ONTARIO

SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM
PUBLICATION PURSUANT TO SECTION 45(i) OF THE CHILD AND
FAMILY SERVICES ACT.

B E T W E E N:

Family and Children’s Services of Frontenac, Lennox and Addington Applicant

Leanne Wight , for the Family and Children’s Services of Frontenac, Lennox and Addington

• and -

E.L.

Peter McCullough , Counsel for E.L.

• and - R.C. Respondents

R.C. Noted in default Apr. 1, 2010

Vince Ramsay , Counsel for the children, K.C., C.C. and S.C.

HEARD: May 29, 2012

RULING ON MOTION

Pedlar, J.

[ 1 ] This is a status review application brought by the Respondent, E.L., who is the mother of three children, K.A.L.C. (“K.C.) born […], 1998, C.L.M.C.E.C. (“C.C.”) born […], 1999 and S.S.A.E.J.C. (“S.C.”) born […], 2000.

[ 2 ] The respondent R.C. did not participate in these proceedings.

[ 3 ] In 2005 the children were made Crown Wards with access. A status review application was brought by the mother in 2007,and a cross application was brought by the Family and Children’s Services of Frontenac, Lennox and Addington (the “Society”) seeking Crown wardship with no access.

[ 4 ] In January 2009, the parties settled the status review application with consent Orders for Crown wardship, no access, for all of the children.

[ 5 ] Ten months after the consent Order for Crown wardship, no access, the mother brought the current status review application, seeking to have access restored. The matter has taken from early 2010 until now to proceed through the Court system.

[ 6 ] The parties agree that this application is governed by the provisions of s. 59 (2.1) of the Child and Family Services Act . The Act reads as follows:

“(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward unless the court is satisfied that,

(a) the relationship between the person and the child is beneficial and meaningful to the child; and

(b) the ordered access will not impair the child’s future opportunities for adoption.”

[ 7 ] The child S.C. is now 11 years old. He lived with his mother for the first three years of his life prior to the intervention of the Society. He was placed in a resource foster home until that placement broke down in 2008. He was then in a treatment foster care home from October 2008 until October 2011 when he moved to a resource home.

[ 8 ] Dr. Phil Carney conducted an assessment of S.C. in 2010 and concluded as follows:

“If we consider the evidence from my assessments alone [S.C.] is only now starting to develop trusting relationships with caregivers. I suspect he had and has an ambivalent emotional relationship with his mother. A return to access will typically put a child like him in a distressing position of torn loyalties. The ambivalence in his relationship with his mother becomes the source of an activated internal demand for loyalty to her. Whether and how much damage this might cause for his continuing development remains to be seen. The worry, however, is that his progress would be set back. I am not aware of evidence more conclusive that cited by Eagle, and so I am not able to say definitively that such would be the case. However, this possibility needs to be kept before the minds of everyone involved in the current decision-making process.”

[ 9 ] In the most recent assessment of S.C. conducted on August 2011, Dr. Carney stated as follows:

“In May 2011, S.C. was rated by his foster parents on an Adoption Readiness Scale…20 out of a possible 30. Since that rating in May 2011, a prospective adoptive family has come forward for S.C. He has met the people and reportedly hit it off very well with them….

When asked what he would like for himself for the future, he replied, “to be adopted”. He then spontaneously added that he was going for a sleep over with a friend of his foster parents. He has met these people. He then said with a big smile, “they want to adopt a kid the same age as me.” He noted that after the sleep over, he will go to their place for relief…

The outlook for S.C.’s continuing development in the social-emotional world is good. [His] development profile indicates that he is benefiting from the secure attachment context in which he has been living. …that S.C. is doing so well academically and developmentally is an outstanding tribute to the care he has received.

The news, overall, is very positive for this young man and his prognosis is good. …Whereas we were concerned that his prospects for adoption were somewhat risky in the past, the current results create considerably more optimism for a favourable outcome in that regard.”

[ 10 ] The evidence is that the proposed adoptive home is eager to receive S.C. as a permanent member of their family and that S.C. is connecting well, but the prospective adoptive parents are unwilling to proceed with the adoption if access to the natural mother is reinstated.

[ 11 ] C.C. is now 12 years old. Following the no access Order and final visit with her mother in early 2009, her behaviours escalated. Her placement broke down and she was moved to a staff-modeled group home on October 13, 2009. She was then placed in a treatment foster care placement where she has been since November, 2010.

