D.S. v. CAST


CHILD AND FAMILY SERVICES REVIEW BOARD

 

D.S.

v.

Children’s Aid Society of Toronto

                                                                                                                                                           

 

REASONS FOR DECISION ON MERITS

                                                                                                                                                           

 

Date:                           June 2, 2010

File Number:            CA10-0078

Citation:                     2010 CFSRB 25

Indexed as:                D.S. v. CAS of Toronto (CFSA s.144)

Counsel:                    J. Schuman and T. Mesensky for the Applicants (D.S. and F.S.)

                                    S. Fisch for the Children's Aid Society of Toronto

 

INTRODUCTION                                                                                                     

 

[1]                     The Applicants, the uncle and aunt of J.S1., born February […], 2007, applied to adopt her on November […], 2009 following an unsuccessful appeal of her Crown Wardship by her biological parents, D.S1. and J.S2., on November […], 2009.

 

[2]                     The Children’s Aid Society of Toronto (the “Society”) initiated a homestudy of the Applicants, but did not complete the final part which would have involved visits between the Applicants and the child.  The Applicants were informed that they were considered to be excellent candidates for adoption, but that they were being rejected as adoptive parents for this particular child because of a longstanding, serious and destructive history, on the part of the biological parents, of disrupting any potential family placement for J.S1..

 

[3]                     The Society decided that it was in J.S1.’s best interest to place her for adoption with an unidentified, unrelated family. 

 

[4]                     The Applicants have requested a review of the Society’s decision to the Child and Family Services Review Board (the “Board”).

 

[5]                     The Board, in accordance with section 144 (11) of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”) must decide what action is in the best interest of the child and either confirm the decision of the Society to refuse to proceed with the Applicants’ request to adopt the child or to rescind the decision of the Society.

 

BACKGROUND

 

Refusal of the Adoption Application

 

[6]               J.S1. is the biological daughter of D.S1. and J.S2..   She is the full sister of J1., born 1995, who was placed by the Society in the care of his paternal grandmother, P.M., in 2005, and a half-sister, through her mother, of J2., born in 1987.

 

[7]               J.S1. was born with traces of cocaine in her hair and was apprehended at birth by the Society.  She was placed in foster care while efforts were made to place her in a kinship home within her extended family.  Although the Society explored three potential family placements, ultimately the offers of placement were withdrawn by family members because of extreme harassment, verbal abuse, and threats by J.S2. and D.S1.. 

 

[8]               J.S1. was moved from her first foster home after approximately one year because of the family’s unwillingness to continue fostering her, given the biological parents’ harassment.  J.S1. is now in a foster home, unidentified to J.S2. and D.S1..  She is doing well, meeting all her milestones, and is a happy and active child. Supervised visits between J.S2. and D.S1. and J.S1., prior to Crown Ward Ship, were held twice a week for two hours each, with no trauma to  J.S1..

 

[9]               On March […], 2009, J.S1. was made a Crown Ward without access, for the purpose of adoption.  On October […], 2009 an appeal by her parents to the Ontario Superior Court of Justice was dismissed. 

 

[10]           On November […], 2009 the Applicants, J.S2.’s aunt and uncle, applied to adopt J.S1.. 

 

[11]           It is agreed by all parties that D.S1. and J.S2. have a long history of family violence, drug abuse, and criminal activity, including crimes of violence and breaches of Court Orders. They have been known to the Society for approximately twenty years as being exceptional in their abusive tendencies, their vulgarity, and in their ability to create chaos.

 

[12]           During visitation with J.S1. under the supervision of the Society, they were extremely difficult to manage, and could disrupt and frighten adults and children to the point of the Society having to evacuate the building.

 

[13]           The Society had several meetings to discuss the best decision to be made regarding J.S1..  It requested the help of Dr. D.F., Psychologist, who provided a consultation based on certain information. His assistance to the Society was in the form of consultation only.

 

[14]           He has not met the Applicants and cannot provide an expert opinion regarding them. He noted a very intrusive and emotionally abusive relationship to family members on the part of J.S2. and D.S1..  He is concerned about the difficulties a child would face in the transition from foster care to a disturbed family system.

 

[15]           In his opinion it would be difficult to build an effective firewall to protect J.S1. from interference from her biological parents.  His view is that J.S1.’s best chance is to be completely separated from her biological family; he recommended that the Society think seriously about going forward with a plan to place J.S1. with members of her biological family.

 

[16]           His advice was given on the understanding that the Applicants planned to move in with J.S1.’s brother J1. and grandmother P.M., both of whom are in contact with J.S1.’s biological father and mother.  He was not apprised of the Applicants’ change in their plan to live independently with J.S1..

 

[17]           As an example of the great difficulty of having a child of J.S2. and D.S1. in the care of a family member, L.M., Family Service Worker, testified that D.S.’s mother, P.M., has experienced many serious problems over the years in her efforts to care for J1. because of the harassment of J.S2. and D.S1..  The Society was required to bring J1. into care for a period of six months in 2007 because of the harassment of J.S2. and D.S1.. 

 

[18]           The society is of the opinion that J.S2. and D.S1. have already started to create some difficulties.  Phone calls have been received by the Society which appeared to be based on recent information related to adoption plans for J.S1..

 

[19]           M.M., Kinship Assessment Worker who conducted the home study, testified that several meetings were held with D.S. and F.S. to discuss the relationship the Society had with J.S2. and D.S1., the Applicants’ relationship to J1., why it took three years to come forward with a plan for J.S1., and how they would protect J.S1..

