AC v. Simcoe Muskoka Child Youth and Family Services, 2019 CFSRB 16

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

AC Applicant

-and-

Simcoe Muskoka Child Youth and Family Services Respondent

DECISION

Adjudicator: Andrea Himel, Gail Gonda, Theresa Hughes Date: April 03, 2019 Citation: 2019 CFSRB 16 Indexed As: AC v Simcoe Muskoka Child Youth and Family Services (CYFSA s.192)

APPEARANCES

AC, Applicant S. Nadine Finbow, Counsel

Simcoe Muskoka Child Youth and Family Services, Respondent Jeffrey Hustins, Counsel

Introduction

1This is an Application filed on July 3, 2018 under section 192 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the "Act").

2The Applicant seeks a review of the decision of the Simcoe Muskoka Child, Youth & Family Services (the "Respondent") to refuse her application to adopt FG (the "Child"), born on [...], 2016.

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Child and Family Services Review Board (the "CFSRB") is whether the decision of the Respondent is to be confirmed or rescinded after consideration of the best interests of the Child.

4The application was heard on March 6, 2019.

5The CFSRB issued an order on March 12, 2019 rescinding the Respondent's decision. These are our reasons for that decision.

the law

The CFSRB's Requirements under the CYFSA

6In this application the CFSRB must determine if the Respondent's decision to refuse the Applicant's application to adopt the Child is in the Child's best interest.

7Under section 192 (6) of the ACT, the CFSRB is required to send notice of this application to the Métis Nation of Ontario because the Child has community affiliation/membership with Métis Nation of Ontario.

8To make a 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).

9The CFSRB is specifically required under section 179(2) to

(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 of 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 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,

vi) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity, and

vii) the effects on the child of delay in disposition of the case."

10The most relevant statutory considerations in this matter relating to section 179(2) (c) are:

a. the child's physical, mental and emotional needs,

b. 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,

c. the importance of continuity in the child's care

background

The Child

11The Child has Métis heritage through maternal lineage.

12The Child was born on [...], 2016, was apprehended from the mother on August 1, 2016 and placed with the Applicant immediately. The Child has resided in the Applicant's home since.

13Access with the birth mother took place until the Child was four months old, but efforts to reunite the parent and Child were not successful. There has never been contact with the birth father. The Child became a Crown ward (now referred to in the Act as a child in extended society care) without access, in June 2017.

14The Child has two older half-siblings by the biological mother. They were both adopted into two separate families. The family of the younger half-sibling was approved and chosen by the Respondent to adopt the Child in this application.

15We heard from the parties that the Child attends daycare and church regularly and has a strong attachment to the foster family.

The Applicant

16The Applicant is the Child's foster parent. She was widowed in 1996 after five years of marriage. She had no children at the time, but always wanted children. She applied to adopt in 2001 and adopted her first child through the Respondent in 2009. That child is now 12 years old. The Applicant told us she sought out and found many support services for her adopted child which helped resolve that child's challenges. She always wanted to adopt another child and continued providing respite care services for the Respondent. In 2015 the Applicant became a foster parent, with a view to adopt, with the Respondent agency.

17The Child was placed with her at the age of 2 days on August 1, 2016 and became available for adoption in June 2017. The Applicant made a formal request to adopt at that time. She was advised that the Respondent had to determine whether the Child could be placed with extended family first. In November 2017, it was determined that a maternal aunt wanted to receive updates about the Child, but that no family members expressed a desire to adopt.

18Prior to an adoption case conference that was held on January 10, 2018, the Applicant was advised by the Respondent that her application to adopt would be approved. However, during the meeting the Respondent determined it was necessary to explore adoption with the families of the Child's half-siblings. On June 6, 2018, the Applicant was advised the parents of the younger half-sibling had been approved and chosen to adopt the Child. The Applicant was asked to participate in pre-adoption access visits with the younger half-sibling's family beginning June 21, 2018. There have been four visits.

19Early in the Child's placement in her home, the Applicant had been told by the Respondent that there were two adopted half-siblings, but no access took place prior to June 2018. The Applicant is willing to maintain contact with the Child's half-siblings, and has also provided photos and up dates for a maternal aunt as requested.

20The Applicant's initial Structured Analysis Family Evaluation (SAFE) Home Study was completed on July 16, 1996 and she said she requested an update on May 9, 2018 but the Respondent told her it was not needed. The update was later completed and recommended for approval by the Respondent on February 14, 2019.

