BARRIE COURT FILE NO.: 08-380
DATE: 20120927
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: THE CHILDREN’S AID SOCIETY OF THE COUNTY OF SIMCOE, Applicant
AND:
T.C., Respondent
BEFORE: THE HON. MADAM JUSTICE R.A. WILDMAN
COUNSEL: David Winnitoy, Counsel, for the Applicant
Chris Severn, Counsel for Respondent Mother
Catherine Rogers, Counsel for the child, SC
HEARD: September 10, 2012
WARNING
This is a case under Part III – Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:
45(8)
76(11)
85(3)
PROHIBITION: IDENTIFYING CHILDREN – No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
PUBLICATION – No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.
OFFENCES – A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
ENDORSEMENT
[1] The Society is seeking an order of Crown wardship without access for the child, SC (dob […], 2001). SC has been in care since July 9, 2009. The Society’s plan is for her to be adopted by her foster family.
[2] SC’s father is deceased. Her mother, TC, appeared with her counsel on the first day of trial and filed a Notice of Withdrawal. TC confirmed that she does not wish to participate in this trial and she is abandoning any claim she might have for further involvement in S’s life. She does not wish to pursue access to S.
[3] TC left and Mr. Severn was excused, as his client no longer had any claims before the court and he had no instructions to participate in the trial.
[4] On that basis, we agreed to convert the trial into a default hearing for summary judgment. I have been referred to a number of affidavits and a Statement of Agreed Fact in support of the requested order.
[5] I also heard oral testimony from JR, who is S’s foster mother. S has been living with her since December 6, 2010. She confirmed that S is thriving in their home, and S asks that they arrange family activities outside of the times when she is scheduled to visit her mother, so that S can participate with the rest of the family. S asked that her access with her mother be changed so that S would not miss Father’s Day celebrations with JR’s husband. These are hopeful signs that S is beginning to form an attachment to her foster family. JR and her husband wish to put forward a plan to adopt S, as soon as possible.
[6] On behalf of S, Ms. Rogers is not opposing the request for Crown wardship, although she does not feel she can consent to it. However, she is objecting to the requested order for “no access”, and would prefer that I leave the order silent on the issue of access. This is because S has told her that she feels her voice is not being heard by the courts, and S wishes to be able to see her mother.
[7] For the reasons that follow, I am satisfied that an order should be made for Crown wardship with no access, for the purposes of adoption.
The Crown Wardship order
[8] Despite the lack of a competing plan, I am still required to satisfy myself that the order being requested is appropriate and that there is no genuine issue requiring a trial.
[9] This is a status review proceeding. The original protection application was commenced March 31, 2008, following an apprehension of S from TC’s care. S, who was 7 at the time, was left alone at home. Her mother, TC, was found about 2 km away, wandering the streets intoxicated and threatening to kill herself. When TC was taken to the hospital, she needed to be restrained by the officers. She made comments about killing herself and S, reportedly stating, “If I can’t have her then she should be dead, I’ll kill her myself, I’ll fucking kill her, I’ll murder her, I’ll stab her”. S also advised the worker at the time about concerns regarding domestic violence between TC and her domestic partner, as well as frequent consumption of alcohol and beer in the home.
[10] For the next year, the Society tried to work with TC to see if she could safely parent S. On July 7, 2008, the parties entered into Minutes of Settlement, in which S was agreed to be in need of protection under s. 37(2) (b), (g) and (g.1) and returned to her mother’s care under a 6 month supervision order. There were comprehensive terms of supervision including:
TC was to attend for follicle hair tests and/or random drug and alcohol screens;
TC was not to consume alcohol or illegal/non prescription drugs while in a caregiving role;
There was to be no adult physical or verbal conflict in the home or in the presence of S;
TC was to attend counselling as recommended by the Society to address the issues of alcohol use, mental health and domestic violence;
TC was to attend and complete a parenting class.
[11] In September and October of 2008, TC tested positive for cocaine three times.
[12] The Society commenced the first Status Review on December 31, 2008. However, they continued to try to work with TC. Once again, the mother and the Society entered into a consent placing S with her mother under a 6 month supervision order[^1]. The terms of the prior supervision order were continued, and TC also agreed to undergo a Parenting Capacity Assessment, as well as ensure that there was no contact with her previous abusive partner (“Mr. R”) in the presence of S (unless approved by the Society in advance).
