JS v. Family and Children’s Services of Waterloo, 2023 CFSRB 54

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JS Applicant

-and-

Family and Children’s Services of Waterloo Respondent

DECISION

Adjudicator: Caroline Sand, Malcolm M. MacFarlane, Sara Mintz Date: July 05, 2023 Citation: 2023 CFSRB 54 Indexed As: JS v Family and Children’s Services of Waterloo (CYFSA s.109)

APPEARANCES

JS, Applicant Self-represented

Family and Children’s Services of Waterloo, Respondent Sarah Subhan, Counsel

FM, Child Valeria Ruoso, Counsel (OCL)

Introduction

1This is an Application filed on April 13, 2023 with the Child and Family Services Review Board (“CFSRB”) under section 109(8) of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”). JS (“the Applicant”) asked the CFSRB to review the Respondent’s decision to remove the Child FM from the Applicant’s home where he lived as a foster child from July 2019 to March 2023. At the time of the filing of the Application, the Child had already been removed from the Applicant’s home by the Respondent without the Respondent providing proper notice under CYFSA 109(7) and the Child was removed from the Applicant’s home contrary to CYFSA 109(16).

2The hearing on the merits took place by videoconference on May 25, 26, and 29, 2023.

3The Applicant testified. The Applicant called Amanda Ferrara, the Child’s therapist, who is employed by the Respondent in their sexual abuse treatment program, as a witness.

4Affidavits from the following witnesses were supplemented by oral testimony:

• Margaret Ngaling, the Child’s worker since November 2020
• Zisca Findlay, the supervisor of the Child’s worker Margaret Ngaling since November 2022
• Aaron Delsaut, Child Protection Worker
• Sarah Chapman, after hours worker
• Michael Chase-Weekes, Family and Community Worker
• JA, Child’s current foster parent from Cornerstone Home

5On June 7, 2023, the CFSRB issued the following order with reasons to follow:

1. The Respondent is directed to return the Child FM to the Applicant’s home forthwith and, in any event, by no later than July 5, 2023. The Respondent shall ensure that a transition plan is implemented to assist with the move.
2. The Respondent shall involve the Applicant, the Child’s therapist, Amanda Ferrara; the Child’s current foster parent, and any other appropriate professionals suggested by any of the above, to assist with the development and implementation of a transition plan.
3. The CFSRB will remain seized with respect to the implementation of this Order.
4. The Board’s full decision and reasons for this Order will follow.

6These are our reasons for the June 7, 2023 order.

PROCEDURAL ISSUES

7Before dealing with the substantive issues before us, the Panel notes two procedural issues.

Failure to Give Notice under CYFSA 109(7)(a)

8In an April 29, 2023 hearing, and in subsequent testimony during the merits hearing on May 25, 26, and 29, 2023, the Respondent acknowledged that it had failed to provide the Applicant with the statutorily required 10 days notice of intent to remove the Child under CYFSA 109(7)(a).

9The notice requirements in section 109 of the Act are mandatory and serve several important purposes:

10First, they notify foster parents of decisions that significantly impact their lives and the lives of children in their care. Second, they advise foster parents and prospective adoptive parents that they have a right to have those decisions reviewed by the CFSRB. Third, they provide clarity about the time period in which foster parents and prospective adoptive parents can apply to the CFSRB. That period is very short – only 10 days from when notice is received. This short time period ensures that children and families do not remain in a state of uncertainty for a prolonged period.

11If the Respondent had given proper notice, there would have been two possible outcomes:

1. Ten days would have passed without the Applicant filing an Application with the CFSRB. The plan for the Child to be moved to an alternate placement could have proceeded without delay or disruption; or,
2. The Applicant would have filed an Application with the CFSRB. The Child would have remained in the Applicant’s home until the CFSRB hearing concluded and the CFSRB made a decision as to which of the two competing plans was in the Child’s best interests.

Removal of the Child from the Foster Parent contrary to CYFSA 109(16)

12The Act is explicit that, subject to subsection (17) which addresses a risk that the child is likely to suffer harm during the time necessary for a review by the Board, the society shall not carry out the proposed removal of the child unless,

(a) the time for applying for a review of the proposed removal under subsection (8) has expired and an application is not made; or (b) if an application for a review of the proposed removal is made under subsection (8), the Board has confirmed the proposed removal under subsection (15).

13This statutory scheme is intended to avoid the very situation which has unfolded here: the destabilization of a child’s life while his ultimate placement remains undecided. As noted in NC v. Kunuwanimano Child and Family Services, 2018 CFSRB 28, at para 82, these provisions “promote the best interests, protection and well-being of children by ensuring that their placements are disrupted as little as possible.”

