KV and SV v. Halton Children’s Aid Society, 2019 CFSRB 43

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

KV and SV Applicants

-and-

Halton Children’s Aid Society Respondent

DECISION

Adjudicator: Andrea Himel, Cheryl Milne and Theresa Hughes Date: August 15, 2019 Citation: 2019 CFSRB 43 Indexed As: KV and SV v. Halton Children’s Aid Society (CYFSA s. 192)

APPEARANCES

KV and SV, Applicants Lorne Honickman, Counsel, and Daria Makhina, Student-at-Law

Halton Children’s Aid Society, Respondent Diana Skrow, Counsel

Introduction

1This is an Application filed on March 29, 2019 under section 192 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched. 1 (the “Act”).

2The Applicant Foster Mother (KV) and Foster Father (SV) seek a review of the decision of the Halton Children’s Aid Society (the Society) to refuse their application to adopt CH (the Child), born on November 27, 2016.

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the Child and Family Services Review Board (the CFSRB) is whether the decision of the Society is to be confirmed or rescinded after consideration of the best interests of the Child.

4The Application was heard over a number of days commencing on April 9, 2019, when a case management conference call was held on preliminary issues, and continued with six days of hearing on June 24, 25, 26 and July 23, 24, 25, 2019. On August 1, 2019, the CFSRB issued an order rescinding the Society’s decision with reasons to follow. The following are the reasons.

The Law

The CFSRB’s Requirements under the Act

5In 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 interests.

6The test for the 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.

7The CFSRB is required to make a substantive decision in the best interests of the child, and in doing so, the CFSRB must consider the over-arching considerations set out in the Preamble and section 1 of the Act and is mandated to take into account any of the specifically enumerated factors that are relevant in section 179(2).

8The 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 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 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.

9In this case, the most relevant statutory considerations under section 179(2)(c) are:

• the child’s physical, mental and emotional needs, and
• the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

In addition, the CFSRB considers the Child’s development of a positive relationship with a parent and a secure place as a member of a family as another circumstance in this case that is relevant.

Background

The Child

10The Child is not yet three and is currently residing with her fourth set of caregivers. She was brought into the care of the Society on January 15, 2017 and was placed in a short-term placement. She was then moved to a long-term placement with the Applicants on April 6, 2017. She was removed from their care on February 15, 2019.

11At the time of the removal the Child had resided with the Applicants for 22 of her 27 months. She referred to the Applicants as mommy and daddy, had nicknames for the Applicants’ two older boys (the Foster Brothers) and their grandmother (Nana).

12CH resided with her third set of foster parents from February 2019 to present. She now refers to both sets of foster parents as mommy and daddy.

13A final order for Extended Society Care with no access to the Child’s biological parents was made on September 21, 2018. The Applicants made it known prior to, and at that time, that they wished to adopt the Child should she become available for adoption.

14An appeal of the order was commenced by the birth mother but was ultimately dismissed as of January 8, 2019, at which point the Society was able to formally move forward with adoption planning. However, CH was never placed for adoption because of a child protection investigation, regarding another foster child, that was ongoing at that time in the Applicants’ home.

The Decision to Remove the Child and Refuse the Adoption Application

15The Child was removed from the Applicants’ home based on a verified protection concern. Two other children had been placed with the Applicants on November 22, 2018. After their placement bruising was observed on one of those children. They were removed from the home on December 10, 2018, while CH remained, with supervision, while the investigation continued. Following an investigation and a medical assessment by local Children’s Hospital specialists, the Society closed the Applicants’ home and removed CH on February 15, 2019.

The Applicants’ Position

16It is the Applicants’ position that the Society’s investigation was significantly flawed and that the Applicants pose no risk of harm to the Child. The Applicants objected to the removal of CH on February 15, 2019, however, as the Child had only resided with them for 22 months rather than 24 months, section 109 of the Act does not apply.

17The Applicants maintain that the Child is firmly attached to them as her parents and is a loved member of their family, which includes the Foster Brothers and Nana (who lives in a separate suite in the home). It is the Applicants’ position that it is in the Child’s best interests to be adopted by them as she has formed a strong relationship with them as a member of their family and has thrived in their care. They argue that her removal from their care has caused her significant trauma. In support of their position, the Applicants both testified as did KV’s mother (Nana) and Dr. G (the Family Doctor) who provided medical care for CH during the 22 months that she resided with the Applicants.

18The Home Study conducted by another Children’s Aid Society identifies only the ongoing investigation as the reason for not recommending the Applicants for adoption in what was otherwise an excellent report of their capacity to adopt.

The Respondent’s Position

19The Society cites the verified risk of harm as a reason for not proceeding with the adoption of the Child by the Applicants and further cites the importance of her continuity of care as a reason to not cause further disruption to the Child by removing her from the current foster home. The Society has not stated with certainty that continuity of care for the Child will be provided with the current foster home, and has therefore, not provided evidence of the suitability of that family to adopt or provide long term care through an Adoption Home Study or similar evidence.

20In support of its position, the Society filed seven affidavits from employees of the Society, and called as witnesses two police officers, two medical experts and a therapist who is working with the Child to facilitate transition. All but one of the Society workers were cross-examined on their affidavits.