21The Applicant has numerous extended family members with whom she and the children visit regularly. She has also developed numerous relationships in her community, her church, through her baking business, and at the children's daycare and school. She is in regular attendance at church and the Child's daycare.

22The Applicant has made concerted efforts to seek out information about the Child's Métis heritage and culture and has made it part of the entire family's life; regularly attending Pow Wows, other community activities, arranging a naming ceremony, making the Child a Métis ribbon dress with her spirit colours, reading relevant books, and connecting with Métis services.

The Positions of the Parties

The Applicant's Position

23The Applicant testified that she was the only mother the Child has ever known and she believes it would be detrimental, causing emotional harm, if the Child were removed from her home.

24The Applicant has been able to access multiple services for the Child and believes she is a good advocate for the Child's needs.

25She has connected with the Métis Nation of Ontario and maintains that connection to the Child's Métis heritage on the Child's behalf.

26The Applicant is demonstrating that she values maintaining biological family ties and is willing to do so with the Child's younger half-sibling and the adoptive family. She has been providing regular updates for the maternal aunt.

The Respondent's Position

27The Respondent agrees with all of the Applicant's statements as set out above. However, the Respondent takes the position that the sibling bond must take precedence over an adoption with the Applicant, as that bond will outlast even the bond between parent and child. They maintain that the Child and her younger half-sibling should be adopted into the same family so that they will form this bond more naturally having unlimited access to each other. The Respondent directed that there be access in June 2018.

28The Respondent believes the Applicant has provided good care and the Child is thriving in the Applicant's home, having developed a strong and loving family bond.

29The Respondent maintains that because the Child has formed a strong bond with the Applicant and her family, this means the Child can adapt well and form a new and strong bond in a new adoptive family in the home of her youngest half-sibling.

30The Respondent chose the home of the younger half-sibling's adoptive parents as an adoptive placement and later, also recommended the Applicant's home as a suitable adoptive placement.

analysis

The Child's Views and Wishes

31Due to the young age of the Child, we did not hear direct evidence of the Child's views and wishes, and a legal representative was not made available to speak on the Child's behalf. Instead, we heard evidence given by the Child in Care Worker for the Respondent, the Adoption Worker, as well as the Applicant's evidence, attesting to the Child's outward signs of healthy development, happiness, and love and affection in the Applicant's home. She is thriving.

The Child's Métis Culture, Heritage Traditions, Cultural Identity and Connection to Community

32On July 13, 2018, The Métis Nation of Ontario declined the invitation of party status in this matter but the Panel maintained consideration for the Child's Métis heritage and the Child's connection to the Métis community.

33The Respondent's workers testified that the Applicant has encouraged Métis culture.

34The Applicant provided photos showing the family's participation in various Métis events. She is not only establishing and maintaining connections with the Métis heritage for the Child, but the entire family has adopted the culture themselves.

35The Applicant described her dedication to learning about the Métis culture by meeting and talking with many families in the Métis community, watching You Tube videos, listening to Métis music, reading books, and playing culturally oriented games with the Child.

36The Applicant initiated contact with the Métis Nation of Ontario and has a Métis Family Health and Wellbeing Worker. Under their recommendation the Applicant told us she arranged a Spirit Naming Ceremony, learned how to approach an elder and how to give offerings. She was told the Child needed a dress to represent her Spirit colours and the Applicant made one.

37In light of the above information the Panel is satisfied that the Applicant is invested in supporting the Child in her developing identity as part of the Métis culture and traditions.

The Child's Physical, Mental and Emotional Needs

38The Applicant is proactive in anticipating the Child's physical and developmental needs such as; Speech and Language Therapy, Physiotherapy, Occupational Therapy, and vision and hearing health. Because of her experience with her adopted child, she said she learned how to access services and used her acquired knowledge to collaborate with the Respondent's worker to obtain and monitor services for the Child in this application.

39The Child's Worker testified that the Applicant has done exceptionally well with the Child's development but that services were accessed with her assistance.

40Physiotherapy was the first service accessed for the Child's walking skills which were slow in developing. The Applicant said the Child has now been released from Physiotherapy and is walking without issue.

41The Applicant told us she participates and coordinates with a speech related resource teacher who visits the daycare. She took a two-day course for parents on communication by speech and occupational therapy, geared toward helping parents understand how to help their children. There were speech exercises to do with the Child, coordinated at home and at the daycare. Since that time, the Child's progress has been noted and it is anticipated she will soon be discharged from speech and language services.

42At this time, the experts have told the Applicant it is too soon to know whether there will be any Occupational Health needs and the Child is under observation.