14In the current case, the Respondent’s failure to give proper notice and its improper removal of the Child from the foster home created a situation that was not in the Child’s best interests. The Child experienced two different placements during this period of uncertainty. The Child experienced the first placement as an entirely negative experience. His second placement has been more positive, and the Child may have formed new attachment bonds that will be disrupted. This required the Panel to also consider, weigh, and mitigate risk of harm to the Child from disruption of new attachments in making its Order. This situation would have been avoided had the Respondent followed the required statutory obligations.

15We have criticized the Respondent’s failure to provide proper notice of the Child’s removal from the Applicant’s home. The Panel did not, however, give any weight to this procedural failure in reaching our decision on the merits. Our decision regarding what action is in the Child’s best interests is based solely on the substantive evidence tendered at the hearing.

16We turn now to a review of the background, the relevant law and an analysis of the evidence and submissions before us.

background

The Child

17In terms of religious affiliation, the Child identifies as Christian (Baptist).

18In terms of cultural and racial heritage, the Child identifies as Black of African descent.

19The Child, presently 10 years old, entered into the care of the Respondent in 2018. He was transferred from another foster home to the home of the Applicant on July 4, 2019 at the age of six. The Child and his older sibling were placed with the Applicant, however this sibling was soon after moved to a foster home in the Brampton area as both siblings together were a challenge for the Applicant to manage. Although the Applicant testified that the Child’s behaviours were more challenging than that of his sibling, she stated that she felt a strong connection to the Child. The Child has continued to have periodic visits with his sibling in Brampton, as well as with other siblings in the Waterloo area and video visits with siblings in the Edmonton area.

20The Child has demonstrated behavioural challenges during his time in care, and specifically while living with the Applicant. The Child has a history of trauma and abuse with his biological family and has witnessed partner violence. He is diagnosed with Oppositional Defiant Disorder (ODD), Attention Deficit Hyperactivity Disorder (ADHD), Conduct Disorder, and recently hospital staff raised concerns that the Child may have FASD, but this has not been diagnosed at the time of the hearing.

21Despite the above diagnoses, the Child is described by child protection worker Margaret Ngaling as “bright, caring toward his siblings and foster parent, has a great sense of humour, outgoing, active, creative with art and colouring, loves to dance and move around, uses fitness to calm his body, has a solid memory, does well with positive reinforcement, and enjoys one on one time with staff at school.”

School Issues

22The Child has displayed behavioural issues at school. These issues led to him being placed in a therapeutic school program at Lutherwood for a period of approximately two years. As his second year came to a close, Lutherwood advised that they believed the Child had received maximum benefit from his time in their program and that it was time for him to be transferred back to the regular school system. This transition began in September 2022.

23The Child was transferred to a specialized classroom in the local school. The Child’s behaviours began escalating in the new school by the end of September 2022. These school difficulties ultimately led to a situation where by February 2023, the Child was only attending school about one hour a day. This resulted in considerable demands on the Respondent and the Applicant for childcare during the day.

24Both the Lutherwood staff from the previous therapeutic school program and the Child’s therapist Amanda Ferrara attempted to provide supports to the local school for the Child’s behavioural difficulties, however that school was apparently reluctant to follow the guidance and recommendations offered. These included having a quiet time and space where the Child could withdraw from the noise and busy state of the classroom.

The Foster Mother

25The Applicant is a single foster parent. She works full time, which includes working every other weekend both Saturdays and Sundays, as well as some statutory holidays.

26The Applicant works as a developmental services worker in a setting with a client population that includes individuals with diagnoses similar to that of the Child such as ADHD, ODD, Conduct Disorder and FASD.

27The Applicant has completed education in a developmental services program. She has also worked in a number of youth services organizations, including with young offenders.

28Given the Applicant’s work schedule, the Respondent has paid for before and after school babysitting services for the Child. The Child would attend at the same babysitter weekdays and on weekend days when the Applicant was required to work.

29The Applicant is racially and culturally matched with the Child.

30The Applicant has participated in a number of foster parent training activities offered by the Respondent.

31Early in the Child’s placement with the Applicant, the Applicant’s family was a significant source of support for her. Over the course of the last year this source of support has become exhausted and less available.