Analysis

Applicants’ History with Society

21The Applicants have been foster parents with the Society since 2012 and over that time have fostered 12 children including CH. They had a very good reputation with the Society in respect of their care of the foster children placed with them. KV was described as proactive in meeting the Child’s needs by CD, the Child and Youth Permanency Worker (the Child’s Worker), and “one of the good ones” who was one of the best to follow protocol and to follow procedure by LC, the Applicants’ Resource Worker (the Resource Worker) who supported the home through several child placements. She stated in her affidavit:

a. The children were always clean, dressed appropriately for the weather, and appeared well cared for;

b. When visiting the children at the Resource home, I noted that the children had their own rooms that were clean, safe and decorated nicely;

c. The children who were verbal frequently stated that they liked their foster home, that the food was good, they were treated well, the rules were fair, and that they felt safe;

d. During my many privacy visits with the children, at no time did they ever express any inappropriate discipline or concerns regarding their care to me while in the [Applicants’] Resource home;

e. In working with the community professionals, such as [the Children’s Community Resource] and the local school, the service professionals consistently spoke highly of the [Applicants] and the care they were providing the children in their home;

f. The [Applicants] were able to follow Ministry guidelines, and always had the children’s medicals, dentals and eye exams completed on time; and

g. The [Applicants] worked co-operatively with me, and kept me up to date with regard to the children’s wellbeing, the gains they made, and the struggles they had.

22The Resource Worker further stated that the Applicants had an unblemished record as resource parents, and all children in their care reported caring, loving, attentive care. The Child’s Worker, in describing their care of the Child, stated in her affidavit “During [the Child’s] placement in the [Applicants’] resource home, the resource parents were attentive to and met [the Child’s] needs.”

The Home Study

23Section 99(1) of Ontario Regulation 155/18 requires an adoption agency, the definition of which includes a children’s aid society, to arrange for the preparation of a report of a home study of the prospective adoptive parents before placing a child for adoption. There is no corresponding requirement that an applicant for the adoption of a child arrange for a home study, or that the CFSRB in hearing an appeal under s.192 of the Act cannot, in rescinding a society’s decision to refuse an adoption application, place a child without a home study being completed. That being said, a home study is the standard practice for adoption placement except for family adoptions. If the child is already placed in a foster home, it would generally be in the best interests of the child that the home study be completed while the child continues to reside with the foster parents to preserve continuity of care. The Structured Analysis Family Evaluation (“SAFE”) home study, along with the completion by the prospective adoptive parents of the Parenting Resources for Information and Development (“PRIDE”) is utilized by children’s aid societies in evaluating both foster homes and prospective adoptive homes.

24As stated by the Divisional Court in Muskoka, above, a home study is not determinative and is subject to review. The CFSRB must decide whether the adoption application is in a child’s best interests (at paras. 40 – 45). Furthermore, at paragraph 30 the Court said:

The purpose of s.144 (now s.192 of the Act) is to provide an independent review of decisions made by children’s aid societies in relation to applications to adopt particular children. The Board’s mandate is distinct and separate from the mandate of the court. While the Board has the authority to decide whether the adoption application is in a child’s best interests, it is ultimately for the court to decide whether an adoption order should be made.

25The issue of the CFSRB’s jurisdiction to place a child for adoption where a home study does not support the placement, has been addressed several times. For example, in J.P. and M.P. v. Children’s Aid Society of Algoma (CFSA s.144), 2013 CFSRB 5, the CFSRB, following Muskoka, held as follows at paragraphs 17-19:

The Society argued that since they did not approve the homestudy, they cannot accept the Applicants as adoptive parents and cannot place the Child with them for adoption. The Society submitted that there would essentially be no point placing the Child with the Applicants despite an order from the Board because they would not necessarily support the child going to the Applicants in adoption proceedings before the Court. [s. 149 (5)]. The Society director must also file a statement with the court in which he or she could be of the opinion that the adoption was not in the Child’s best interests [s.149 (4)].

This argument was rejected by the Court in Muskoka at para 40:

The Society also submitted that the Board’s decision was unreasonable because it has the effect of reducing, if not eliminating, the importance of the homestudy process. Again, we disagree. The fact that the Board disagreed with the decision of the Society, who based their decision on the homestudies, does not mean that the homestudy process has been undermined or eliminated. All it means is that the decisions made by the Children’s Aid Society in reliance on these home studies can be subject to review. Given the wording of s.144, this is the clear intention of the legislature.

The Board adds that to hold otherwise would be to render the review process under s. 144 meaningless when there was a homestudy that did not “approve” or more accurately, recommend the approval of the applicants for adoption.

26Following the commencement of the hearing on April 9, 2019, we issued the following Case Management Direction on April 29, 2019:

The panel hearing this matter has reviewed the file and as it is unclear as to the status of any Adoption Homestudy, the panel makes the following directions to ensure that this hearing proceeds expeditiously.

As part of the disclosure that the parties are directed to produce by April 30, 2019, the Respondent will confirm in writing to the CFSRB the status of any Adoption Homestudy. If one has been completed it will be disclosed to the Applicants.

In the event that one has not been completed, the Respondent shall prepare an Adoption Homestudy (with the Applicants’ cooperation), and shall file same with the CFSRB in the joint book of documents by June 3, 2019.

27In accordance with a further direction dated May 6, 2019, it was recommended that the home study be completed by an independent assessor or another Children’s Aid Society. Ultimately, the SAFE home study was completed by another Children’s Aid Society on June 6, 2019. The home study also refers to the successful completion by the Applicants of the PRIDE pre-service training program. Both Applicants testified that the Home Study is an accurate reflection of them and their home.

28The SAFE home study is very positive about the Applicants’ ability to care for the Child and they are described as responsible, competent, knowledgeable, patient and affectionate caregivers. LB, the Society’s Director of Permanency and Child Services (the “Service Director”), agreed in her testimony that the SAFE home study was thorough and excellent, excepting only the concern about the recent investigation resulting in the Society’s conclusion of a verified child protection issue. The home study also notes the concern of having an open investigation remaining on the file and concludes that, “in absence of the verified child protection concern, KV and SV present as a family capable of supporting a child through adoption.” The recommendation of the Home Study is that the Applicants be denied for adoption.

