LKS v. Children’s Aid Society of Hamilton, 2022 CFSRB 9

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LKS

Applicant

-and-

Children’s Aid Society of Hamilton

Respondent

DECISION

Adjudicators: Michele O’Connor, Daniel McSweeney, Silvia Novak

Date: February 11, 2022

Citation: 2022 CFSRB 9

Indexed As: LKS v Children’s Aid Society of Hamilton (CYFSA s.192)

APPEARANCES

LKS, Applicant

Self-represented

Children’s Aid Society of Hamilton, Respondent

David Sider, Counsel

Introduction

1This is an Application filed 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 Children’s Aid Society of Hamilton (the “Respondent”) refusing her application to adopt MH (the “Child”), born on […], 2017.

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Child and Family Services Review Board (the “CFSRB”) is whether the decision of the Respondent is to be confirmed or rescinded after consideration of the best interests of the Child.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 Hearing proceeded on January 11 and 14, 2022 through the ZOOM videoconferencing platform.

5The Respondent Society presented evidence from Developmental Paediatrician, Dr. Benjamin Klein; the adoption worker, J.B.; and the child’s current foster mother, T.N.

6The Applicant testified, as did her sister D.F; her friend and fellow foster parent, G.P.; her worker for the adult placed in the home, N.M.; and one of her former foster children, S.S.

7Both parties filed and relied on documentary evidence.

8Dr. Klein’s Developmental Paediatric Assessment Report dated October 15, 2021, and his CV were filed as Exhibits by the Respondent. He was qualified without objection to testify as an expert witness.

9The CFSRB issued an Order on January 17, 2022, confirming the Respondent’s refusal with reasons to follow. These are our reasons for that Order.

BACKGROUND

10The Applicant is the former foster mother of the Child. When the Child was two days old she was placed by the Respondent in the foster home of the Applicant and her husband which they shared with their 3 children as well as an adult with special needs. Currently the Applicant’s children are 16, 12 and 8, and all three have special needs. In August 2019, the Applicant’s husband died from cancer.

11On October 21, 2019, the Applicant requested to adopt the Child. On October 25, 2019, the Respondent replied, advising the Applicant that it was currently exploring adoptive families for the child and would include her application in the pool of potential adoptive families.

12On November 7, 2019, the Applicant sent the Respondent an email withdrawing her request to adopt the Child, writing, “I apologize if I have delayed anything, This is all I have been thinking about day and night”.

13In December 2019 the Applicant again advised the Respondent of her desire to adopt the Child.

14On January 8, 2020, the Applicant texted her worker to advise she did not feel she could proceed with adopting the Child and that her children were “escalating” in their behaviour due to their bereavement. She indicated it would not be fair to her children or the Child to continue with the plan to adopt. She asked that the Child be removed from the home that same day.

15Respondent staff attended the home January 8, 2020, to move the child to the foster home of TN. The Applicant was reportedly distraught. The worker encouraged her not to make any decisions while she was in crisis and to view the move as a relief placement. They provided the Applicant with T.N.’s phone number.

16The Child has remained in this foster home since January 8, 2020. T.N. does not intend to adopt the Child.

17In March 2020, the police were called to the Applicant’s home after a physical conflict between the Applicant and her eldest son “V”. While police were present, the son expressed suicidal ideation and police brought him to hospital where he stayed for two weeks. The police reported the incident to the Applicant’s local Children’s Aid Society (not the Respondent) for follow-up.

18In early June 2020, the Applicant texted the Respondent to ask for a visit from her resource worker and for her home study to adopt the Child to be updated. Approximately three weeks later, on June 26, 2020, she received a telephone call from the resource worker during which she was informed not only that the Respondent did not support her request to adopt the Child, but also that the decision had been made to close her home as a foster home because of verified protection concerns and the challenges she faced in parenting her children with special needs.

19In October 2020, the Applicant applied to the CFSRB to review the Respondent’s refusal of her adoption request. A settlement was reached whereby the Respondent agreed to complete an adoption home study and to give notice to the Applicant if it intended to place the child with another family.

20The SAFE home study update was completed on December 1, 2020. The Assessor concluded that the Applicant met all Provincial Eligibility Standards and that she remains “approved for Adoption”.