32Starting in January 2021, the Child received services from the Respondent’s family support worker Michael Chase-Weekes who acted as a positive Black male role model for the Child and provided outings for the Child on Tuesday and Thursday evenings as well as Saturdays. These services were subsequently reduced by the Respondent adding to the Applicant’s feelings of lack of support.

33The Applicant testified that she was promised increased supports by the Respondent on a number of occasions, but that these supports never materialized. She expressed the view that if she had received more supports, the situation would never have escalated with the Child to the point it did where she felt overwhelmed.

34As an example of the lack of support received from the Respondent, the Applicant testified that during the four years that the Child has been placed with her, she received no respite supports despite her requesting them until Fall 2022. In the Fall she was provided with some weekend respite as a result of her advising the Respondent that she was increasingly exhausted and unable to cope with the demands of the Child’s escalating behaviour problems.

Situation leading to Respondent ending foster placement

35Although the Child has demonstrated behavioural issues since originally placed with the Applicant, the Applicant reports that she was able to cope with the demands of the Child’s behaviour, despite what she perceives as a lack of support from the Respondent, until the Fall of 2022.

36As previously set out above, in September 2022 the Child was moved from the Lutherwood therapeutic school program to a specialized classroom in the local school. At this time the Child’s behaviour began to deteriorate both at school and at home.

37During this period the Child was also undergoing adjustment of medications that may have contributed to this deterioration in behaviour.

38Throughout Fall 2022, the Applicant was expressing to the Respondent that she was reaching the limits of her ability to cope with the Child’s behaviour and that she needed respite services; however, due to limited resources, the Respondent was unable to provide the level of respite care requested.

39As the Child’s behaviours escalated, childcare supports that had been in place for some time began to break down.

40The Applicant reported to the Respondent worker Margaret Ngaling in November 2022 that due to the Child’s behaviours, she no longer had some of the family supports she had relied upon over the past several years of the Child’s placement.

41In December 2022, the Child’s regular babysitter went on a 7 week vacation. There were difficulties finding replacement childcare as the Child’s behaviours were escalating.

42In mid-December 2022, the Respondent arranged a respite placement for the Child which was not successful due to the Child’s behaviour. The respite foster parent requested that the Applicant come and pick up the Child during respite, which she did.

43In February 2023, there was an incident at the Child’s regular babysitter’s home that led to the babysitter calling the police and refusing to care further for the Child.

44At this time, the Child was only attending school one hour per day, as was dictated by the school. This placed further pressure on limited childcare resources.

45On December 24, 2022, the Child threatened the Applicant with a hammer. Police were called and the Child was taken by police to Grand River Hospital where the Child was admitted to the Child and Adolescent Inpatient Mental Health Psychiatric Unit (CAIP). The Child remained in this unit from December 24, 2022 to January 26, 2023.

46An after hours worker, Aaron Delsaut, communicated with the Applicant during the December 24, 2022 crisis and the Child’s admission to the hospital. Aaron Delsaut asked the Applicant if she could support the Child at the hospital or if she had a friend who could support the Child. According to the Affidavit of Aaron Delsaut, the Applicant replied, “No. I am all alone to try and support him.” The Applicant initially stated, “I just want to be by myself right now,” but on follow up by Aaron Delsaut later that day, the Applicant advised that she had already reconsidered her position and was on her way to the hospital. She advised Aaron Delsaut that she was unable to have the Child discharged to her but would stay at the hospital to support the Child in admission to the psychiatric inpatient unit.

47Although the Applicant initially expressed that she was unable to support the Child at CAIP due to being exhausted and overwhelmed by the Child’s behaviours, she ultimately followed through with supporting the Child during his stay in the hospital, visiting daily.

48Upon discharge, the Child returned to the Applicant’s home. Given the lack of available childcare options, the Respondent’s staff picked the Child up from the Applicant’s home before she left for work, Respondent workers cared for the Child at its office, took the Child to school for the one hour of daily time in the classroom that the school board offered, and continued to provide childcare for the Child until the Applicant returned home from work.

49This pattern continued until March 3, 2023 at which time plans for a respite weekend broke down due to transportation issues caused by inclement weather. The Respondent placed the Child at Delavan Homes (“Delavan”).

50The Applicant indicates that she was advised on March 3, 2023 that the Respondent would not be returning the Child to her care. It was not clear when the Respondent made the decision to discontinue the Child’s placement with the Applicant. The testimony of various witnesses provided a timeline of somewhere between March 3, 2023 to March 5, 2023, the Respondent decided to discontinue the placement, although no notice was sent and no one confirmed a precise date. The Respondent did tell the Applicant it wanted her to remain a significant figure in the Child’s life despite the Child not being placed with her.