29The Service Director explained that there are no Ministry Directives or written policies of the Society that require a resource home to be closed where there is a verified protection concern. She agreed that there is room for clinical judgement; however, she stated that she would not place a child in a home where there has been verified abuse. She testified that the tipping factor on the decision to remove the Child from the Applicants’ home was the report from the Children’s Hospital dated February 11, 2019, that concluded that the unexplained bruising of the youngest foster sibling on December 10, 2018 was highly suspicious for inflicted injury.

30While the Society removed CH due to their determination of imminent risk of harm, based on a report about another injured child, there was never any suggestion that they would investigate or remove the Applicants’ two biological children. Nor was any evidence presented of protection concerns regarding the safety of the Applicants’ biological children. This causes us to carefully scrutinize the Society’s rationale for refusing the Applicants’ request to adopt.

Verified Child Protection Concern

31We heard extensive evidence about the investigation into the child protection concern. Bruising was seen on the younger child, AR, on two separate occasions: on November 23, 2019, the day after she was placed with the Applicants, bruising was seen on her legs; and on December 10, 2019, the day after SV played a game with the child in which he threw her in the air and caught her, bruising was seen on her arms.

32The Society called as witnesses two child protection workers who conducted the investigations for the Society, two of the police officers who attended at the mother’s home when one of the foster siblings was removed and placed with the Applicants, the officer who conducted the police investigation, the two doctors who examined the child at the Children’s Hospital, three additional workers with the Society and the Director of Permanency and Child Services.

33The Applicants testified on their own behalf and called the family doctor who examined the child on November 23, 2018. Photographs of the bruises taken by KV and the doctors were also filed as evidence.

34On March 18, 2019, LP (the “Investigating Worker”) and MC (the “Second Investigating Worker”), wrote to the Applicants to state their conclusions regarding the investigation. Regarding KV, the Society stated it is “verifying that KV did not appropriately respond to the medical needs of AR to ensure the Family Doctor saw the bruises on her legs” and that the Family Doctor “had requested a follow-up visit with AR and [KV] did not follow through with this appointment.” The letter also stated, “the Society believes that bruising occurred while in [the Applicants’] care however, it is unknown who caused the bruising.” In respect of SV, the Society stated that it is “verifying that [SV] used excessive force and poor judgement given the game caused excessive bruising and AR would have shown some signs of discomfort from being thrown in the air several times.”

35Despite the fact that the decision to verify a child protection concern was not specifically in regard to CH, the parties took the position and the panel agreed that evidence leading to the Society’s conclusions is relevant in this application as it relates to the Society’s decision to remove her and refuse to place her for adoption with the Applicants. Evidence is also relevant to the extent that the verification could support a conclusion that was not in the Child’s best interests to be placed for adoption with the Applicants. Thus, the steps in the investigation and circumstances surrounding the concerns applicable to the foster child are relevant to the determination here.

Verification Respecting KV

36KV stated that the foster siblings arrived at her home the evening of November 22 with the two workers who were responsible for bringing them into care. AR, was approximately 2 years old, had been removed with the assistance of police. LP (the “Intake Worker”) and Detective Constable H testified that the removal was stressful and traumatic. AR’s mother and grandmother were angry and threatening; there was screaming and yelling and breaking things. AR’s father was also present in the home in a caregiving role that day, despite a no contact order due to domestic violence.

37Constable SF was also present during the apprehension. On April 30, 2019, five months after the apprehension and after the child protection investigation of the Applicants had concluded, he spoke with the Intake Worker about his recollection of the apprehension. He had not been interviewed as part of the investigation. He testified that he entered the apartment and stayed with AR and the male caregiver, later identified as AR’s father, while the caregiver changed her diaper and clothes. He stated that he did not see any bruises, redness, scrapes, or cuts on the AR. He did not take notes of the apprehension.

38His evidence conflicted with the evidence of Detective Constable KH and the Intake Worker in terms of who entered the apartment when and the extent of the conflict with the biological mother and grandmother. He testified that he heard no threats to the Intake Worker and that the apprehension was not particularly difficult. Constable SF agreed that his role in accompanying a social worker on an apprehension was primarily officer safety and not looking for bruises on the child. The Society has placed considerable weight on Constable SF’s recollection, which led to the re-opening of the investigation in May 2019, at the request of the Society. However, for the reasons set out above, and in particular the absence of notes in violation of police protocol and the passage of time, the CFSRB has attributed less weight to his evidence.

39KV testified that she did not change AR before putting her to bed that night because she could feel through her pajamas that her diaper was not wet and she did not wish to change her because AR presented with a lot of anxiety. Both KV and SV stated that AR did not wake through the night, nor did Nana hear any noises from the girls’ bedroom. KV said that she noticed the bruises on AR when she changed her in the morning. She took photographs which were entered as exhibits and said that she told the Resource Worker when the worker called that morning. KV has consistently stated to the police, to the Society and at the hearing that she told the Resource Worker in that phone call about the bruising to AR’s legs.

40The Resource Worker, who said she was calling KV on her day off to check in, does not recall KV mentioning the bruises to her. There is no contact log in the Society’s records of this call. KV stated in her evidence at the hearing and in her police interviews that the Resource Worker was aware of the bruises and urged KV to make an appointment for the admission medical with the doctor that day, and to make sure she noted the bruises. KV did that.

41The parties disagree whether the Family Doctor saw and examined AR’s bruises on her thighs. KV stated that AR was extremely upset (crying, falling asleep, waking up, crying again) at the appointment and therefore a full examination was difficult, but that the Family Doctor saw the thigh bruises when she pulled down the child’s pants. The Family Doctor testified that she examined AR’s legs and noticed the leg bruises. She admitted that she did not examine AR’s arms because AR was very upset about being examined; so, she did only what she could do given how upset the child was. However, the Family Doctor did not note the leg bruising on the admission medical form. KV noticed this when she returned home and called back to the office. It was both KV and the Family Doctor’s evidence that KV was told by the doctor’s receptionist, on the Family Doctor’s instructions, to make note of it herself and that she would fix it the next time she brought the children into the office. KV stated that she purposefully made the notes in a different coloured ink.