21Between December 2020 and July 2021, the Respondent explored other possible adoption homes including two homes where the Child’s siblings reside.

22On October 15, 2021, the Respondent obtained an assessment of the Child’s developmental needs from Dr. Benjamin Klein. He diagnosed the Child with Global Developmental Delay (GDD) and noted the Chid presented with symptoms consistent with complex trauma.

23On November 12, 2021, Respondent staff invited the Applicant to meet with them, and they discussed with her some of the information they had learned from Dr. Klein’s assessment.

24On November 17, 2021, the Respondent advised the Applicant that it would not place the Child with her for adoption, and that another family had been identified as a match.

25On October 30, 2021, the police attended the Applicant’s home when she called 911 for assistance with her son who was exhibiting suicidal behaviour. She did not disclose this incident to the Respondent when they met on November 12, 2021. The Society worker learned of it (and of the ensuing protection investigation by the local Society) in December of 2021 while completing a CPIN records check. On December 21, 2021, the Respondent questioned the Applicant about the incident and why she did not disclose it. The Applicant was of the view that it was not relevant.

The Applicant’s Position

26The Applicant believes it would be in the child’s best interests for her to be returned to the Applicant’s family and placed with them for adoption. She feels she is best able to meet the Child’s needs and the Child is already a member of her family.

The Respondent’s Position

27The Respondent submitted that the Applicant is a good mother and the home study confirmed that she met all the provincial eligibility standards to adopt a child in Ontario. However, the Respondent believes it is not in the Child’s best interests to be adopted by the Applicant given the Child’s needs as identified in the recent developmental assessment.

the law

28To 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). The 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 importance of the child’s development of a positive relationship with a parent and a secure place as a member of a family,

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

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

viii) the effects on the child of delay in disposition of the case.”

analysis

29The CFSRB’s task when reviewing a decision to refuse an adoption application or remove a child from a long-term foster placement was explained by the Divisional Court in Family Youth & Child Services of Muskoka v. DM and CM, 2010 ONSC 6018 (“Muskoka”), as follows:

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.

30We determined that, in this matter, the relevant best interest factors for our consideration in section 179(2)(c) of the Act are:

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,

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

31Due to the Child’s young age and developmental issues, we did not hear evidence on her views and wishes.

32There are no known cultural identity or Indigenous connections under section 179(2)(b).

33There are no other known concerns or issues related to the remaining sub-sections of 179(2)(c) of the CYFSA.

The Child’s Needs and Level of Development

34Dr. Benjamin Klein is a specialist in Developmental Paediatrics. He was qualified without objection to give his observations as well as his expert opinion on the nature of the Child’s disability and what type of home environment will best meet her needs.

35Dr. Klein completed a comprehensive developmental assessment of the Child in October 2021. His report was entered into evidence. His diagnosis is that the Child has Global Developmental Delay (GDD), and she is functioning at a two-year-old level rather than her chronological age of four. He characterized it as “severe delay” and described her as a “high needs child” with a high probability that she will have disability for life.

36Dr. Klein also noted symptoms “consistent with complex trauma” based on the Child’s reported behaviours early in her placement with T.N. He was told that when the Child was initially placed, the foster mother observed her to be distant, not orienting to caregivers, engaging in repetitive behaviours such as headbanging, and limited dietary puree intake. T.N. confirmed these observations in her testimony.

37In Dr. Klein’s opinion, these behaviours suggest the Child has been through stressful experiences. He said it is not possible to draw firm conclusions as to the cause of the Child’s stress noting that it could have been caused by exposure to adversity prior to the move, or it could have been caused by the abrupt move alone. Regardless of causation, it signals risk and possible effect on the brain in terms of the Child’s emotions. It can resurface in terms of her mental health, so interactions between the child and her caregiver become more important for this child moving forward. He indicated that the Child would require a high level of individualized attention given the severity of her delays.

38According to Dr. Klein, the therapeutic strategy to address the GDD included having supports in place which are commensurate with the Child’s level of development; genetic testing; supportive measures within the education system; reassessment; and parenting that offers the Child a high level of individual attention and an understanding of complex trauma. Dr. Klein opined that the Child is at higher risk for developmental and mental health problems associated with a history of adverse psychological exposures.