51The Child remained placed at Delavan from March 3, 2023 until he was unilaterally moved by the Respondent to Cornerstone Homes (“Cornerstone”) on April 21, 2023, where JA is the foster parent.

52During the Child’s placement at Delavan, the Applicant visited the Child on several occasions.

Foster placement at time of merits hearing

53The Child has been placed at Cornerstone since April 21, 2023. This home is described as using a hybrid foster parent and staff model. The Child is placed with one other child who is slightly older, age 12.

54The foster parent and staff at Cornerstone are racially matched with the Child. Staff are trained as child and youth workers and developmental services workers and the foster parent also has training in social services and a number of years of experience in working in different group homes, although he has only been a foster parent for about nine months.

55The Respondent stated that it intends to engage in further permanency planning for the Child. JA stated that there was no time limit on how long the Child could stay at Cornerstone.

56Following some initial adjustment difficulties with following household rules, JA testified that the Child is settling in well and that there have not been any significant behavioural issues of concern. The Child has not been in school or engaged in any educational curriculum since arriving at Cornerstone.

57Cornerstone staff and foster parent are in the process of trying to arrange a suitable educational placement for the Child, however it was not clear at the time of the hearing what the local school board may have to offer in the way of educational programming that would meet the Child’s needs. JA testified that Cornerstone is able to support any educational programming that the school board can offer.

58With a hybrid staff/foster parent model, Cornerstone staff do not anticipate any need for respite.

59The Applicant and Child had two visits, one hour each, since the Child was placed at Cornerstone. JA testified that he was willing to facilitate contact with the Applicant as approved by the Respondent.

60The Child is reported to remain attached to the Applicant and initiated telephone calls with the Applicant on a daily basis.

the law

61The Panel must determine the best interests of the child as set out in s. 74(3) of the Act:

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

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained; (b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and (c) consider any other circumstance of the case that the person considers relevant, including, (i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, (ii) the child’s physical, mental and emotional level of development, (iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, (iv) the child’s cultural and linguistic heritage, (v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, (vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community, (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, (viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, (ix) the effects on the child of delay in the disposition of the case, (x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection. 2017, c. 14, Sched. 1, s. 74 (3).

analysis

62The 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.

63The Panel considered all of the factors in s. 74(3) and found that the factors discussed below were most relevant to our determination.

(a) The Child’s views and wishes

64In this case, the Child was represented by Office of the Children’s Lawyer (OCL). OCL counsel submitted a statement by the Child dated May 22, 2023. In the statement at paragraphs 14 and 15, the Child expresses his wishes as follows:

“If I had the choice of where I would be, my first choice would be to be to live with [the Applicant]. My second choice would be to stay in Brampton until I could go back with [the Applicant]. I would like to tell the Board that I feel really sad and I want to go back to [the Applicant] because I have been bouncing around a long time and am sad about not seeing her. The best place is living with her. I have been through a lot and I want to stay there until I get out of the system.”

65OCL counsel made it clear in her submissions that it is the Child’s wish that the Respondent’s decision to remove him from the care of the Applicant be reversed and that he requests to be placed back in her care in accordance with his views and wishes.

66In its closing statement, regarding the Child’s expressed desire to return home to his “mom” the Applicant, the Respondent “submits that the appropriate weight be allocated given his age, needs and maturity.” The Respondent did not specifically state what weight they believed the Panel should give to the Child’s age, needs and maturity.

67The Respondent submitted that sections 74(3)(i) to (vii) are most relevant to this application, The Respondent specifically noted:

1. There is an opportunity to build on the Child’s bond with the Applicant in his current placement,
2. Maintaining the current placement eliminates the risk of future burnout or exhaustion that the Applicant previously encountered,
3. The current placement offers a consistent caregiver that has a number of around the clock supports, with the added benefit of providing a positive Black male role model,
4. The current placement is a long-term placement. [With respect to this item, although the Respondent’s Closing Statement indicated that Cornerstone is a long-term placement, evidence through testimony indicated that the Respondent was still exploring permanency options for the Child, which suggests the possibility of further placement changes for the Child in the future.]
5. The current placement is staffed by individuals who already have the training that is responsive to the Child's needs and diagnoses
6. The current placement is culturally sensitive and considers the Child’s race, colour and religion, and
7. The Child’s therapist Amanda Ferrara is able to continue her services to the Child in his current placement.