42The Intake Worker testified that KV told her that the Family Doctor had not seen the bruises on AR because she fell asleep in the doctor’s office. The Investigating Worker’s evidence was that the Family Doctor told her in a phone call on December 20, 2019, that she had sent the wrong file to the Society because of a mix-up in the children’s birth dates and that she did not see the leg bruises on AR because AR had fallen asleep.

43In response the Family Doctor states that the purpose of the December 20 call was to explain to the Investigating Worker about the file mix up by her administrative staff and to offer to send the correct file once she arrived at her office and not her observation of the bruising.

44The Service Director testified that she spoke to the Family Doctor on March 12, 2019, and she did not mention seeing the bruises on AR’s thighs only on her shins.

45The Investigating Worker and Service Director made notes of their calls in the Society’s contact logs. Neither witness specifically asked the Family Doctor about the thigh bruises. KV testified that she repeatedly told investigators that the Family Doctor had seen the bruises and urged them to speak with her. The Family Doctor contends that she never asked for a follow-up appointment, except for completing immunizations in regular well visits. It is also unclear why the Society believed that KV was asked to bring AR for a follow up appointment about the bruises in the absence of any evidence of this request by the Family Doctor.

46Following receipt of the March 18, 2019 verification letter, KV met with the Family Doctor and told her about the conclusions. The Family Doctor testified that on her own initiative she wrote a letter to the Society dated March 28, 2019, copying the Service Director and JB (the “Director of Protection Service”), stating unequivocally that she saw the thigh bruises and that she did not request a follow-up appointment to see AR, contrary to the conclusions in that letter.

47KV has been consistent throughout the investigation that the Family Doctor examined the thigh bruises on AR and that she communicated this to the Resource Worker. The Family Doctor confirmed this in her evidence and in the letter that she sent to the Society on March 28, 2019. We find their evidence consistent and believable. The Family Doctor testified that she was upset with herself that an honest mistake of failing to properly fill out a form resulted in the removal of the Child from KV’s home.

48We find that on a balance of probabilities the Society’s conclusion that KV failed to respond to the medical needs of AR by ensuring that the doctor saw the bruises on AR’s legs is unfounded. KV testified that she immediately took photographs of the bruises and made an appointment that day. Nana also testified that KV told her about the bruising and that she was making an appointment with the Family Doctor that day so that she could see them. Both KV and the Family Doctor testified that the doctor saw the bruising. None of the Society’s workers who spoke to the Family Doctor specifically asked her about the bruising on AR’s thighs. We also find that KV told the Society about the bruising in a timely manner when she told the Resource Worker that morning

49On November 26, 2018, the Resource Worker attended at home for the routine visit that is supposed to take place within seven days of the children’s placement. KV stated that she asked the Resource Worker to look at the bruises but that she did not. The Resource Worker testified that she had a privacy visit with the older foster child but was unable to be alone with AR who was uncomfortable with her. In her affidavit, the Resource Worker states that KV told her about the bruises on the legs, but she did not look at them. She said that KV described them as two little bruises on the backs of her legs. In her testimony, she said that she is not 100% certain that KV did or did not tell her about the bruising and that she regrets not looking at them at that time. KV also gave her the admission medical on which the bruising had been noted by her. The Resource Worker testified that she did not review the medical and simply put it aside.

50The evidence is also clear that KV told another worker about the bruising that week. The Intake Worker stated in her affidavit that RD, the foster siblings’ Child and Youth Services Worker, told her that she had seen the bruises on AR’s legs when she visited the Applicants’ home the week of November 26, 2018. KV testified that she insisted that RD examine the bruises at that visit.

51The Family Doctor testified that upon her examination of the bruising she concluded that they were not recent because of the colouration, and that it was soft with no hematoma underneath, but she conceded that she is not an expert on bruising. The photographs of the bruising taken by KV and by Dr. R at the Children’s Hospital were filed as evidence. There is no dispute that AR had bruises on her thighs. Dr. R in particular found the large thigh bruises concerning as there was no explanation for them. In her report, dated January 8, 2019, she concluded, “in the absence of a witnessed, plausible accidental injury mechanism, the extent and clustered nature of the bruising notes on AR’s left thigh is a concerning finding.” The experts from the Children’s Hospital Dr. R and Dr. N both testified that there is no reliable way to date bruising.

52The Society also states in its letter of March 18, 2019 that it believes that the bruising occurred while in the Applicants’ care. No evidence was led to support this conclusion. There are a number of factors that lead us to conclude that the investigation was significantly flawed. Consequently, the conclusions derived from the investigation are not supported on a balance of probabilities, and the decisions that followed are questionable.

53During the investigation it came to light that both AR’s grandmother and mother lied to investigators about the presence of AR’s father in the home despite a no contact order due to domestic violence, although there was no allegation that this involved the children. The mother had advised that the children had not seen the father since June 2018, which the Society knew was untrue since he was the caregiver when AR was apprehended.

54With respect to the bruising, while the Investigating Worker was in the home the day before the apprehension, she stated that she did not see the child’s legs because she was clothed. A photograph produced by the grandmother appears to show the child in diapers purportedly on that same day with no indication of bruising, but in the photo, the child’s legs are under the tray of a high chair and not clearly visible.

55The older foster sibling disclosed to KV and the Intake Worker that her mother and AR’s father both used physical punishment on her and on AR, while the grandmother, mother and father all denied that physical punishment was ever used by the mother. The older of the foster siblings also told the Intake Worker that she had no concerns about her foster home, that she did not know how AR was hurt, and that she did not see KV or SV hurt her sister.

