.

The Society’s position is that we are not denying the bond between DM and the (Applicants) or DM and LM or starting between DM and the [kin family]. We did not feel a comprehensive assessment would add a value that would change our decision.

27The Respondent acknowledged that it frequently retains Dr. Blake as an expert witness.

28The CFSRB notes the limitations of Dr. Blake’s assessment due to restrictions on his access imposed by the Society. It is however the best evidence on the significant issue of DM’s attachment to the Applicants and his sibling, and the likely effects on the child of disrupting it. Consequently, we find it necessary and accept his expert opinion on these issues.

BEST INTERESTS

The child’s physical, mental and emotional level of development

29Dr. Blake’s testimony confirmed the prevailing view that to remove a child who is emotionally attached to a family after a certain point is likely to set the child back emotionally to a significant degree.

30In young children between 6 months and 3 years their brain structures are developing. That early attachment becomes consolidated over time and it is very easy for disruption to occur when the child does not experience a sense of security with an ongoing significant attachment figure.

31The evidence supports the conclusion that DM has met all of his developmental milestones to date which is generally the result of his physical, mental and emotional needs having been met in his early years.

32Disruption to his attachment relationships at this stage could induce trauma-like symptoms that will have an immediate effect on his well-being. If not managed well, this could have a serious long-term impact.

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 and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community

33These two criteria are inseparable and speak to the same thing in a child as young as DM, i.e. secure attachment and the role of primary and extended family.

34The evidence of the Applicants, and of the resource worker, JS, confirmed the Child’s current well-being and his significant relationships within this family.

35The resource worker participated in the various Case Conferences within the agency regarding permanency planning for DM. She relayed the facts but did not believe she had given her opinion in those meetings despite being the most familiar member of staff to this child and his relationships to and within this family. She was clearly uncomfortable being asked for her opinion at the hearing.

36In response to questions from Applicants' counsel the resource worker conceded that kinship was given priority over attachment and that early in the process the decision was made that the Child was going to the kin placement out of province. From that point on there was discussion but no change in the decision, even as his relationship with LM was deepening. She confirmed that no Society worker had observed DM with the kin family apart from the brief drop-ins by the child protection worker during the July 2018 visit in the kin family's home out of province.

37When questioned by the Panel, the resource worker agreed generally that siblings should be kept together when possible, and that these particular siblings should be together.

38In Dr. Blake’s opinion, a child in DM’s circumstances would not only have a significant attachment to the foster parents but also to LM and the older children in the home. The risk of the potentially undesirable consequences of separating him could be prevented by maintaining the foster placement as opposed to disrupting it.

39Dr. Blake said an assessment of the kin placement would not have been helpful because DM could not have developed a significant attachment with the family out of province based on the limited contact they have had with him.

40The Society suggested that the kin family would agree to an “open adoption” permitting access between DM and his foster family and siblings. Dr. Blake’s opinion of this plan was that it is “backwards’. Openness should not be with the family he’s already attached to. It should be with the kin where attachment has not yet happened.

41To ensure the best outcome if DM were placed with the kin family Dr. Blake said:

They would need to be loving and supportive and highly committed parents. Because of the possibility of trauma onset, they would need to be ‘trauma informed’. If his behaviour deteriorates they would need to know what to do. It is almost inevitable that he would have learning problems and difficulties regulating his emotions. They would have to be very tolerant, not judgmental, recognize what is going on, not imposing consequences or loss of privileges when he is not acting as they’d like owing to trauma. They have to be prepared for that possibility.

42Facts from the kin mother’s evidence were put to Dr. Blake, specifically that both she and her husband work outside the home and some of the care would fall to their children 16 and 20, and possibly the maternal grandmother. He highlighted the extreme importance of highly involved and supportive parents, a preference that one parent be at home with DM, and that they need to be prepared for the worst and respond in a trauma-informed manner. In his opinion, a parent working outside the home would interfere with that ability.

43Regarding the proposition that a child who has formed a healthy attachment by the age of two is capable of re-forming a healthy attachment with new primary caregivers, Dr. Blake accepted the statement as accurate but said it needs to be qualified.