68In considering what weight to give the Child’s views and wishes, the Panel considered the Child’s age and ability to express truthfully what he wants. At age 10, the Panel is of the view that the Child is old enough to be able to clearly formulate and express his wishes regarding where he wants to live. There is no evidence before the Panel of cognitive limitations that would preclude the Child making an informed choice regarding this matter, and no party has submitted evidence that speaks to any such cognitive limitation. The Child does have behavioural and emotional regulation issues, however there is no evidence to suggest that these issues preclude the Child expressing an informed request regarding where he wishes to live. There was also no evidence presented that the Child’s wishes were inconsistent, untruthful or was more or less mature than his years. With respect to the Child’s needs, the Panel addresses issues related to a plan of care to meet the Child’s needs below.

69Given the above, the Panel is placing considerable weight on the Child’s views and wishes.

(c)(ii) Child’s physical, mental and emotional level of development

70The Child has had a psychoeducational assessment completed, however no evidence was presented at the hearing regarding the assessment’s content or conclusion.

71The Child is diagnosed with ADHD, ODD and Conduct Disorder and the possibility of a diagnosis of FASD was raised by hospital staff during the Child’s hospital admission.

72The Panel heard considerable testimony regarding effective interventions for addressing the Child’s physical, mental and emotional needs. The Child uses physical activity to manage his emotional reactions and to discharge hyperactive energy. The Child benefits from involvement in active physical and recreational programming. The Child normally responds well to redirection, however such redirection needs to take place early in the Child’s escalation cycle to avoid problematic and at times aggressive behaviours. As detailed during testimony, starting in the Fall of 2022, the Applicant was having difficulty intervening and redirecting the Child effectively early in the process due to her exhaustion and burnout. The Panel is of the view based on evidence regarding the Applicant’s training, work experience, and past successful management of the Child’s behaviours that the Applicant does have the skills and ability to successfully manage the Child’s behaviours with the proper supports in place.

73The Child is prescribed psychotropic medications to assist with managing his diagnoses and is being followed by a psychiatrist. A recommendation from CAIP was that the Child be referred to the Child and Parent Resource Institute (CPRI) for assessment and treatment. This recommendation is strongly supported by the Applicant and the Child’s therapist Amanda Ferrara, however the Respondent has not followed through with this recommendation. The CPRI is located in London, and as such would be easier to access from the Applicant’s home than from the Child’s current placement at Cornerstone in Brampton.

74In terms of emotional needs, the evidence before the Panel from the Child’s therapist Amanda Ferrara is that for the Child to achieve his potential, he needs safety in relationships. Amanda Ferrara describes the Child as happy to return home but distrustful of the permanence of the placement after experiencing multiple placements. He does not feel safe there as a “forever” home. Amanda Ferrara recommends attachment therapy for both the Child and the Applicant as a way of addressing the Child’s attachment issues and wounds.

75The Child is described by Amanda Ferrara as a “very different child” when things are going well. The Child has been exposed to and experienced extensive domestic violence and abuse. He needs continued trauma therapy, which his therapist Amanda Ferrara is currently providing. Amanda Ferrara testified that in-person therapy was preferable to video counselling, and that distance would be a potential obstacle to in-person therapy with Amanda Ferrara if the Child remained placed in Brampton. This contrasts with the Respondent’s submissions that there could be continuity of counseling with Amanda Ferrara at Cornerstone. Amanda Ferrara also testified that should the Respondent transfer responsibility for overseeing the Child’s care to another agency in Brampton, as an employee of the Respondent, she would not be able to continue seeing the Child and that she also would not be able to see the Child in her private practice as that would be a conflict. This raises concerns about the Child losing a significant attachment and therapeutic relationship with his therapist if he remains placed in Brampton.

76Amanda Ferrara testified that a plan for the Child’s educational needs is of major importance. She further testified that school issues were a major source of emotional dysregulation for the Child and that the Child was experiencing a great deal of anxiety around school. Amanda Ferrara stated that the Child’s behaviours escalated after leaving the therapeutic school program at Lutherwood, and that the Child was very anxious being in a program at the local school.

77Amanda Ferrara testified that the Applicant communicated with her regularly regarding the Child’s emotional and behavioural issues in both the home and school setting, and that she provided guidance for intervention. Amanda Ferrara expressed that the Child was strongly attached to the Applicant and that she believed continued contact between the Child and the Applicant was “crucial”. She expressed the view that with appropriate supports the Child could be placed back with the Applicant but acknowledged she “doesn’t have all the facts”.