39Dr. Klein concluded that the Child requires a home that is calm and consistent, and one which establishes and follows routines. The Child requires a parent/parents who are empathetic and nurturing and who can provide her with individualized attention and continuous advocacy. Dr. Klein indicated that any stressors or disruptions in the home environment were more likely to affect the Child’s emotional/behavioural functioning than they would with the average child.

40Dr. Klein was asked how the Child might respond to a return to the home she was in for the first two years of her life. He said it would be dependent on the caregiving and interactions in the home. “If interactions are not healthy and not consistent and empathetic and nurturing, I would expect a deterioration in emotional, behavioural functioning”.

41It is important to note that, at the hearing, the Applicant did not challenge Dr. Klein’s assessment findings, nor did she challenge his recommendations regarding the most appropriate home for the Child.

42The Applicant disputed T.N.’s observations about the Child when she was placed. She testified that, before the Child left her home, she was eating solid food, had established a positive attachment to the Applicant and her children, and was progressing in her development. She was ensuring the Child’s physical and developmental needs through referrals to occupational and speech and language therapy. She had previously noted some behavioural concerns after the Child returned home from respite, but these concerns quickly dissipated on return to her normal routines.

43Regardless of the cause of the Child’s delays and complex trauma, based on the evidence of Dr. Klein, the Board finds that the Child is a high needs child who requires a calm environment and a caregiver that is consistent and able to provide her with the individualized supports needed to optimize her development.

The Applicant’s Home and her Ability to Meet the Child’s Needs.

44The Applicant’s three adopted children all have special needs. Her eldest, V, has been diagnosed with Fetal Alcohol Spectrum Disorder (FASD) and various other mental health disorders for which he receives psychiatric treatment and medication. Her middle child, N., is very social, has FASD and attends counselling. Her youngest son, I., is diagnosed with both FASD and Autism Spectrum Disorder (ASD). She described her youngest as extremely attached to her and as having difficulties with separation. All three children have Individualized Education Plans. The Applicant has sought out services for all her children and has undertaken various trainings related to caring for children with special needs. The Applicant also provides care for an approximately 32-year old adult with developmental disabilities. This adult requires advocacy and support in relation to her own health issues.

45In August of 2019, the Applicant suffered the untimely loss of her husband. She testified that this caused escalations in her children’s behaviour (outbursts of anger, sadness). She was afraid that she would not be able to meet the Child’s needs. At the time she did not feel supported by the Respondent and made the decision to have the Child moved without consultation with Respondent staff or her own personal support network.

46In the Safe Home Study Update dated December 1, 2020, the assessor made the following observation about the Applicant’s request for the Child’s removal on January 8, 2020:

“L [ the Applicant] explained that given the emotional and behavioural struggles that I and V were experiencing towards the end of 2019, it seemed all of her energies were being consumed by this high level of instability. L further explained that I [her youngest child] was having issues with the psychotropic medication he had been prescribed and it was significantly affecting his behaviour. V, as well was experiencing accelerated mental health issues which ultimately lead to him having a crisis in March 2020. This situation led to a domestic altercation between L and V and the police were called and Halton CAS opened an intake investigation. They did verify for Caregiver Child Conflict/Child Behaviours. They offered services and the file was subsequently closed. The situation that was culminating in late December 2019, rendered L unable, in good conscience, to devote the high level of care and attention that she knew M needed for her to move forward with adoption.”

47The Applicant’s friend G.P. testified that she had never witnessed concerning events in the home. She knew there was some conflict with the eldest child. However, she felt this was normal teenage conflict. She was unaware the Applicant was contemplating having the Child removed from the home until after the decision had been made. She suggested that the Applicant may not have spoken to her about her concerns because she wanted to be strong and not a burden to others.

48The Applicant’s sister D.C. described her sister as a dedicated and capable mother to her three children as well as to children she had previously fostered. The sister provides support to the Applicant. The Applicant did not speak with her prior to asking the Respondent to remove the Child from her home on January 8, 2020. D.C. did attend the home that day to provide emotional support. She also attended following the incident in March 2020 between the Applicant and her eldest son. She confirmed that one of the Applicant’s other children was present and witnessed the incident. She also testified that the eldest child is “reactive” and can escalate quickly. She acknowledged he does continue to have mental health needs.