56AR’s father, who was supposed to be questioned by the Investigating Worker and the police as part of the investigation, was only interviewed in late March 2019, and only by the Investigating Worker and not by police, because of outstanding charges against him. He was reassured by the Investigating Worker that the interview would not impact his access to his child. The father stated that the mother did not use physical punishment on the child, describing her as too soft.

57The stated reason for the apprehension was that the mother had not been abiding by the supervision order. The grandmother was required to supervise the mother but was leaving the children in the mother’s care when she worked outside the home.

58In contrast to AR’s parents, the Applicants were described by all who interviewed them as forthcoming and cooperative. They were interviewed by the Society child protection workers as well as the police and made their sons available for questioning as well. There was one discrepancy in their narrative of what took place on the evening of November 22, 2018, that must be noted.

59In their interviews with police, they did not mention the fact that KV went out that evening to do some shopping, after the children had gone to bed, leaving SV alone to watch the children. The explanation given by both Applicants was that this was routine for them when new children came into their home so they thought little of this. KV had provided the Resource Worker with the receipts from the shopping trip, presumably as they are required for reimbursement. The Society produced the receipts during the hearing and KV agreed that she went shopping that evening. KV produced notes that she had made in preparation for her interviews that make note of the shopping trip. SV testified that the foster children did not wake up during this time, and both Applicants testified that the children did not wake up at all through the night. Neither Foster Brother nor Nana reported in any interview that they were awakened that night.

60In the totality of the hearing, the CFSRB found the Applicants to be forthcoming and believable in their evidence and accepts their explanation for forgetting to mention the shopping trip that evening when they were interviewed.

Verification Respecting SV

61On the morning of December 10, 2019, KV discovered bruises on the arms of AR and immediately contacted SV to inquire whether he knew what had happened. Both she and SV testified that he had been in the primary caregiving role the day before because KV was recovering from a brief illness. KV also immediately contacted the Resource Worker and was instructed to take the child to the Children’s Hospital for examination by specialists.

62These bruises, like the leg bruises, were also determined to be concerning. Dr. N examined AR and concluded that the bruises were inflicted. The Applicants stated that they thought the bruising could have been caused by a game that SV plays with the young children where he picks the children up by the outside of their arms and throws them up in the air and catches them. SV testified that he had played that game with both the Child and AR in the early evening on December 9, 2019. They also thought that they could have been caused by AR putting her arms through the crib but acknowledged that her arms were not stuck in the bars.

63The precise mechanism that was used to lift up the child in the air was not communicated to Dr. N until after the interviews by the police in February, 2019. Dr. N’s initial conclusion that the game would not be a plausible explanation for the bruising was based on her assumption that the child was lifted under the arms. The report she wrote dated February 11, 2019 stated that the bruising was “highly suspicious for inflicted injury.” She rejected the theory that the bruising was caused by the child putting her arms through the crib based on the look of the bruising. After she was contacted by Detective Constable KH and given more details about the game, she added the following addendum on April 5, 2019.

The mechanism as described could result in an application of force in the areas in which AR had bruising. However, throwing a child up in the air using a typical amount of force would not result in bruising in an otherwise healthy child like AR. Although AR is heavy for her age (2 years), her weight is that of a typical 3.5 year old. When 3.5 year old children are thrown in the air in a playful way, it does not result in significant bruising. Thus, it is possible that this mechanism caused AR bilateral arm bruising but it is highly probable that more force than would be typical and necessary was used in this activity.

64In the letter of March 18, 2019 the Society verifies that SV used excessive force and poor judgement causing the bruising. It goes further to state that AR would have shown signs of discomfort. This latter conclusion was not supported by the evidence of Dr. N. The evidence of KV, SV and their boys was that AR was enjoying the game, giggling and asking to be thrown up again and again. Dr. N stated that a child could have bruising even if they are not showing outward signs of distress and that it depends upon the individual child. Dr. N’s conclusions do not speak to the intent behind the force used, i.e. whether the force was deliberately applied to cause harm. She acknowledged that there is a category of accidental infliction which could explain the injury but it is not her role to determine accidental as opposed to intentional harm.

65The appearance of the arm bruising on AR was surprising to everyone. The Applicants expressed alarm in their text messages to each other and immediately followed up with the Society, reporting the bruising and taking the child that day to the Children’s Hospital for evaluation. SV and KV’s evidence, confirmed by KV’s mother, was that this was a game that SV had played with many of the children in the family including CH and bruising had never happened before. We accept the expert evidence of Dr. N that excessive force must have been used on AR to produce this amount of bruising and shares the concern of the Society about the judgement exercised by SV in the mechanism he used to lift the children. We also accept the evidence of SV that he would never do this again, of which he advised the Society and repeated during the hearing.

66The consequences of this incident, which ultimately led to the removal of CH from their home has had a significant and traumatic impact on the entire family. The Home Study states,

[SV] appeared deeply concerned about the bruises and maintained that this was unintentional. He shared the child did not appear to be in distress and was laughing. [SV] stated he has learned from this experience and had no idea as noted by [the Children’s Hospital] physician report, that lifting a heavier child in this way could have caused a bruise. Now that he is aware of the risk, he has ceased this type of play. As a family, they feel they have taken every step to ensure that nothing like this happens again. They have told family members, and friends never to play with any of the children in this way.