78In testifying about appropriate supports needed to meet the Child’s physical, mental and emotional needs, Amanda Ferrara noted that such supports would be consistent with those she previously recommended to the Respondent in November 2022, which included:

1. Regular respite weekends for the Applicant
2. A volunteer or staff member such as the Respondent’s family support worker to support the Child
3. Someone to take the Child out two evenings a week, could be same volunteer
4. Attachment therapy for the Child and the Applicant
5. Supportive therapy for the Applicant

79Detailed further below are the plans offered by the Respondent and the Applicant for meeting the Child’s physical, mental and emotional needs, however from the evidence received in the hearing and reviewed above, the Panel noted the following:

1. The Child has attachment issues and has experienced a number of losses including removal from his biological family, removal from his previous foster home, and now removal from the home of the Applicant where he resided for four years, followed by a series of placements at Delavan homes and now at Cornerstone. These multiple placement changes are not in the Child’s best interest and contribute to the Child’s attachment issues.
2. The Child is strongly attached to the Applicant after four years of living with the Applicant and there would be impact of a loss of this attachment figure on the Child’s mental and emotional health.
3. The Child has strong attachment to his therapist Amanda Ferrara based on a four-year therapeutic relationship beginning in May 2019. Amanda Ferrara is clearly a significant support for the Child, and the Child’s placement in Brampton jeopardizes this important therapeutic support and raises the specter of another attachment loss for the Child.

80In reviewing the above, the Panel gives considerable weight to the Child being returned to the Applicant in order to maintain a positive four-year foster parent/child relationship. The Panel also takes into account the advantages to the Child being placed with the Applicant to maintain the therapeutic relationship with Amanda Ferrara.

(iii) and (iv) The Child’s race, ancestry, colour, and cultural heritage

81The Applicant identifies as Black and is racially matched with the Child. In her testimony, the Applicant shared that she has made regular efforts to educate the Child about and take pride in his African heritage. The Child has at times expressed that he “hated being Black”. The Applicant worked hard to challenge this type of thinking on the Child’s part and taught him about important Black figures and Black culture.

82Since 2022, the Child has been supported by the Respondent’s Harambe team, a racially matched team formed to support African-Canadians. The Respondent worker Margaret Ngaling, the supervisor Zisca Findlay and the family and community support worker Michael Chase-Weekes who were working with the Child and the Applicant were all part of this team.

83The Applicant and others who testified were consistent in indicating that the Child needed a positive Black male role model to identify with. The Respondent provided the services of the family and community worker Michael Chase-Weekes, who fulfilled this role. Several witnesses confirmed the importance of a positive Black male role model in the Child’s life. The Panel agrees.

84In his current placement at Cornerstone, the Child has a positive male role model in the form of a racially matched foster parent JA. The Child also has access to several Black male role models in the form of Cornerstone staff. JA indicates that he has actively worked with the Child to help him understand and identify with his African heritage and culture.

85The Panel finds that both the Applicant and the current placement at Cornerstone have the ability to meet the Child’s needs in terms of race, ancestry, culture and heritage. There may be a slight advantage in terms of access to positive male role models in the Cornerstone placement, however it is the Panel’s view that the Respondent and the Harambe team can provide a positive Black male role model for the Child to fulfil this need if the Child is returned to the Applicant’s care.

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

86The Panel notes that the Child has been placed with the Applicant for four years. Evidence before the Panel from a variety of sources including the Child’s therapist Amanda Ferrara, the Applicant, and Respondent staff is that the Child was, and remains, very attached and connected to the Applicant. Although the relationship between the Applicant and the Child was strained through the Fall of 2022 and the Winter of 2023 by the Child’s behaviours, the relationship between the Child and the Applicant remains strong as evidenced by the Child’s stated wish to return to the Applicant’s care, by the Child self initiating daily telephone calls to the Applicant from his current foster placement at Cornerstone, and by the Applicant’s determination in bringing this Application before the CFSRB to have the Child returned to her care.

87The Applicant is clear in her testimony that while she was feeling overwhelmed by the demands of the Child’s behaviours, what she wanted was for the Respondent to provide needed supports to enable her to cope with the Child’s behaviours, including respite care for the Child. The Applicant has testified that at no point did she refuse to continue caring for the Child, and that she fully expected the Child to return to her care following a respite placement at Delavan homes until she was informed by the Respondent that the Child’s placement with her was ended.