[13] On July 9, 2009, S was again apprehended from her mother’s care, largely due to TC’s reinvolvement with Mr. R. The Status Review application[^2] indicates that the police attended at TC’s residence regarding a domestic dispute between TC and Mr. R. Mr. R. was reportedly at TC’s home intoxicated, and had “smacked her” in the nose. The Status Review application also indicates that TC had failed to attend or participate in the agreed treatment and counselling services.
[14] A parenting capacity assessment was prepared by Dr. Seim, a psychologist, and released on August 10, 2009. He concluded that, if TC severed her relationship with Mr. R, and demonstrated a significant change of attitude and commitment to involvement in necessary clinical treatment and support services, there was a potential to minimize the developmental risk for S with a transitional plan for returning S to her mother’s care.
[15] Once again, the parties resolved the proceedings with a further consent order[^3]. S remained in care under a 6 month Society wardship order but TC was granted access and work began for a possible return to TC’s care. TC agreed not to have any contact with Mr. R. She committed to engaging in services regarding drug and alcohol treatment, mental health issues, domestic violence and clinically managed access. There was a specific term that, “The parties acknowledge that mere participation in services by the mother would not be sufficient to address the concerns. The mother must demonstrate engagement with services; acceptance and that services are required; a commitment to services; and progress in addressing identified issues”. This was to address previous comments by the mother that she would attend counselling but would not participate, and “you can lead a horse to water but you can’t make them drink”.
[16] TC was charged with driving under the influence on August 28, 2009 and again on October 1, 2009. On December 9, 2009, she was charged with driving while disqualified. In February of 2010, TC admitted to continued drug use. She attended at Mr. R’s probation officer’s office and signed a consent allowing Mr. R to have contact with her. On March 3, 2010, TC and Mr. R were together in a vehicle, and there was further police involvement, which resulted in him being charged with impaired driving, dangerous driving, flight from police, driving over 80 and failure to comply with his probation.
[17] The society started yet another Status Review[^4] requesting a further period of Society wardship with access to the mother. However, when the mother refused to engage in services in a meaningful way, and was also charged with further alcohol related offences in the community in December of 2010, and again in March of 2011, the Society amended its application to request Crown wardship without access for the purposes of adoption.[^5] That is the application that is currently before the court.
Is there a less intrusive order that is available to me and what services have been offered to try to assist the family?
[18] S. 70 of the CFSA provides that the court shall not make an order for society wardship that would result in a child over 6 being a society ward, including time under a temporary care order, for longer than 24 months. S. 70(4) allows for a maximum extension of six months, if such an extension is in the child’s best interests.
[19] S has been in the care of the Society continuously since July 9, 2009[^6], a total of at least 38 months. We are well beyond the statutory maximum. That means that the choices available to me are a return to TC’s care, with or without supervision, or an order for Crown wardship.
[20] I am satisfied that S could not safely be returned to her mother’s care, with or without supervision. That has been tried time and time again. TC has refused to engage in counselling services or therapeutic access in a meaningful way. Dr. Seim has updated his assessment and commented on her continued drinking problems, and her failure to attend scheduled meetings, appointments and access. As recently as February 22, 2012, S reported that her mother had consumed alcohol during an access visit. This resulted in some court proceedings, and some changes to the access schedule to require supervision. Between March 12, 2012 and August 18, 2012, TC has been entitled to 87 access visits with S. TC has only attended 16, or 18%. Also, TC requested that the scheduled visits be reduced from seven hours in duration to four. There is no question that TC’s other issues are standing in the way of her fully committing to properly parenting S.
[21] The affidavit of Virginia Edwards dated August 24, 2012, confirms that multiple services have been offered to the mother but she has either refused them or only participated in a minimal way. She continues to have police involvement and alcohol related problems but has not made a serious attempt to address them with any treatment program. She has refused therapeutic access and would rather forgo access than have a 1-1 worker present. Dr. Seim comments:
The pattern of lack of involvement in services available by arguing she (TC) either does not need the service or learns little when she does get involved, evident in the initial PCA, continues in the Reassessment.