Police Investigation

67The police decided on December 11, 2018, that the initial investigation and interviewing was to be conducted by the Society, as it was determined that it did not meet the criteria for a criminal investigation. The police had decided to await the outcome of the medical assessments being conducted by the Children’s Hospital before determining what steps they would take. As previously noted, the Applicants were forthcoming and cooperative with the interviews conducted by the Society on December 10, 2018. The police investigation was conducted jointly with the Investigating Worker who took carriage of the file on December 18, 2018. Police interviews began on January 21, 2019 with the interview of AR’s mother by Det. Const MW with the Investigating Worker. The Applicants and their sons were interviewed on February 20, 2019, while Nana was interviewed on February 21, 2019. Det. Const. H interviewed SV a second time on March 8, 2019 to clarify the way in which he threw AR up into the air. At that time the police investigation was concluded as the officers found that there was no evidence to suggest that the injuries were caused by a criminal act.

68On May 16, 2019, Det. Const. KH was asked by the Society to reopen the investigation. Det. Const. KH was directed to contact KV to further clarify the communications by phone, email and to the physician, about the bruises. He testified that she voluntarily provided her phone logs of November 23, 2019 showing an incoming call that was consistent with a call from the Resource Worker. The Investigating Worker testified that the reason for reopening the investigation was the additional information provided by Const. SF in his conversation with the Investigating Worker on April 30, 2019, about not seeing any bruises on AR on November 22, 2019. This new file remains open because the Applicants have declined to be interviewed a third time about the incident.

69The Applicants both testified at length about the events that took place on November 22 to 23, 2018 and December 9 to 10, 2018 and were subjected to cross examination by counsel for the Society about the incidents. While we believe this should be sufficient to address any further questions the police or Society might have, this is a decision for the Society and we offer no further comment.

Decision to Remove CH

70It was decided in a structured case conference on December 18, 2018, that the Society would not remove CH from the Applicants’ home because of her attachment to them. Instead the Society asked them to put into place a 24-hour supervision plan where another person supervised the Applicants’ interaction with the Child at all times. The Society would not permit Nana to be this supervisor, because she had been in the home during the time that the foster siblings had been in their care. The extended family provided this supervision, which included the family’s vacation in January 2019. The Child’s Worker and the Resource Worker both testified that there were no concerns with the supervision that continued until the Child was removed from the home.

71In her affidavit, the Service Director stated that the Society made the decision to remove CH from the Applicants’ home based upon the medical findings of both specialists, Dr. R and Dr. N, who concluded that the injuries to AR’s left thigh and both arms, as observed by the Children’s Hospital on December 4, 2018, are “concerning findings” and that injuries to AR’s arms, as observed by the Children’s Hospital on December 10, 2018, are “highly suspicious for inflicted injury”.

72We heard evidence that the decision to remove CH from the Applicants’ home was made by the Service Director in consultation with the Society’s Executive Director, on February 14, 2019, but without consultation with either of the workers who were most involved with the family and who had no concerns about CH’s care in the home. The Resource Worker had been to visit on February 14, 2019 and had observed appropriate supervision and the Child’s Worker was on vacation at the time. The decision was made prior to the additional information being provided to Dr. N about the mechanism SV used to lift AR in the air and her subsequent conclusion that this could have been the cause of the bruising to AR. The Society declined to return the Child to the Applicants even after the Addendum was provided on April 5, 2019.

73The Service Director testified that the decision to remove CH was based on their interpretation of the medical report that caused them to believe that she was at imminent risk of harm. Given the Society’s knowledge that, to this point in time, the Applicants had been excellent foster parents, the success of the ongoing supervision and SV’s commitment never to play the game again, we are troubled by the Society’s failure to consult with the workers most closely involved before making the decision to remove CH and its subsequent refusal to reconsider its decision in light of new and important information.

The Child’s Best Interests

74We must make our decision based on the best interests of the Child. As noted above, most of the evidence presented by the Society pertained to the investigation of the child protection issues related to another child, AR. Given the age proximity between AR and the Child, had there been a credible finding that the Applicants had physically abused AR, then it would not be in CH’s best interests to remain in the Applicants’ home because of the potential risk to her as well. However, the evidence does not support that conclusion. For the reasons set out earlier in these reasons we accept that, on the balance of probabilities, AR’s injury was the result of an accidental infliction of harm. Given that SV never caused any harm to CH while playing the throwing game, or otherwise, and given that he immediately committed never to play this game again, we believe that CH is not at risk of physical abuse or an accidental infliction of harm.

75With respect to CH’s best interests, the preponderance of the evidence supports a finding that the Child has had a strong attachment to the Applicants and their family for much of her life and that she was thriving in their care. As previously noted, the Home Study, was thorough and would have approved the Applicants for adoption but for the Society’s protection concern.

The Child’s Views and Wishes

76Due to the young age of the Child, we did not hear direct evidence of the Child’s views and wishes.

77We heard evidence given by the Child in Care Worker for the Respondent, the Resource 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 Applicants’ home. She was thriving. Feedback from the CFSRB ordered access visits with the Applicants, their family members and the Child, indicate she is happy to see them and is at times reluctant to separate from them. The Society submitted contact notes from all of the supervised visits that have taken place from May to July 2019. The Child was consistently happy to see the Applicants, was excited to see the Foster Brothers (who were integrated into some of the visits as of June 2019) and responded positively to Nana. KV testified that at the end of the visits she asks to go home with them. The Society has implemented strategies to facilitate the transition back to the current foster parents. At the end of the visits the Applicants reassure the Child that they (and the Foster Brothers) will see her soon, which usually has a calming effect.

The Child’s Physical, Mental and Emotional Needs

78The Child was described by many as happy and social. Generally, she is in good health having only experienced various upper respiratory ailments, which have been successfully treated by her family physicians.

79Concerning development, the Child was found to have a speech and language delay. The Child’s Worker testified that it was KV who identified these issues and was proactive at ensuring they were assessed, even arranging through consultation with the Family Doctor for private therapy during the waiting period for the public agency.

