GF v. Children’s Aid Society of Hamilton, 2022 CFSRB 43

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

GF Applicant

-and-

Children’s Aid Society of Hamilton Respondent

DECISION

Adjudicator: Daniel McSweeney Date: September 9, 2022 Citation: 2022 CFSRB 43 Indexed As: GF v Children’s Aid Society of Hamilton (CYFSA s.192)

WRITTEN SUBMISSIONS

GF, Applicant Self-represented

Children’s Aid Society of Hamilton, Respondent David Sider, Counsel

INTRODUCTION

1This is an Application filed with the Child and Family Services Review Board (“CFSRB”) under section 192 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”).

BACKGROUND

2The Respondent has been the caregiver for OF (the “Child”), since shortly after his birth in July of 2021. The Respondent adopted the Child’s sister some years before. The Child’s mother voluntarily agreed to place the Child with the Applicant. This plan was supported by the Respondent. The Applicant requested that the Child’s status be changed to kin in-care rather than kin service. This request was not supported by the Respondent as the Respondent was not willing to put forward a protection application before the Court. In addition, in her Application, the Applicant indicated that she had asked the Respondent repeatedly to have the Child placed with her through foster care.

3Early in the relationship between the Applicant and the Respondent, the Applicant expressed an interest in adopting the Child. The Respondent indicated to the Applicant that commencing a protection application was not appropriate as the Child’s mother had expressed a desire to work with the Respondent and an application would not increase the Child’s safety.

4The Child’s mother subsequently passed away. The Child’s paternity was questioned and was later clarified through a DNA test. The Child’s father informed the Respondent that he did not want any legal rights to the Child and that he wanted the Child to remain with the Applicant.

5The Applicant submitted an adoption application in early 2022 along with police record checks and fingerprinting. An updated home study was also pending.

6The Respondent had originally planned to pursue an Extended Society Care application following the Child’s mother’s death which would have allowed the Applicant to adopt the Child. This initial plan was not implemented for several reasons: the Child’s paternity had not been established; the Child’s birth was not registered; the lack of OHIP documents for the Child; the assumed cooperation between the Applicant and the Child’s father; the requirement for an approved home study and adoption application; and the fact that pursuing Extended Society Care was considered the last resort for a child welfare agency if another less intrusive option is available.

7On April 26, 2022, the Applicant was informed by Respondent staff that the Respondent decided to terminate its involvement with the Applicant and Child as there was no further work that could be done to improve the Child’s safety, well-being, or permanency. Respondent staff suggested that the Applicant could commence an application for custody with the Child’s father’s agreement, or she could arrange for a private adoption.

8The Applicant submitted an Internal Complaints Review Panel complaint (ICRP) to the Respondent on May 11, 2022. The Applicant and the ICRP Panel members met on June 2, 2022. On June 16, 2022, the ICRP panel issued a letter to the Applicant. This letter indicated the following in relation to the adoption application:

“We heard that you feel that the agency should pursue an Extended Society Care Application for OF and then proceed with an adoption process where you would become the adoptive parent instead of being a custodial parent. To reiterate, the agency is not pursuing an Extended Society Care application as there are no clear grounds for protection under the Child and Youth Family Services Ace with regards to O’s safety under your care. The child’s biological father has not presented a plan or asked for the child to be removed from your care. However, the panel recommends that the agency acknowledge and apologize for inconsistent and mixed messaging regarding this decision and the confusion it caused. Apologies were provided to you by both JM and CR during the ICRP process.”

9In her Application, the Applicant indicated that she received a written notice of the Respondent’s refusal of her adoption application on June 16, 2022.

10The issue of the CFSRB’s jurisdiction to review the Application was discussed at a Case Management Teleconference on June 30, 2022. The Respondent argued that the CFSRB did not have the jurisdiction to review the Application. The Applicant requested that the CFSRB proceed with the review.

11The parties were directed to provide written submissions on the jurisdictional issue which should address the following 2 questions:

a) Is the Child available for adoption?

b) Does the letter of June 16, 2022, constitute a refusal of an adoption application?

12The Applicant’s submissions consisted primarily of documents and written arguments supporting her assertion of wrongdoing by Respondent staff; her desire to have Respondent staff held accountable for the alleged wrongdoing; and her request that the CFSRB intervene in the alleged adoption refusal.

13With respect to the 2 jurisdictional questions identified above, the Applicant submitted that the Child was not placed in-care as Respondent staff led her to believe that financial support would be made available through kinship service. The Applicant indicated that the birth mother made no plans for the Child to be placed in kinship care as the Applicant was not considered kin. The Applicant argued that the Child was never placed in Extended Society Care as the Respondent changed its position for financial reasons rather than for reasons that addressed the well-being of the Child.