… She rejects professional recommendations that she engage in counseling to deal with her mental health issues including effective grieving over the loss of S’s father. She minimizes and rejects the impact of her substance abuse problems denying any need for addiction counseling[^7].
[22] I am satisfied that the Society has met its mandate to try to provide services to assist TC to improve her parenting. TC will not engage in anything in a meaningful way. As she herself put it, “You can lead a horse to water but you can’t make him drink”.
[23] I am satisfied that S continues to be a child in need of protection and she cannot be returned to her mother’s care. TC is not committed to S and has not demonstrated any insights into her past difficulties that would give cause for any hope that things would be different for S than in the past, if she was returned to TC’s care. S is thriving in her current placement and has an opportunity for a permanent placement with her foster family through adoption. The time for experimentation is over.
[24] There will be an order that S be made a Crown ward.
Access
[25] Having made the order for Crown wardship, the onus shifts to the person requesting an access order to satisfy me that an order for access is beneficial and meaningful for the child, and it will not impair her opportunities for adoption. If no access order is made, the Society may still allow contact or communication between the parent and the child, if the Society believes it is in the child’s best interests.[^8]
[26] The mother is not asking for access. She has said that she will not exercise access if it is supervised. Unfortunately, TC has made unfortunate comments to S during access visits, and should not be alone with her unsupervised.
[27] When S was apprehended, TC apparently told her that she (S) would be stabbed in foster care, and that she should run away and find her mother. At other times, the CAS says she told S that, even if S was adopted, she could reunite with TC when she was 16. As recently as last summer, TC apparently told S during an access visit that her kittens were dead, as they had been killed by having their heads crushed, presumably by her brother, and that TC had found “needles” in the brother’s room.
[28] I am satisfied that TC should not be alone with S. I am also satisfied that there is a reasonable cause for concern that TC would undermine the adoption placement, if access was to continue. This is not a mother who has demonstrated appropriate sensitivity to the needs of this child.
[29] I am sorry that S feels that “her voice is not being heard”. It is understandable that S is not able to say that she wishes to stop seeing TC, but the burden of that decision should not be placed on an 11-year-old child. S is very protective of her mother and worries about her. Dr. Seim reports in the PCA that TC developed a “strong dependency bond” with S, who “represents the ideal relationship that was taken away by (S’s father’s) murder”. TC has encouraged a strong co-dependency relationship and, in turn, S, has been unwilling to report any negatives about her mother. In the original assessment, Dr. Seim had observed:
… (S’s) dysfunctional attachment relationship to her mother (protector: parentified) places her at risk for positive attachment to others in the future. She perceives her relationship to be that of protector rather than that of an unconditional trust relationship. Her focus in the relationship is to satisfy her mother’s needs rather than her own[^9].
[30] When Dr. Seim released the reassessment in February of 2012, he also commented on the effect this would have on S’s ability to form an attachment with her foster family.
S continues to exhibit a strong but dysfunctional relationship to her mother. Given her age, this is beginning to have a negative effect upon development of a strong alternate positive attachment in the foster setting. This would pose a similar threat in an adoption placement. On a positive note, S has developed positive attachments in her current foster placement. However, she is demonstrating allegiance conflict as the amount of access visitation has been increased.
The force of conflict would be dramatically reduced were the child to have her relationship with mother changed to that of occasional contact rather than forced access. Should the child be made Crown Ward and placed in a permanency setting, assurance of periodic contact with mother without formally scheduled access visits would dramatically reduce this allegiance conflict. S would have knowledge of her mother’s well-being without having to assume a protective role. She could then form guiltless attachment relationships in her permanency setting.[^10]
[31] In the concluding paragraphs of his reassessment, Dr. Seim gives further guidance about the “contact” that he is recommending.
S has shown the beginning of positive attachment in her current foster placement … However, this attachment growth is in jeopardy should she continue to have scheduled access visits with her mother. Given her current strong dysfunctional attachment to mother (parentified), S is in a significant conflict situation regarding growth of attachment in the foster placement setting.