80On July 3, 2018, the Child underwent a Speech-Language Pathology Assessment at a public agency. The findings indicated concerns with expressive language, and due to unspecified “risk factors”, continued monitoring was recommended for speech/articulation and receptive language. The most recent follow-up with this agency was done on April 29, 2019, at which time receptive language was found to be a strength, but concerns were still noted in expressive language, as well as in speech/articulation. A list of goals was established with follow-up to be implemented by the foster parents. The next step identified was for small group sessions to occur.

81A report from a private Speech-Language Pathologist dated July 10, 2019 indicated significant improvement since beginning private sessions on March 15, 2019. Improvement in intelligibility was noted to have increased from ten to thirty percent, however this level is still below the expected fifty percent mark for a child of the same age. Speech articulation is still delayed however, and it is recommended that speech therapy continue.

82During assessment, it was also recommended that the Child attend daycare to further encourage communication skills. Prior to leaving the Applicants’ home, the Child attended daycare on a part-time basis. However, on the advice of the Child’s Attachment Therapist, this service was discontinued due to the unexpected move to a new foster home. Continuing daycare is anticipated in the Fall, to allow for adjustment time. This decision was recommended by the Child’s Attachment Therapist with the view to facilitate her settling-in.

83The Child has also been diagnosed with Hypermobility syndrome through the Children’s Hospital. KV was also the caregiver to notice this and insist on an assessment after she noticed the Child swinging her leg while walking. Strengthening through gymnastics was recommended and started while in the Applicants’ home.

84On March 5, 2019, the services of the Attachment Therapist were engaged to help the Child adjust after having been moved abruptly from the Applicant’s home and having all contact with them stopped by the Society. The move was very impactful, as it was the only home the Child had ever really known. The Child was reportedly upset and crying, not eating well, having broken sleep, and developing medical issues including a fever.

85The Attachment Therapist has also been involved with the current foster parents and the Applicants to plan a smoother reintroduction of the Applicants and their immediate family in the access visits directed by the CFSRB, which began in May 2019. The Child seems to be benefitting from having contact with the Applicants, creating a link to continuity, but transitions at the end of access visits are becoming difficult because she seems reluctant to end the visits. Testimony of the Attachment Therapist advises that disruption in caregivers has a cumulative effect and it is likely the Child will need further assistance with upcoming changes.

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

86The Home Study describes the Applicants’ relationship as strongly committed and supportive where they have common goals and a love of family. The Foster Brothers are 9 and 7 years old and are described as welcoming and accommodating of new children in their home. In addition, they are surrounded by an extended family that includes KV’s mother, Nana, who lives in a separate suite in the house. All view the Child as part of the family.

87Prior to February 15, 2019, the Child had lived with the Applicants for the longest period of her life. The social history of the Child notes that as recently as January 2019 she was described as being closely attached to both Applicants and that their interactions were noted to be positive. The Resource Worker testified that she was supportive of the Applicants’ adoption plans for the Child. The Home Study states that the Applicants were encouraged by the workers at the Society to consider adopting the Child as they felt she was a good match for the family.

88The evidence is consistent that the Child has been an integral part of the Applicants’ family. They travelled together to Florida in October 2018 and as recently as January 2019, travelled to the Dominican Republic. The Foster Brothers treat CH as their sister and, as stated in the Home Study, are excited about the possibility of CH being adopted by the family. Nana was also interviewed for the Home Study. She was described as an affectionate and nurturing grandmother who is supportive of the adoption plans and believes that the Applicants can provide skilled care and attention to CH and be a strong advocate for her needs.

89As noted above, the Applicants were required by the Society to put into place a 24-hour supervision plan to permit CH to remain in their home during the investigation related to AR. This plan engaged members of the Applicants’ extended family to provide around the clock supervision with at least one and, at times, two people present in their home. At the very least, this clearly demonstrated the full integration of the Child as part of the Applicants’ extended family and their full commitment to the Applicants’ adoption of her.

90The evidence is also clear that the removal of the Child from the Applicants’ home was a traumatic experience for her. The Child’s Worker testified that on her first visit with the Child in the new foster home, the Child seemed unsettled, called her mommy and was easily distracted. The Family Doctor saw the Child on February 21, 2019 and expressed concern about her appearance. She described her as being in shock and very much changed from the happy, bubbly child that she had seen previously. She contacted the Society to express her concerns about her care.

91As noted above, the Society retained an Attachment Therapist to help the Child adjust to the change. She testified that on her first meeting with the Child, she presented as somebody who had come from a stressful situation, with poor social boundaries, readily going to strangers. Her report describes her behaviours as being consistent with shock and trauma. KV provided the Society with a photograph album for the Child and the Attachment Therapist testified to the positive reaction that the Child has to it. The evidence is also that she enjoys her visits with the Applicants and their boys.

92While not biologically connected to the Child, the Applicants, Foster Brothers and Nana are her family. Notwithstanding the Child’s young age and the lack of contact for three months, at a recent access visit, the Child requested that Nana create six playdough balls. The Child verbalized the name of every member of the Applicants’ family, including herself by pointing to each ball individually.

Continuity of Care for the Child

93As noted above, the Society argues that in the interests of continuity of care for the Child, the CFSRB should confirm their decision and not subject the Child to another disruptive move. The Society did exercise discretion in considering continuity of care when it allowed the Child to remain with the Applicants during the investigation. However, on their decision to verify a protection concern the Child was abruptly removed from the Applicants’ care, from a family where she was attached and well cared for and from a situation that had 24-hour supervision in place. We heard evidence of how placement changes, particularly for the purposes of adoption, are generally done gradually to allow the child to adapt to the change. The Society refused the Applicants’ request for such a transition.