49The police report from March 2020 states that the Applicant described her eldest son as a risk to the other children and indicated there were physical confrontations almost daily. The Applicant testified that both this police report and the later report from October 2021, were inaccurate, reasoning police do not always tell the truth. The Applicant’s local Children’s Aid Society verified a child protection concern having found that the Applicant struck her son in the head with a video controller and that he had punched her in the face.

50During the hearing the Applicant did not deny these events happened, stating she “possibly” over-reacted and that everything happened very quickly. There were varying accounts of who called police. Not in dispute was that the children were present in the home on both occasions and witnessed either the physical altercation and/or the police attending the home.

51The evidence confirmed that the Applicant and her eldest son were involved in a physical altercation in the home which impacted on the remaining residents in the home. The situation was concerning enough for a family member to call the police. The Applicant was unable to control the situation from escalating to physical violence.

52We also heard evidence that the Applicant’s eldest son attempted suicide on October 30, 2021. The Applicant testified that the incident began with a dispute between the Applicant and V over laundry. The Applicant had turned off the internet in the home until V put away his laundry. V left the house and went to the garage. She said that V attempted suicide to show her how upset he was. The Applicant called 911. She indicated that there was no conflict in the house before she went to the garage, no yelling, and that the remaining children did not know what as going on. She does not feel this incident was relevant to the home environment or her ability to meet the Child’s needs.

53The case note filed by the Respondent provided additional detail on the incident. V was in the garage on a ladder with a rope around his neck watching videos on how to hang himself. The Applicant felt that the incident “wasn’t a big deal”. She believed that the police officer who reported the incident to Halton CAS was retaliating against her as she had called him on one of his comments and complained to his supervisor. The Applicant told the Adoption Worker that the suicide attempt was a cry for attention rather than a serious attempt. She noted that V has mental health issues and can be dramatic, and she said to the Adoption Worker “These things happen when you have children with these issues”.

54At the meeting of November 12, 2021, with the Adoption Worker, Supervisor, and Home Assessor, the Applicant indicated that her home was calm overall. She failed to mention that V had attempted suicide less than 2 weeks before and that her local CAS was investigating the matter. The Applicant was asked at the hearing why she failed to disclose this incident at that meeting. She explained her view that the referral and investigation should not have been made in the first place.

55This incident and the Applicant’s response to it raise several concerns. The Applicant disputed the fact that there is conflict in her home and stated that there is not any more conflict in her home than there is in any average home.

56In our view, the incidents between the Applicant and V raise serious concerns about her ability to manage. The physical assault and V’s suicide attempt are symptoms of conflict and reflect poorly on the Applicant’s ability to resolve it. Her continued efforts to downplay the seriousness of the incidents demonstrates a lack of awareness of the impact of conflict on children. Placing the Child in this home does not conform to the requirements outlined by Dr. Klein of a home that is calm and consistent.

57We conclude on the evidence before us that V’s mental health issues have affected and continue to affect the overall tone of the Applicant’s home. It has had an effect on the Applicant’s ability to provide care for her children and for the Child. V’s difficulty coping with the passing of his father and his grief was one of the reasons the Applicant decided to have the Child removed from the home in the first place. The physical altercation between V and his mother was observed by the children. V’s suicide attempt and the ensuing police attendance and children’s aid investigation would have had an effect on the family regardless of whether the children witnessed it or whether it was a genuine suicide attempt or a cry for attention.

58Although the SAFE home study update was favourable to the Applicant, we find that the conclusions therein were based on information prior to December 1, 2020. This was before the Child’s developmental needs were fully known and before the second police and children’s aid society involvement in October 2021.

59We considered the needs of the Child as well as an assessment of what environment would best support these needs. Two issues were determinative: the circumstances surrounding the Applicant’s decision to have the Child removed from her home on January 8, 2020; and the existence of instability in the home environment (physical altercation between the Applicant and her eldest son V on March 27, 2020; and Vs attempted suicide on October 31, 2021).

60Based on the evidence, it is clear to us that the Applicant’s current parental responsibilities are more than enough for her to manage. Each of her three children, as well as “A”, the adult placed in her home, have special needs including diagnoses which require ongoing medical and educational interventions. Their special needs and the resources available to the Applicant have not changed significantly since she asked the Respondent to remove the Child from her home.