88The Child appears to have settled well at Cornerstone and made some positive connections with JA. Cornerstone provides a staffing model that reduces or eliminates the demand placed on the Respondent for respite care by the Applicant. Notwithstanding these, the Panel finds that the damage from disrupting a four-year parenting relationship with a Child with identified attachment issues outweighs the advantages to the Respondent of a reduced demand for respite care and other supports. Reduced demands for respite care on the Respondent do not factor into the best interests of the child test. Such supports are needed to make the Child’s placement with the Applicant a viable long-term placement for the Child.

89The Panel finds that this factor favours the Applicant, and also significant weight is given to it.

(vi) The Child’s relationships and emotional ties to family and community

90The Child’s positive relationship and ties to the Applicant have been discussed above. The Child has several siblings, including an older brother who is being fostered in the Brampton area with whom he has periodic access visits, and a sister in the Waterloo area who he has access visits with, as well as a sibling in Edmonton with whom he has virtual access visits. Visits between the Child and his biological mother are not currently taking place.

91Each proposed placement presents some advantages in terms of access to siblings. Cornerstone offers proximity for access to the Child’s brother, and the Applicant’s home offers proximity for access to the Child’s sister. Both the Applicant and Cornerstone are supportive of facilitating access. The panel finds that there is not a major difference between the two placement options in terms of supporting access to siblings, however we note that the Applicant has the advantage of knowing the Child’s brother, having originally fostered him 2019. The Applicant also knows the Child’s sister and has played a strong role in advocating for the sister around a difficult foster placement.

92Finally, the Child has lived in the Waterloo community for four years now and has formed attachments with other children in the area. The Panel finds that these attachments to the community are also disrupted by the placement change to Cornerstone. On balance, we find that the Child’s relationships and emotional ties to family and community are best served through being returned to the Applicant.

(vii) The importance of continuity in the Child’s care

93The Panel places a great deal of weight on the importance of continuity in the Child’s care. The Child has been identified as having experienced a number of significant losses. The Child’s connection with his biological mother was diminished when he was removed from her care. The Child no longer lives with his biological siblings and has relatively limited access to his siblings. The Child experienced a loss when he was moved from his initial foster placement to the Applicant’s care.

94Confirming the Respondent’s decision to place the Child at Cornerstone would result in the loss of a four-year caring relationship with the Applicant. Confirming the Respondent’s placement at Cornerstone would also risk the Child losing contact with his therapist Amanda Ferrara who has been his support and therapist for four years. For a Child with a history of trauma and attachment losses (as detailed in testimony by Amanda Ferrara), the change in placement to Cornerstone represents a significant loss that is likely to be highly destabilizing and may have long term negative effects on the Child. The Panel finds that the importance of maintaining continuity in the Child’s care by returning the Child to the Applicant’s care is of critical importance to the Child’s well-being. The Panel finds that the importance of maintaining the four-year bond outweighs whatever advantages the Child’s current placement offers.

(viii) The merits of plans for the Child’s care

95The Applicant’s plan for the Child’s care has the advantage of continuing a four-year fostering relationship with the Child. Returning the Child to the applicant will avoid another significant attachment loss. Finally, it avoids a potential loss of connection to the Child’s therapist Amanda Ferrara, and of peer connections in the Child’s community established over the past four years.

96In order for the Applicant’s plan to be viable, the Applicant requires supports from the Respondent. Specifically, and consistent with the recommendations of the Child’s therapist Amanda Ferrara, the Applicant is requesting the following from the Respondent to support her plan of care for the Child:

1. Respite care at least one weekend a month;
2. A volunteer or family and community support worker to take the Child out for activities two evenings a week; and,
3. The Respondent will continue to fund childcare for the Child before and after the Applicant’s work shifts, and when she is working on weekends and holidays.

The Panel finds that these are viable and reasonable supports for the Respondent to provide based on evidence that the Applicant originally had supports in the form of:

1. Weekday before and after school childcare for the Child as well as weekend childcare for weekends she was working
2. Supports from family and community worker Michael Chase-Weekes twice a week evenings and once on weekends, and
3. The Respondent was in the process of setting up weekend respites before the Child was hospitalized.

97In addition to the above supports, the Panel has made several recommendations below that it believes are important to supporting the Applicant’s plan of care for the Child.

98The Respondent proposes that the Child remain placed at Cornerstone, and Jabore Anderson stated that this can be a long-term placement for the Child.

99While there are merits to both parties’ plans, the Panel gives more weight to the importance of maintaining the Child’s four-year connection with the Applicant and avoiding any exacerbation of the Child’s attachment and other traumas through a disruption to this significant relationship.