94While the Applicants repeatedly asked for access, stating it was in the Child’s best interests, their request was denied. They are not biologically connected to the Child, and the Society took the position that there was imminent risk of harm, and access would be too confusing for the Child. The Society’s conclusion led to a decision that failed to facilitate a transition that would have been in the Child’s best interests, by either leaving her in the home under supervision while facilitating an introduction to a new placement, or by providing access to the Applicants. We heard submissions from the parties about the Applicants’ requests for access to the Child on the first day of the hearing on April 29, 2019, and made the following interim order,

By April 30, 2019, the parties shall confirm in writing to the CFSRB, the current and/or proposed access plan between the Applicants and the Child from the present time and until this matter has been completed (within 30 days of July 25, 2019 – the anticipated final day of the hearing).

95All visits have been supervised by Society workers and were coordinated in consultation with the Attachment Therapist. The CFSRB heard evidence of how those visits have been generally positive and child focused, with the gradual introduction of the Foster Brothers and Nana. Some minor tensions were reported with the current foster family but generally all the adults have made significant efforts to facilitate smooth transitions for the visits.

96Further, the Society, while suggesting that the current foster family is a strong contender for adoption of the Child, has not presented this as a permanent plan. The Society was directed that if they intended to provide evidence about an alternate adoption placement, they were to produce the Adoption Home Study for the proposed adoptive parents. This issue was canvassed again at the commencement of the hearing on June 23, 2019. The Society did not produce the Adoption Home Study for the current foster parents.

97Given various concerns raised by the Family Doctor, notes in an emergency room report and concerns communicated by a family member about the lack of experience of the current foster mother, we understand the Society’s decision not to confirm this as a permanent plan. It may be premature for the Society to conclude that if the Application had been dismissed, the Child would be placed for adoption with the current foster parents. In the absence of reviewing the Adoption Home Study, on the basis of the Service Director’s testimony that a final decision has not been made respecting any alternate adoption placement, the CFSRB concludes that the Society has not committed to a permanent plan for continuity of care with the current foster parents.

98In other words, in the absence of an Order rescinding the Society’s decision, the Child may face another placement change before achieving a forever family. The risk of a placement change and the subsequent trauma of moving the Child to a fifth home cannot be ignored. In so concluding, we acknowledge that this Application does not ensure the Child’s adoption by the Applicants, as the adoption itself will ultimately be a decision for the Court.

99Continuity of care with the Applicants, while disrupted by the Society’s decisions, can be achieved by returning CH to the Applicants. Given the high quality of care that was provided by the Applicants over the 22 months, that she was in their home, we accept that she will once again receive the love, care, parenting and from a family with whom she felt belonged.

100The Attachment Therapist, in her testimony, confirmed that the Child will experience some level of disruption regardless of our decision. She testified that the impact of the move from the current foster family will be the change from her current routine and what she has become familiar with in the current home; while the impact of remaining there would have been the grief and loss of the Applicants and their family again.

101The Applicants have stated that they will do whatever it takes to make any transition smooth for the Child. They would like to keep the current foster parents in the Child’s life to model that adults do not leave. Their promised approach is in keeping with the recommendations of the Attachment Therapist who has developed and encouraged a child focused approach to the access visits that have taken place.

Quality of care, attachment, risk of harm and the homestudy

102Generally speaking, foster parents are held to a high standard in their care of children, and for good reason. They are entrusted to look after children who often have high needs or have experienced significant trauma, not the least of which is removal from their parents. In this case, mistakes were made by all parties. The Applicants were forthcoming in their acknowledgement of the mistake they made in their judgement that the game of throwing children in the air, a game that is quite common for many families, did not pose a risk to children. It clearly did in the case of AR. Mistakes were also made in the diligence of documenting the admission medical by both the family physician and KV. However, the Society must also bear responsibility where children are removed in stressful circumstances. The professionals in this case let the children and the foster family down by failing to follow up on the information provided to them about the bruising on the child brought into the care of the Applicants on November 22, 2018 and failing to exercise good judgement in the investigation that ensued.

103The Society did exercise discretion prior to the report of the Children’s Hospital to preserve the Child’s attachment needs. But rather than continuing to exercise judgment based on years of experience with the Applicants, the Society chose to precipitously remove the Child from a loving, stable home causing her great disruption and trauma.

Conclusion

104In these circumstances, after considering all the evidence, we are satisfied any risk of harm to the Child has been addressed and resolved. The evidence shows that SV has learned from this experience and will not engage in his game with the children again. KV has also learned from this experience and can be expected to be vigilant in her documenting and reporting going forward.

105We find the Applicants are capable of supporting a child through adoption and the Child in particular. This finding is consistent with the Home Study.

106We are therefore satisfied it is in the Child’s best interests that she be placed with the Applicants for adoption. We rescind the refusal of the Applicants’ adoption application.

Order

107On August 1, 2019, the CFSRB issued an order rescinding the Society’s refusal to place the Child for adoption with the Applicants. The CFSRB ordered as follows:

Having heard the evidence and the submissions of the parties, the Child and Family Services Review Board (CFSRB) orders:

1. The decision of the Society to refuse the application of the Applicants to adopt the Child is rescinded.

2. The Child shall be placed for adoption with the Applicants by no later than August 14, 2019.

3. During the transition period prior to August 14, 2019, access visits with the Applicants and the Child shall be increased to facilitate the transition and as directed by the Society. (It is recommended that the Society consult with [TB, the Attachment Therapist] with respect to the transition plan).

4. The CFSRB will remain seized for matters relating to the implementation of this decision.

The CFSRB recommends that the individual(s) assigned to implement the transition plan and oversee the adoption probation period be professionals who have not previously been involved with the Applicants. The recommendation is made in the best interests of CH, and to ensure that the Applicants have the best working relationship possible with the Society.

Confidentiality Order

108Pursuant 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.