Severance of ties with mother would be damaging for S given her age and strong dysfunctional attachment to her. However these parentified needs could be met by circumstances whereby mother and daughter remain in contact on an irregular basis involving occasional phone conversations, exchange of photos and gifts, etc. on significant events. In the short term, limited or no direct contact would be recommended allowing time for S to gain a strong sense of safety and permanency in her placement setting. Once established, a more involved pattern of contact could be negotiated involving placement family, daughter, and mother.
Since the objective of contact is to preserve S’s identity with biological mother and information of her well-being, then occasional contact is all that is necessary. The objective would not be to promote attachment maintenance or development with biological mother.
[32] JR, the foster (and proposed adoptive) mother talked about her mixed feelings regarding this issue. She said she certainly would want to see access limited, if at all, at the start, to avoid confusion for S. She talked about the need for any visits, if they occurred, to be short, because S comes back exhausted from longer visits. She talked about the need for supervision, due to things that had happened in the past on access visits, such as TC drinking. She says that she knows S worries about her mother, and she (the foster mother) is concerned about being perceived as “the bad guy” if she was the one to say “no” to access. She admitted that it might be easier if I was “the bad guy” and made the order that there be no access.
[33] JR is open to continued contact. She has fostered a relationship between S and her paternal aunt, PN, who has become “like a grandmother” to S. PN phones and sees S several times a week.
[34] JR is also open to continuing to send TC information about S, including school pictures and report cards, if TC wishes. She also said that, if she felt that visits were something that were in S’s best interests in future, she would make it happen.
[35] On occasion, I have acceded to a consent of all parties to leave a Crown wardship order silent as to access, in order to allow the parent to continue to have visits with the child while the adoption was being finalized. That is usually in a situation where the birth parent has recognized that he or she cannot raise the child, and is supportive of the adoption process. In those circumstances, it seems appropriate to allow all the parties to continue to make appropriate arrangements to move forward cooperatively towards an adoption placement, without the restriction that a “no access” order would impose on the possibility of arranging visits with the birth parent(s) during the transition period.
[36] However, this is a very different situation. Everyone is not consenting to a “silent as to access” order, and TC is not supportive of the adoption. In fact, she has actively tried to undermine S being in care by telling her to run away. Contact with TC continues to place S in a “loyalty bind”, which I find is not conducive to maximizing S’s chances of a successful adoptive placement.
[37] When the issue of access is placed before the court, because the parties can’t agree, the court needs to make a ruling. I do not feel it is open to me to avoid the issue by leaving my order silent as to access. Even if it were, I would decline to do so in this particular case.
[38] There is a statutory presumption against access. I find that evidence does not rebut that presumption. Although I accept that the relationship with TC may be meaningful to S, I am not satisfied, on the balance of probabilities, that it is beneficial. I am also not satisfied that it will not impair S’s future opportunities for adoption. She needs time to grieve the loss of her relationship with her mother, and adjust to the new reality that she will be raised by another family. She needs a chance to settle in with that family, without interference from her mother. This will, no doubt, be a hard time for S, but I am satisfied that an order for continued access with her mother would make it even more difficult.
[39] I am confident that the provisions of s. 59(4) regarding contact will be used by the Society and the foster mother to address any need S may have to have information about, or future contact with, her mother. For the time being, I am satisfied that access is not something that would be beneficial to S.
[40] There will be an order for Crown wardship, with no access, for the purposes of adoption.
WILDMAN, J.
Date: September 27, 2012
[^1]: Order of Graham J, February 23, 2009. [^2]: July 13, 2009 [^3]: September 14, 2009. [^4]: March 5, 2010 [^5]: February 9, 2011. [^6]: As well as a month or two in 2008. [^7]: Reassessment of Dr. Seim, February 7, 2012, page 7. [^8]: Child and Family Services Act, R.S.O. 1990, CHAPTER C.11, s. 59 (2.1) and (2.4). Access: Crown ward (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. 2006, c. 5, s. 17 (2). Society may permit contact or communication (4) If a society believes that contact or communication between a person and a Crown ward is in the best interests of the Crown ward and no openness order under Part VII or access order is in effect with respect to the person and the Crown ward, the society may permit contact or communication between the person and the Crown ward. 2006, c. 5, s. 17 (4). [^9]: Reassessment of Dr. Robert D. Seim, February 7, 2012, page 9, quoting from the original PCA submitted August 10, 2009. [^10]: Reassessment, page8.