[ 12 ] The evidence is that after some challenges experienced during the first six months or so in her new placement, she seemed to be doing quite well, but recent developments apparently linked, in time at least, to her involvement in these proceedings through visits with the Children’s Lawyer related to this application have resulted in the need to have her moved back to a group home. In her foster home placement she had inquired if they would be willing to adopt her. She is struggling emotionally and is very anxious and demanding.

[ 13 ] On October 18, 2010, Dr. Sian Philips provided a report regarding the possible effects on C.C. of a reinstatement of access with her mother and concluded:

“Opening up the relationship that she has worked so painfully to grieve and resolve at this time will jeopardize her progress and perhaps interfere permanently with her ability to develop successful attachment. Consequently, I feel that this would be considered unethical and in no way be considered clinically therapeutic.

C. knows that she is free to pursue a relationship with her mother when she is older. My hope is that she can continue to heal and when she is ready to see her mother, has the awareness and emotional maturity to balance her own needs to her mother’s. At age eleven she is not able to do this and is at risk of losing the gains that she has made if this relationship is opened up before she is ready to cope.”

[ 14 ] Although there remains active planning for an eventual adoption, in keeping with the statutory obligation of the Society, C.C. still has some emotional struggles and was on an elevated dose of medication to manage her symptoms, but that has now been reduced.

[ 15 ] The most recent report filed regarding C.C. is from Dr. Phil Carney and is dated August 8, 2011 and states as follows:

Patterns of this kind [of behavioural and emotional difficulties] being displayed by C. implicate early histories of any or all of neglect, chaos and abuse…At age 11 a critical window of opportunity still exists before she gets to high school and before her everyday world dispenses with the effort to understand her, falling back on a characterization of ‘bad attitude’.

The indications of overwhelming uncertainty experienced by C. in her everyday world are critical in the understanding by adults who deal with her…She urgently needs to trust adults as being the anchors of safety, willing partners in problem-solving dialogue and people who generally look out for her, rather than the other way around.

All of this, it must be emphasized, will take place in the context of a secure attachment relationship….In planning for C., therefore, the window of opportunity available over the next couple of years mandates very careful consideration to the attachment relationship context and to C.’s overall experience of safety in her everyday social emotional world.

[ 16 ] K.C. is now 14 years old. Her placement in a proposed adoptive home did not work out and she was moved to a staff modeled group home in December 2009 where her sister C.C. resided. K.C. thrived in the group home. Her behaviour dramatically improved and she did well academically and socially.

[ 17 ] K.C. accidently encountered her mother in the community and her behaviour has regressed. There have been further behaviour difficulties following the reintroduction of the Children’s Lawyer to this process as it led K.C. to suspect her mother had brought another court application.

[ 18 ] K.C. has engaged in some self injurious behaviour. She now recognizes that she needs counseling after some time and is currently on a waiting list.

[ 19 ] Dr. Carney’s report on K.C. dated November 22, 2010 concludes as follows:

“K.s anxiety is not being helped by the current turn of events [Ms L.’s request for reinstatement of access]….[I]n my literature review in the letter regarding S., the statement is made by Eagle (1990) that there is no clear evidence either in favour of or against access within permanent care. However, she adds caution: We simply do not know with certainty the developmental, clinical and environmental considerations which best predict when access is in the children’s best interests.

This caution should bring us up short. The question immediately looms as to how much risk we are willing to tolerate that exposing the child back to the persons/environment from [which] they were found in need of protection will continue the original damage and interfere with stabilization/healthy development. To this caution needs to be urgently added the notation that development or progress in the natural parent since the admission to Care, guarantees nothing. The child resumes the anxiety, uncertainty, confusion and whatever else was associated with that relationship. These remain in storage and are evoked in the presence of the person or situation that caused them.

The information we have about K.’s development and stability are tentatively positive. The presence of anxiety and ambivalence at the degree she expresses them are, however, very worrisome. The risk, in my opinion, is high that she would experience a significant set-back in her emotional-social functioning should access be resumed.

[ 20 ] The Children’s Lawyer reports that K.C. confirms she has had contact with her mother. Contact was both accidental and through the internet through a family member. She wishes contact with her mother and would initially like it in the presence of another adult, but if she has no visits, she states she will be upset or may be mad.