14The Applicant maintained that the Child was available for adoption and that the Respondent simply chose not to make an Application for Extended Society Care.

15With respect to the second issue, the Applicant conceded in her submissions that the refusal of the adoption was provided to her during a telephone call on April 26, 2022, prior to the ICRP.

16The Respondent argued that, for the Child to be available for adoption, he would first need to be the subject of a child welfare court application under the Act, and the Child would need to be found in need of protection pursuant to s. 74(2) of the Act. In addition, the Court would need to order that the Child be placed in the Extended Care of the Respondent pursuant to s. 101 of the Act.

17The Respondent submitted that the Child has never been placed in its care. The Applicant took the Child to her home as a kin caregiver at the request of the birth mother. The Respondent has never commenced a child welfare court application and the Child has never been found in need of protection. The Child has never been ordered by the Court to be placed in the Extended Care of the Society.

18The Respondent argued that none of the legislative pre-requisite eligibility stages were or are in place for the Child. As such, the Child was and is not available for adoption.

19With respect to the letter of June 16, 2022, the Respondent argued that the letter was not a refusal of an adoption application, rather, it was a letter authored by the Chair of the ICRP giving the Applicant the findings related to the Applicant’s written complaint. Such a response is required in the Regulations. The Chair of the ICRP is not an employee of the Respondent’s Adoption Department.

THE LAW

20Section 192 of the Act applies to a society’s decision to refuse an application to adopt a particular child by a foster parent or other person.

21Section 192 (11) of the Act outlines the CFSRB’s remedial authority in relation to an adoption refusal. The CFSRB can only confirm or rescind a society’s decision and give written reasons for its decision.

ANALYSIS

22I considered the CFSRB’s jurisdiction to review the Application and more specifically, whether the Child was available for adoption, and whether the letter of June 16, 2022, constituted a refusal of an adoption application? I must decide based on the facts before me.

23Firstly, the only evidence I have before me is that the Child’s father alone has the legal custody of the Child. I note that the birth father has indicated that he would like the Child to remain with the Applicant and does not want to remain involved in the Child’s life; however, in the absence of any other decision by the Court, the Child remains in the legal custody of his father. In addition, the father has not provided written consent for the adoption of the Child as per s. 180(2) of the Act.

24Secondly, before her death, the Child’s mother arranged to have the child placed voluntarily with the Applicant. This arrangement with the Child’s mother was never confirmed by the Court. In addition, the Child’s father has not consented to the Child being brought before the Court pursuant to s. 74(2)(h).

25Thirdly, the Respondent has not approached the Court to have the Child placed in interim or extended society care as, in its opinion, there is currently no reason for the Child to be found in need of protection.

26Finally, a child welfare agency has an obligation to engage in permanency planning once an order has been made placing a child in the care of a child welfare agency pursuant to s. 112 of the Act.

27I concur with the Respondent that the Child is not available for adoption given that the legislative prerequisites for adoption (Court finding that the Child is in need of protection, and order placing the Child in Extended Society Care) have not been fulfilled. Despite having engaged the Applicant in the adoption process, the Child was not available to be adopted as he was not placed in Extended Society care, and he remains in the legal but not physical custody of his father. As such, I find that there was no adoption refusal as the Child is not available to be adopted.

28If the Child was subject to an Extended Care Order, the outcome of the Application might have been different as the Applicant had made a clear and unequivocal expression to adopt the Child as early as one week after he was placed with her.

29Given that the Child was not available for adoption, the issue of whether the ICRP response dated June 16, 2022, is moot. Nevertheless, I note that the Applicant conceded in her submissions that she was informed of the Respondent’s intention not to continue with her adoption application in a telephone conversation dated April 26, 2022.

30The CFSRB’s remedial authority in relation to an adoption refusal is derived from section 192(11) of the Act which directs it to confirm or rescind a society’s decision to refuse an adoption application. As noted above, the Child is not available for adoption, therefore the Respondent was not and is not in a legal position to decide to refuse the Child’s adoption.

31Finally, it is important to highlight that the Applicant has provided excellent and loving care to the child. It is unfortunate that the situation evolved and changed as it did (the death of the Child’s mother and the delayed identification of the Child’s father etc.) and that miscommunication by some Respondent staff led to a lack of clarity between the Respondent and the Applicant.

SUMMARY

32In summary, the CFSRB does not have the jurisdiction to review the Application given that the Child was not available for adoption at the time that the Respondent communicated its intention to close the file and not to move forward with the Applicant’s adoption plan. The Child remains in the custody of his father. The Respondent has no intention to seek Interim or Extended Care for the Child. As such, I find that the CFSRB does not have jurisdiction to review the Applicant pursuant to s. 192 of the Act.

ORDER

33The Application is dismissed.

CONFIDENTIALITY ORDER

34Pursuant 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.