43At the recommendation of the Speech Pathologist, the Child has been in daycare since April 2018 and now attends five days per week. The transition to daycare was initially difficult with the Child crying, screaming, and holding on to the Applicant, but the Child was able to be soothed and got used to it when the Child realized the Applicant was returning.

44The Applicant intends to leave the Child in daycare until it is time to start school. Then she plans to have the Child attend the same private school as her adopted child because that child has done well at the school and the Child in this application would have the same opportunity to have small class sizes and more one-on-one time.

45The Applicant referred to the Child's eye condition as a "floating eye". A specialist is observing the condition which requires visits out of town every four to five months. The Applicant has taken the Child to these appointments. According the Applicant, the specialist physician says the condition may correct itself, and if not, it would require surgery.

46It is obvious to the Panel that certain developmental and health needs arose for the Child and may still present themselves as development moves forward. The Child's Worker, as per her role, has supervised care and assisted in accessing services. For all of the reasons already outlined, the Applicant has demonstrated she can reliably identify and care for the Child's needs, as well as access services as needed in the future.

The Child's development of a positive relationship with a parent and a secure place as a member of a family

47The Child has lived with the Applicant's family since birth. The Applicant tells us she is the only mother the Child has ever known. She describes the Child as having been a happy content baby who never cried unless she was hungry. Now she calls the Child her "shadow", going everywhere she goes. The Applicant knows the routines; sitting together, getting dressed, having breakfast, brushing teeth... The Applicant testified: "She always has to hold my hand. As soon as she sees me at the end of the day (in daycare) she yells Mommy and we go home." They prepare supper together, they read, have bath time, and the Child wants the Applicant to hold her hand to fall asleep. They even have favourite songs.

48Both workers for the Respondent testified to having observed a healthy attachment between the Child, the Applicant and her adopted child. The Child's worker labelled this as a mother/child and sibling relationships. She stated her impression is that the Child feels like she is an important part of the family.

49The Applicant testified to a close bond between herself, the Child, and the Applicant's adopted child. She said her adopted child adores the Child and they play Lego and racing cars together. She noted that the Child is always cuddling up to her adopted child and when in the community, the Child refers to her adopted child as a sibling. The Applicant says: "My family is not built on blood, it's built on love."

50The Applicant's extended family members play a strong role in the Child's life. We heard the Applicant say that they visit her parents out of town on weekends. She said the Child recognizes the exit on the highway and calls out Nonno and Nonna; the names she has learned for grandparents. They enjoy each other's company. She described her elderly father playing racing cars on the floor with the Child or picking tomatoes in the garden together. The Applicant described a close relationship between her sibling and the Child, who talks to her on the phone every evening, and when they are together, they go for walks or bike riding.

51The Child has had a difficult time being separated from the Applicant. She mentioned her experience of having respite care on two occasions, once in 2017 and once in 2018. On those occasions, the Child was extremely happy to see her, but that was followed by a week of sobbing and clinging before the Child calmed down. For this reason, she will only have her sibling and a well-known friend babysit. She no longer uses respite care saying: "... (the Child) is part of the family and what we do, we do together."

52Considering the Child's positive relationship with a parent and a secure place within a family, the Panel relies on agreement from both parties that the Child has a healthy attachment to the Applicant and her family. We heard they have routines and a good network of people that support a family structure, as the Applicant says: "...built on love." The Panel is convinced this test of best interest is being met under the Applicant's care.

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

53A maternal aunt has been receiving updates of the Child's progress provided by the Applicant, via the Respondent. However, the Child has no direct contact with biological family, with the exception of recent access visits with the younger half-sibling. The Child's two half-siblings were adopted into two separate families and they have had no contact. According to the Adoption Worker, the older half-sibling's adoptive family is not open to having contact. Contact between the Child, the younger half-sibling, and the younger half-sibling's adoptive family was initiated by the Respondent, because they chose this family as an adoptive home for the Child. Their first contact took place in June 2018 and there have been four visits in preparation for adoption. The Applicant and her adopted child have been part of these visits.

54The proposed adoptive parents expressed an interest in participating in this Application. The CFSRB consulted them about their wishes. On November 27, 2018 it was determined these parents did not wish to become parties in the matter. However, the Panel was able to review their Home Study, prepared and submitted by the Respondent, but the Respondent did not call them to give evidence.

55The Applicant testified that she felt it was important for the Child to have a relationship with the younger half-sibling. Her goal is to have monthly visits between the Child and the younger half-sibling, with contact on special occasions, like holidays and birthdays. She anticipated that in the event of a move of one of the families, distance could be a factor. In that case she foresaw the possibility of quarterly visits, depending on circumstances. "They would be considered an extension of our family..." said the Applicant.