[ 21 ] The Office of the Children’s Lawyer also reports that C.C. advised that K.C. told her that she was having contact with her mother and C.C. wants contact with her mother as well. She also states it should initially be with another adult present. She doesn’t know if she would be disappointed, or not, if there were no contact.

[ 22 ] Based on concerns expressed by Dr. Sian Philips as detailed in the letter of May 22, 2012 filed with the Court, the Office of the Children’s Lawyer chose not to have counsel meet with S.C. based on the clinical concerns expressed by Dr. Philips.

[ 23 ] This family has a history with the Society dating back to 2003. The children have been continuously in care since that time. The Family Court Clinic assessment dated October 12, 2004 stated as follows:

“In conclusion, the C. children present with a history of behavioral difficulties, which, as the documentation from Pathways reveals, dates back to at least 2002. Their extreme neediness, and easy approach to

strangers, as described by the foster mother, raises serious concerns about attachment issues.

Ms. L. appears completely lacking in insight into the children’s needs. She relates a history of family instability with seemingly no awareness that the situation was problematic. Her own life appears completely disorganized. Ms. L. seems to take little control over her circumstances, but merely stumbles along. A high level of mobility has characterized her housing situation. Ms. L. indicated early in the assessment that she had been attending for academic upgrading. In later interviews, she said that she had not been to school in a long time because she could not find her work.

[One] is able to express strong doubt about either parent’s ability to meet the children’s needs. Ms. L. is unlikely to be able to provide the stability and security that the children require. One would strongly question her ability to prioritize the children’s needs over her own. Where Mr. C. would be more likely than Ms. L. to provide a reasonable living situation for the children, one would see his ability to recognize and respond to the children’s special needs as very limited.”

[ 24 ] A second Family Court Clinic assessment dated April 30, 2007 was authored by Rose Wenglensky, who had also prepared the report from 2004. Amongst her findings, Ms. Wenglensky states that E.L. does not appear to see the children as having special needs or emotional difficulties. She also states that “as before, she lacks awareness of the children’s emotional and psychological needs.” The results of the 2007 report were consistent with the 2004 assessment.

[ 25 ] The mother had moved to the Cambridge area in 2005. In June of 2009 a clinical psychologist, Dr. K. McDermott authored a report undertaken for the purposes of assessing this mother’s capacity to parent two step children and her new child that was one year old at the time. In the context of that report, Dr. McDermott also commented on the mother’s ability in relation to her older three children which are the subject matter of this motion.

[ 26 ] Amongst other findings, Dr. McDermott found the mother to be at high risk for:

“ -Misunderstanding the child’s normal developmental needs, lacking nurturing skill and being unable to handle parenting stress and;

• Tending to treat the children as confidantes and expecting the child to provide her with love, assurance and comfort.”

[ 27 ] Dr. McDermott further notes:

When E. L.’s historical information and current presentation are taken together with the results of the formal psychological assessment, the picture emerges of a woman who had endured a harsh and chaotic childhood along with the maternal rejection. She entered an abusive relationship without the support of her own family and began having a family at an age where she was emotionally needy and ill-equipped to manage the demands of three children. There are indications that E.L. was immature and attempting to initiate her own plan of individuation at a time when her children should have been her primary focus. In short, E.’s emotional investment in those children (attachment) was weak. She felt tyrannized by her partner and admits to witnessing his harsh treatment of their three children without effectively intervening. Their lives were chaotic and generated much emotional insecurity in the children.

As a result, the children came into care with major emotional and behavioral difficulties and E. could offer no more than attend time-limited access with them which was marked by chaos and emotional upsets after visits. The Kingston Society struggled with the special needs of each child and each child eventually required separate placements. Indications of E.’s weak attachment were further in evidence when she elected to complicate her life with the demands of a new relationship which took her away from their area and a new child, S. who added further to her estrangement from her other three children. The access with those children, which was chaotic and confusing for them at the best of times, deteriorated still further. That E. expected these children to be ‘surprised but pleased’ with their new sibling adds still further to the evidence of her lack of attachment to them and poor understanding of their predicament and emotional needs.