If it’s a good family and the child gets appropriate amounts of love and care and attention over time new attachments could develop. But you cannot eliminate the considerable risk of negative repercussions including cognitive and emotional consequences. The ideal time to do what is being proposed here was within the first 6 months.

44The kin mother’s observations were that DM slept well, ate well and was “perfectly fine” during his visits with them. During the last one, in January 2019, she said he had a “meltdown” after an attempted Skype contact with the Applicants on his second day, but after being “consoled” he was perfectly fine the rest of the day. During that visit, she said “DM would say ‘I want mommy, I want daddy’ but he wasn’t crying. I’d say ‘you’ll see mommy soon’. He was fine with that”. Apart from some hitting during the most recent visit, the kin mother did not notice any fear or distress in DM. What she did see she attributed to shyness.

The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity

45The kin mother said her long-term plan for DM is to raise him as her cousin.

He’s two. He doesn’t really know what cousin is. He knows the (Applicants) as his mom and dad so I’m not going to change that. If he’s with us and he gets older and asks about cousins I’m not going to lie to him. I’d say your mom is my cousin and that’s why I’m raising you as my cousin.

46The kin mother’s back up system (babysitting etc.) if DM is placed with them will be her two children and possibly her mother who also works and is not emotionally close to members of the family. The kin mother’s daughter plans to go out of province to university in September. Her son has no babysitting or child care experience. The kin mother describes herself as a “homebody”. She does not drive and said she has social anxiety.

47The Director of Service, KW, was formerly supervisor to the workers involved with DM, the Applicants, the biological family and the kin. He spoke of Case Conferences within the agency and was present at all of them. Other Directors attended as well. The plan for DM to go with the kin family out of province was put forward on April 6, 2017. It was the Society’s view that it has an obligation to explore kin before seeking other forms of permanency planning and to recognize indigenous roots. At that time LM had just been placed in the Applicant’s home. There was not yet a permanent plan for her and she was a stranger to DM. The original plan was to place DM with the family out of province on a supervision order with the birth mother reconnecting with her extended family. Over time it became clear that was not an option. The maternal kin family was not an option for LM. The Society decided to split the siblings and place DM with his “blood relations”.

48Regarding the sibling relationship the Director said the fact that LM may miss DM does not mean there is an issue with attachment and detachment. In his view “It’s how the adults respond to the situation”. He acknowledged LM would need an avenue to address her feelings and that the connection would still be important if DM moves. They can still see each other, talk to each other, know each other.

49When questioned about assessing the risk of removing DM from the Applicants the Director said this had been done in the Case Conferences. He said it is not uncommon for children to be in foster homes for 2 years and bonded with the foster parents and then be returned by the courts to biological parents.

50The resource worker for the Applicants since December 2016 described a very good working relationship with them and described them as “exemplary” foster parents. Since May 2017 they have consistently expressed their willingness and desire to adopt both DM and LM. The worker has seen DM and LM and the Applicant’s daughter P together and noted that DM sees them both as his siblings. “He sees that family as his family”.

51The Applicant, KC, has voiced her frustrations to the resource worker and said they were finding the Child’s visits with the kin family hard. Following the January 2019 trip out of province she reported that he seemed exhausted and out of sorts and was showing signs of distress. KC had regular check-ins with the kin mother during the January 2019 visit and confirmed that they would be willing and able to facilitate communication and access with the kin.

The child’s cultural and linguistic heritage - possible Metis connection

52The kin mother testified that she is the birth mother’s second cousin. She last saw the birth mother over 20 years ago when she was about 3 years old. The kin mother and her husband have offered a kin placement with them to keep DM in the family. They have 2 children. Their daughter is 20 and will be leaving home to start university in the fall of 2019. Their son is 16. He lives at home and works with his father. The kin mother has worked for the last 15 years, alternating day and night shifts, at a restaurant. Her husband works as a manager for a chain restaurant.