100The Panel notes that the Applicant has demonstrated an ability to manage the Child’s behaviours and meet the Child’s needs for a period of four years. When the Child’s behaviour escalated in the Fall of 2022, the Applicant asked for support so she could continue her care of the Child. The Panel is of the view that the Applicant has the skills necessary to care for the Child and to carry out a plan of care for the Child if she is provided with adequate supports from the Respondent. In the Panel’s view it is unreasonable to expect that the Applicant go for the better part of four years caring for a child with high needs without respite. It is the Panel’s view that the Applicant’s plan of care for the Child is achievable with reasonable supports from the Respondent, and that the benefits to the Child of maintaining a four-year relationship between the Applicant and the Child is in the Child’s best interests.

CONCLUSION

101Having considered the best interests of the Child in this matter, the Panel finds that it is in the Child’s best interests to be returned to the care of the Applicant. The Child’s views and wishes in this matter are clear that he wishes to return to the care of the Applicant. The Panel places considerable weight on these views and finds no persuasive reason to discount them based on the Child’s age, maturity, or truthfulness.

102In terms of the Child’s physical, mental, and emotional needs, we find that these needs can be best met through a return to the Applicant’s care, and through preserving the Child’s four-year attachment to the Applicant.

103The Applicant and the Child are racially matched, and the Applicant has demonstrated an ability to support the Child’s embrace of a racial and cultural identity as an individual of African origins. The Applicant’s efforts in this regard can be readily supported by the Respondent providing a positive Black male role model.

104The Panel gives significant weight in making its decision to the importance of the Child developing a positive relationship with a parent and a secure place as a member of a family. The Panel finds that these needs are best met through maintaining the Child’s four-year relationship with the Applicant. Further, the Panel finds that the Child’s relationships and ties to siblings and other family members can be maintained through being returned to the Applicant’s care.

105The Panel places significant weight on the importance of maintaining continuity in the Child’s care and is concerned that the change of placement to Cornerstone will significantly increase the risk to the Child of further harmful attachment trauma.

106For the above reasons, the Panel finds that it is in the Child’s best interests to be returned to the care of the Applicant.

RECOMMENDATIONS

107The Panel makes the following recommendations:

1. The Child to continue in weekly therapy with his therapist Amanda Ferrara.
2. Consistent with recommendations from Child’s therapist Amanda Ferrara, follow through with a referral for attachment therapy for the Child and the Applicant.
3. Follow through with recommendations for a reassessment of the Child’s medications. Child’s therapist Amanda Ferrara to be involved in this process and collaborate with psychiatrist if possible.
4. The Respondent shall continue assessment processes aimed at clarifying whether the Child is diagnosed with Fetal Alcohol Syndrome Disorder.
5. The Respondent to ensure that necessary supports for the Applicant are in place to ensure the viability of the Child’s placement with the Applicant. Such supports may include, but are not limited to: a) Providing the Applicant with respite one weekend a month. If possible, that respite could take place at Cornerstone. b) Arranging for and continuing funding to the Applicant for before and after school childcare, as well as for childcare on weekends when the applicant is working. c) Providing the Applicant and the Child with a racially matched male support person/family support worker who can take the Child on outings twice on weekdays and once on weekends as was previously provided.
6. The Respondent to make a referral to the Child and Parent Resource Institute (CPRI) for the Child for treatment as recommended by the mental health program at Grand River Hospital’s Child and Adolescent Inpatient Mental Health Psychiatric Unit (CAIP).
7. The Respondent to work with the local school board to ensure that the Child receives access to education, as set out under the Education Act. This may involve advocacy for the Child with the school system, and treatment planning should involve the Child’s therapist Amanda Ferrara in the planning process.
8. The Respondent to share the results of the Child’s psychoeducational assessment with the Applicant and with the Child’s therapist Amanda Ferrara as well as with any other appropriate professionals.
9. The Respondent to implement training to ensure that all staff involved in decisions to remove a child from a foster home or to refuse an adoption application are aware of the notice requirements under the Act.
10. The Respondent to consider a fresh start with a new worker and supervisor.

order

108The Respondent is directed to return the Child to the Applicant’s home forthwith and, in any event, by no later than July 5, 2023. The Respondent shall ensure that a transition plan is implemented to assist with the move.

109The Respondent shall involve the Applicant, the Child’s therapist Amanda Ferrara, the Child’s current foster parent, and any other appropriate professionals suggested by any of the above, to assist with the development and implementation of a transition plan.

110The CFSRB will remain seized with respect to the implementation of this Order.

confidentiality order

111Pursuant 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.