Although E. had a ‘grand plan’ to form a blended family with G. and his two boys, with the addition of these three children, it would have been doomed to failure, as the needs of her three other children were so great and her emotional availability for them wad diminishing. It is hard for E. to ace-pt her limitations in these areas and to let go of her initial plan for reunion. (This likely was why she engaged in the extensive subterfuge surrounding her relationship with G. and S’s birth.) However, to add the demands of three needy children to her life would have surely overtaxed her and derailed her process of maturing. Moreover, it would have left all four children frustrated and angry, not to mention the impact on G.’s two children. Although she may see her recent decision to sign off on access to her eldest children as a defeat, it was a necessary one.

E.’s current life is more manageable. She has one child whom she has not raised in chaos and abuse. She has had time to organize herself and get her own affectional needs met. She is beginning to explore her own future and what it might hold while at the same time taking into account her daughter’s needs. E. has historically had boundary issues with regard to her perceptions of her children. She believes that what is good for her is, by necessity, good for her children. As is generally known, this is not always the case. …

[ 28 ] It is to be noted that E.L. is currently parenting her youngest child, S. and two children who are the natural children of her former common-law partner. She apparently is doing so at an acceptable level of childcare. The Society has not intervened in any formal way with her parenting of those three children.

[ 29 ] The issue of the acknowledged improvement in the mother’s ability to parent as demonstrated by her current parenting of three children without formal CAS intervention was raised. The mother relies on that as a relevant consideration in this application. The Society takes the position that the test is limited to a strict reading of s. 59(2.1) and therefore a “material change in circumstances” approach is not relevant.

[ 30 ] I find the issue of E.L.’s improved capacity to parent, as demonstrated by her, is relevant to whether the “relationship between the person and the child is beneficial and meaningful to the child”. E.L.’s current circumstances must be reviewed as part of the evidence to help the court decide if, on a balance of probabilities the test of the Court being “satisfied” has been met. A parent’s current circumstances are relevant to a finding as to the issues of “beneficial and meaningful” relationships. A positive finding regarding these circumstances would not necessarily determine those issues, but does lead to further consideration. A negative finding may eliminate or greatly place in jeopardy, any further consideration of those issues. The test appears to relate to the current status of the relationship between the child and the person bringing the application. Evidence of the current circumstances of that person, related to parenting, is clearly relevant.

[ 31 ] Mr. C., who is the natural father of the three children who are the subject of this application, has regular contact with the children by having face to face visits with them for approximately one hour per month. The Society’s view of that is that such contact is provided for under s.59(4) in the discretion of the Society.

[ 32 ] E.L. retained the services of Dr. Julio Arboleda-Flórez to provide an opinion on her access proposal. His opinion was derived from a review of documentation only. He did not meet with the children or the parties. Dr. Arboleda-Flórez is not in a position of having an extensive background in the assessment of child protection matters, nor has he had the opportunity to meet with the parties or the Society workers. His report recognizes that the children have suffered emotionally and psychologically and focuses on the gains the mother asserts she has made. He does not go so far as to recommend a reinstatement of access but wonders, at page 13 of his report, what the losses could be if access is allowed in a measured and supervised fashion. Those risks are clearly identified by Drs. Philips and Carney as well as the Society social workers and the clinical assessment of the Family Court Clinic. He also appears to be quite influenced by the wishes expressed by the children as reported above.

[ 33 ] Given all the circumstances, I must attribute less weight to the report of Dr. Arboleda-Flórez than the reports of Drs. Carney and Philips and the Family Court Clinic.

[ 34 ] With regard to the child S.C., I find that the Respondent mother, E.L. has clearly failed to meet the test set out in s.59 (2.1). Although S.C. has some interest in knowing about his mother, there is no evidence to support a finding that the relationship between S.C. and his mother is beneficial and meaningful to him at this time. It has also been established that, on the balance of probabilities, any Order for access would impair S.C.’s current opportunity for adoption and that a suitable placement has been found that will not proceed if such an access order is made. The application fails with regard to the child S.C. born […], 2000.

[ 35 ] With regards to the children C.C. and K.C., they are in somewhat different circumstances than S.C. and C.C.’s situation is somewhat different than K.C. They have both had their own struggles during the time they have been in care since 2003.