53The kin family have had 5 visits with DM since his birth. They expressed interest in planning for him shortly after he was born but withdrew in December 2016 when the Society plan included his birth mother. They renewed their offer in the spring of 2017 at which time the Society reactivated a kin assessment request of the out of province child protection services.

54The Director of Service confirmed the kin family has not completed PRIDE Training and there has not yet been a SAFE Homestudy assessment of the kin plan. These necessary processes would take considerable time and require the involvement of two separate organizations out of province.

55The kin family first met DM in November 2017 when he was one. Their next visit was in May 2018 when they visited with the Child at the Society offices. A child protection worker, CV, took DM to the kin family’s home out of province for 5 days over the July 1, 2018 long week-end and did brief scheduled drop-ins on 4 of the 5 days. In November 2018 the kin family came to Ontario and stayed at a family friendly hotel with DM for 4 days. In January 2019 DM had a 10 day visit with the kin family at their home.

56The kin mother testified that her father is Metis and her mother is not. Three to five years ago her daughter did a family tree project at school and found a possibility that the kin mother’s mother may have some Metis connections. Her mother is illiterate and has never explored that possibility, nor have the kin mother or her brother since they learned of it.

57The Director of Service acknowledged that the judge in his October 2018 final Order made a statutory finding that DM is not Indigenous, Inuk or Metis. He also acknowledged there is no confirmation that any member of the kin family on the maternal side (which is the “blood connection” to the Child) is Metis.

58The kin mother said she intends to follow up and explore the possible Metis connection.

59The Applicants both testified that they will explore and support DM’s cultural connections through the kin family and locally if his Metis heritage is confirmed. They first heard of it at a Society conference in November 2018. Their adopted daughter, P, is bi-racial and there is an openness order with the biological parents. The Applicant KC described some of her efforts to support and maintain her daughter’s cultural connections.

CONCLUSION

60The inescapable conclusion from the evidence is that DM is attached to the Applicants, his half-sister LM, and his older siblings in the home. The Society provided no evidence that it has seriously considered the effects on DM of disrupting those attachments and, in fact, confirmed that none of its staff have the necessary expertise to do so.

61Dr. Blake’s evidence establishes that DM will experience serious consequences if he is permanently separated from this family. All parties expressed their trust in Dr. Blake’s wisdom and expertise. They did not dispute his analysis of the impact on a child of DM’s age of a significant attachment disruption. In the absence of evidence to the contrary, we relied on his written report and testimony, particularly in response to questions posed by the Panel. The lived experience and connection between DM and significant others in his foster family as described by various witnesses including the kin mother was determined by the CFSRB to be consistent with the concept of a secure attachment as described by the expert witness. Further, the two future permanency options proposed for DM were also considered in the context of the expert witness’s assessment of the impact of the relational and environmental circumstances of each option. The CFSRB placed appropriate weight on this expert’s testimony and written report in making its decision.

62There is a viable permanent plan for the Child’s adoption with his half-sister, LM. The Applicants propose to adopt them and are cleared to proceed with that plan immediately.

63The kin plan to move the Child out of province is not viable, in part because a primary care-giver would not be available to DM on a day-to-day basis, particularly during the first year of his integration into the kin family’s home. The risk to DM is too great.

64The Applicants are willing to maintain the Child’s contact with his maternal extended family. Further, if the possible Metis connection is established at some point in the future, they will explore and support that connection.

65The CFSRB acknowledges the kin family's well-intentioned desire to keep DM with family and the efforts they have made.

66In arriving at its decision to rescind the Society’s decision to remove DM from the Applicants' home, the preponderance of the evidence supports keeping the Child in his current environment where he will be adopted, with his half-sister, by the Applicants.

ORDER

67On February 28, 2019, the CFSRB made the following Order:

The Child and Family Services Review Board directs the Respondent not to carry out the proposed removal of [the Child] from the Applicants' home.

CONFIDENTIALITY ORDER

68Except as otherwise provided in the Order, pursuant 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.

69The CFSRB will permit the use of its decision and these reasons in any adoption proceedings involving the Child.