56We heard from the Adoption Worker that the parents of the younger half-sibling would be open to maintaining contact between the Child and the younger half-sibling but it would be emotionally difficult for them for some time if they were not going to be the adoptive parents of the Child.

57The Panel considers that opportunities for contact with biological family are limited to that with the Child's younger half-sibling at this time. Some minimal access visits have taken place and could serve as a base from which to continue building a sibling relationship. Both the Applicant and the younger half-sibling's adoptive family are in favour of continued access and the Applicant demonstrates her engagement as she is already thinking of contingency plans should barriers to contact arise.

Ties to Members of the Child's Community

58The Applicant testified she is involved in her church and the Child attends with the family regularly. They have lunch and go to recreational activities with another church family after services.

59The Child attends daycare in her community and has made progress in speech with their assistance.

60We heard from the Applicant that the children in their neighbourhood love seeing the Child because she's the youngest around. They call the Child by name and want to play together. The family also uses community facilities like the beach. They go to community parks and just have moments when the Child rides her push bike along the neighbourhood walkways.

61In considering the test of the Child having ties to members of her community, we examined the above information, and believe it speaks to the Child's active participation in her community and the positive ties she has made with organizations that support her. The Child enjoys connections with the children, and families that are established there.

Continuity of care for the Child

62The Respondent was aware the Child had half-siblings and knew of their whereabouts but contact between them was not initiated until nearly two years after the Child's placement with the Applicant. We were told by the Adoption Worker this was because of communication processes at the agency that have since changed. He said the Applicant's request to adopt was denied because it is the Respondent's policy to place siblings together so they can grow up in the same home. He felt the Child could use her ability to attach to the Applicant's family to help her make the transition to her adoption into the younger half-sibling's family. However, there is no continuity for the Child with that family.

63The Child has already found her identity as part of the Applicant's family, her extended family, and her community relationships. She has a routine. She attends daycare, plays at community facilities, and has a home. The Applicant has made concerted efforts to create a cultural identity for the Child and her family with the Métis community. She recognizes the importance of contact with biological family and is willing to maintain and facilitate this. The younger half-sibling and the Child did not know of each other's existence before June 2018 and they saw each other four times in nine months. The Child has a foster sibling she has known since birth and sees daily. A relationship can still develop between the younger half-sibling and the Child without taking the Child away from the only family she has ever known.

64The Child only knows one person as her mother, the Applicant. She has a difficult time adjusting to alternate caregivers, but is only beginning to tolerate it having learned the Applicant will return for her. The Child has demonstrated the ability to develop attachment, but she would surely be subjected to unnecessary trauma by having to live with an entirely different family.

65In assessing continuity of care individual circumstances must be considered. While placement with biological siblings could be beneficial in many cases, the Child does not have an established history with the half-sibling in this case. Their contact is only beginning. However the Child has been placed in the same home since birth and has established an identity with the Applicant, her family and her community. While the Child does show signs of being able to form attachments, it would not be in the Child's best interest to be uprooted from this home unnecessarily. The Applicant knows and understands the Child's needs and has demonstrated exceptional care in all areas. She would like to provide care on a continuous basis as an adoptive parent. Overall the Panel believes the Applicant offers continuity for the Child.

order

66In considering the relevant best interests of the Child, we find that the Applicant is the only mother the Child has ever known and a change to this situation would be unnecessarily intrusive. Relationships have been forged with an extended family and the Child lives with a foster sibling she has known since birth. This adoption is the best way to ensure that the Child avoids the trauma of being placed with another family, which will ensure that her emotional needs continue to be met. We also find that the current placement provides the support necessary to maintain cultural connections with the Métis community.

67On the basis of the testimony by both the Applicant and the Adoption Worker for the Respondent, the opportunity exists for the Child to build on the contact that has taken place thus far, to continue to forge a relationship with the younger half-sibling.

68A change in placement would not only disrupt the emotional bond the Child has with the Applicant's family, it would also disrupt the elements of what the Child knows as routines, school, neighbours, friends, and family life. The Child would unnecessarily have to bear the burden of these changes.

confidentiality order

69Pursuant 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.

Dated at Toronto, April 03, 2019.

Andrea Himel __________________________________ Andrea Himel Presiding Member

Gail Gonda __________________________________ Gail Gonda Member

Theresa Hughes __________________________________ Theresa Hughes Member