[ 36 ] At one point, C.C. was doing extremely well and was even inquiring whether her foster family would be willing to adopt her. The October 18, 2010 report from Dr. Philips regarding the risks of opening up the potential for access, after C.C. had worked so painfully to grieve and resolve the issue of contact with her mother, seems somewhat prophetic at this point. Dr. Philips states that it would jeopardize her progress and perhaps interfere permanently with her ability to develop successful attachment. She makes the very strong statement that this would be considered “unethical and in no way clinically therapeutic”. Inadvertently, this application has opened up that issue with the involvement of the children in the process. Hopefully, these set- backs will not result in permanent, negative consequences for C.C.

[ 37 ] K.C. has had some contact with her mother. It may be difficult to control the contact between her and her mother, given her age, if she chooses such contact. Her continued need for group home placement demonstrates a high level of issues with which she is still struggling.

[ 38 ] As stated in my brief comments in the Courtroom at the conclusion of this motion, it is generally not considered in the best interests of children to graduate from care without some sense of permanency. I am prepared to take Judicial notice that children who lack that sense of permanency are more likely to commit violent crime, experience homelessness, fail to complete their education and run greater risks for drug and alcohol abuse as well as difficulties in parenting their own children.

[ 39 ] That sense of permanency need not come only from an adoption placement, but may come from a variety of resources including extended family members, or by reconnecting with their natural parents. Certainly for K.C. at age 14 and also C.C. at age 12, there is a critical need for them to have a sense of a permanent home before they graduate from the care of the Society. I have no way of knowing whether that sense of permanency can come from an adoptive home at their advanced ages. It does seem that our process may have greatly impacted C.C. in a negative way, and the process has become part of the problem, when she had a chance to perhaps find that sense of permanency in her life. If that is a major source of C.C.’s relatively recent struggles, which caused her foster placement to break down, that is a true indictment of this process. We need to do better.

[ 40 ] At this point in K.C’s life, time is running out for any chance that such a sense of permanency can be created for her, other than by people who already have a major role in her life. In the next few years, she will graduate from the Society’s care and someone needs to step up so she may find that sense of permanency. The mother is willing to do so.

[ 41 ] Up until this point, that has not been a realistic possibility because of the mother’s own shortcomings, as detailed and highlighted by the expert opinions, set out above.

[ 42 ] Given the amount of concern expressed by credible experts, including the Society, staff and the clinical experts set out above, I am unable to find that the mother has met the necessary criteria set out in s. 59(2.1) of the Act by establishing that the relationship between herself and either C.C. or K.C. is beneficial and meaningful to them and that the Order to access will not impair the child’s future opportunities for adoption.

[ 43 ] I would however recommend a very serious assessment of the realistic possibility of anyone else providing the sense of permanency that these two children will require upon their graduation from the care of the Society. If no one else is willing to step up, and there are no true prospects for such permanency planning for either C.C. or K.C., maybe the mother should be viewed as one of the people, perhaps along with the father or other extended family, to provide that sense of permanency, as fragile as it may be. That is a very different issue than the need, to date, for day to day adequate parenting.

[ 44 ] In view of the wording of the legislation, I am unable to grant this application, and I do not see a realistic prospect for E.L. to effectively provide care for these children, while they remain dependents. It may be however, that in the world of social media, it will be difficult to contain contacts with children of this age and the long term prospects, without a sense of permanency, may be no bleaker with the mother as part of that plan, than not.

[ 45 ] The clear intent of this legislation is to provide stability and permanency in planning. Ideally that permanency can be found for each of these children. At some point, if it becomes clear that such permanency will not survive their graduation from care, then all options need to be on the table, including any support that could be given to re-establish connection with their natural parents.

[ 46 ] The status review application is denied for the reasons set out above. I thank counsel for their assistance.

Released: May 31, 2012 _________________________________

MR. JUSTICE KENNETH E. PEDLAR

COURT FILE NO.: 578/03

DATE: May 31, 2012

SUPERIOR COURT OF JUSTICE - ONTARIO BETWEEN: Family and Children’s Services of Frontenac, Lennox and Addington, Applicant - and – E.L. and R.C., Respondents BEFORE: JUSTICE PEDLAR COUNSEL: Leanne Wight , Solicitor for the Applicant Peter McCullough , Solicitor for the Respondent Vince Ramsay , Counsel for the Children, K.C., C.C. and S.C. HEARD: May 29, 2012 ENDORSEMENT PEDLAR, J.

DATE: May 31, 2012