61The Child’s needs are now known to be more complex. In addition, the Child will experience another disruption in her placement in the very near future which may traumatize her further. As noted by Dr. Klein in his testimony, “In general, disruption in someone’s main caregiver or attachment relationship is a significant stressor for any child. This child has a genetically caused developmental delay, and an emotional superimposed delay of uncertain cause. Given her current profile, she is at more risk than the average child for adversity, major disruption”.

62Dr. Klein also responded to questions about the Child returning to her former home. He responded “Assume it is healthy. If it is unhealthy, if interactions are not healthy and not consistent and empathetic and nurturing, I would expect a deterioration in emotional behavioural functioning and an impact on the child’s life.”

63The Board finds that, although the Applicant described her home as calm, there have been two crises which warranted police and CAS involvement in her home since she asked for the Child to be moved. The Applicant’s descriptions of these events to the Respondent staff and during the hearing, suggest she minimizes the impact on children in the home and on her availability as a parent. Her lack of insight into the seriousness of these events and how children would experience them lead us to question whether she fully grasps the Child’s needs and her capacity to parent this Child who Dr. Klein has recommended requires a consistent caregiver who is able to provide the child with individualized supports.

The Child’s relationships, emotional ties & continuity of care

64The Applicant testified that she did not contact the Child’s new foster parent despite the Respondent providing her with the phone number because she feared being reprimanded by the Society. She gave no evidence to support this assertion. She also explained that she felt she would burst into tears and did not feel this was fair to the new foster parent.

65We recognize that at the time the Applicant was probably still struggling with her grief and questioning whether it was in the child’s best interests to be with her family. However, we find that her decision to not attempt contact with the new foster parent was not focused on the Child’s needs.

66Furthermore, in May of 2020, when the Applicant renewed her efforts to adopt the Child, she still did not advocate strongly to reconnect with her. She testified that she reached out to the Respondent to request a socially distanced visit ‘once or twice”, but, after receiving no response, she abandoned any further attempts. We conclude that the Applicant’s commitment to the Child since she was removed from the home has been sporadic at best.

67The Applicant’s witnesses testified that the Child was happy in the Applicant’s home and a member of the family. Photos of the Child provided by the Applicant appear to support that premise. Prior to January 8, 2020, the Applicant and her children were the only family the Child would have ever consciously known. However, she has had no contact with the Applicant or her family since her removal over two years ago, more than half of her life. As such, we find that the Child’s relationship and emotional ties to the Applicant and her family were not significant considerations in our decision not to return the Child to the Applicant’s home.

68Regardless of whether the Child is placed for adoption with the Applicant or with the Respondent’s selected family, she will be moving again, so continuity of care, in this instance, is not a determining factor. Wherever she is moved, supports will be needed to ensure the change in caregiver is not experienced as a traumatic rupture.

69There was very little evidence before us about the family recommended by the Respondent. However, this information was not essential to our decision that it is not in the Child’s best interests to be returned to the Applicant’s home.

70The Adoption Worker testified that she has selected a two-parent family that has two children with no special needs. One parent is a teacher and has worked with children with special needs. The other parent is self-employed and has a flexible schedule. Both parents intend to take time off to assist the Child with the transition to their home. A set of grandparents live in a separate unit in the home for 6 months of the year and during those months they are available to assist. Other extended family members live nearby and are available to support the family.

SUMMARY

71The evidence before the Panel is that the Child requires a calm, supportive, and predictable home environment and a consistent caregiver who can offer the Child individualized attention and supports required to address her various disabilities. The Applicant has not been able to ensure a calm and predictable home environment over the past 2.5 years. We have also found that the Applicant has been challenged in handling her eldest child and dealing with the impact of her husband’s death on her and her family. Given that the family continues to experience challenges after the removal of the Child from the home, we find that the Applicant may not have the resources to provide the individualized attention and supports required by the Child. As such, returning the Child to the home is not in the Child’s best interests as the move would not meet her physical, mental and emotional needs and her level of development as a child with GDD and a history of complex trauma.

DECISION

72After considering all the evidence we find that the Respondent’s decision to refuse the Applicant’s request that the child be placed with her for adoption was in the Child’s best interests.

73The decision of the Respondent to refuse the Applicant’s request to adopt the Child, is upheld.

confidentiality order

74Pursuant 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.