 

[20]           The Applicants responded positively and appropriately to concerns raised by the Society.  They changed their initial plans to move in with P.M. and indicated that they were prepared to obtain a restraining order for J.S2. and D.S1., if required.

 

[21]           Some issues remained of concern to the Society: J.S1.’s relationship with her brother J1., whether D.S. and F.S. would resent J.S1. if they had to remove themselves from their family, including P.M. and J1., and the fact that the [        ] home to which D.S. and F.S. planned to move was owned by P.M..

 

[22]           The assessment of the Applicants was not completed and the Applicants’ request for access to J.S1. was never approved. The Applicants requested a meeting with the Society’s Service Team which did not take place.

 

[23]           D.S. and F.S. were assessed through the Society’s PRIDE Training and homestudy as noted above.  The homestudy concludes that both Applicants have successful, well educated, adult children from previous marriages, are active members of their community and church, and are successful business people. They have successfully parented children, are pillars of the community, and have the entire support of their extended family. The Applicants received excellent reviews from the Society workers.

 

[24]           There were no concerns on the part of the Society regarding the Applicants; the concerns related solely to J.S2. and D.S1..

 

[25]           Because of the Society’s concerns that it would not be in J.S1.’s best interest to be adopted by a family member due to the threat of disruption of that adoption placement by her biological parents, the application of F.S. and D.S. was rejected before the completion of their homestudy, that is, before the visitation process with the child. 

 

[26]           The Society’s reasons for its decision not to approve D.S. and F.S. as adoptive parents, can be summarized as follows:

 

1        J.S1.’s best interests are not served by adoption within her family.  The decision has little to do with the Applicants, and concerns J.S1.’s biological parents.

 

2        There is a serious and significant risk to J.S1., not hypothetical or speculative, because of the unrelenting actions of the biological parents to destabilize and attack family members.

 

3        Significant efforts were made by the Society to place J.S1. with three different members of her extended family, all of which were sabotaged by the violence and intimidation of J.S2. and D.S1..  This unfortunate process has kept J.S1. in the Society’s care for three years, far longer than is reasonable or healthy for her.

 

4        While the Society diligently exercised its statutory obligation to consider a kinship placement for J.S1. before the Crown Ward Order, now that J.S1. is a Crown Ward, the Society’s obligation is solely to consider what is in her best interests.  The risk for J.S1. of intrusion by her biological parents and a subsequent breakdown of an adoption placement is great and cannot be overstated.

 

5        D.S. and F.S. are excellent candidates to adopt a child, but not this child.  J.S1.’s interests will be best met by adoption outside the family unit.

 

Applicants’ Response

 

[27]                 D.S., one of the Applicants, testified that he came to Canada at age eleven. In Jamaica, he was raised by his maternal grandmother with discipline and respect.  He left home at age eighteen when J.S2. was eight years old; his parents divorced when J.S2. was ten.  D.S. was a disciplinarian for J.S2. when J.S2. was a teenager.  He tried to assist him three times by employing him, but had to fire him each time.

 

[28]                 There was little contact over the years; the last contact was in 2004.  D.S. has described himself and his way of life as the polar opposite from J.S2. and D.S1.. J.S2. does not attend family functions, e.g. Christmas, funerals.

 

[29]                 He testified that he has recently been mentoring J1..  He tries to help J1. and support his mother P.M. who is now seventy years old and trying to cope with a teenager.

 

[30]                 When his mother asked him to come to Court for the Crown Wardship appeal, he realized then that J.S1. would be lost to the Ss’ and felt that someone had to advocate for this child. 

 

[31]                 He and F.S. did not understand the situation earlier, did not understand J.S2. and D.S1.’s involvement, and thought that J.S1. would be returned to her biological parents. 

 

[32]                 After they were advised by the Society of the extent of the problems regarding J.S1.’s placement, it only strengthened their resolve.  They immediately changed their plans regarding their move to P.M.’s home.

 

[33]                 According to the Applicant, J.S2. and D.S1. do not harass them.  With regard to potential ways to mitigate harassment, he has no hesitation in taking out a Court Order, advising family and contacts regarding “no access,” and explaining to J1. his responsibilities related to his sister.

 

[34]                 The Applicant confirmed that Dr. D.F. never spoke personally to them. 

 

[35]                 They were told by the Society “its not about you, it’s bigger than you… you are wonderful people, however the risks for J.S1. are greater than the benefits”.

 

[36]                 The Applicants would manage J.S1. and J1.’s relationship by taking small baby steps, but not right away.  He strongly believes that the benefits for J.S1. overall would be a connection with her biological family and clear understanding of her identity.

 

[37]                 He testified that he and F.S. have the ability to handle the risk; they have addressed possible areas of concern including school attendance and building security, and would consider professional help, without a doubt.

 

[38]                 F.S., Applicant, testified that she has two adult sons who are now professionals.  Additionally, her first husband had three children who lived with them, and they cared for another related child.  This was not without its challenges, but all six children and D.S.’s daughters are now successful adults. 

 

[39]                 She and D.S. have been married for twelve years.  She met J.S2. and D.S1. in 1997 when she came to Canada from Jamaica and hasn’t had much to do with them since.  It was an eye opener to hear how destructive J.S2. and D.S1. have been. 

 

[40]                 She called D.S1. herself to discuss D.S1.’s reaction to their adoption application.  D.S1. said “We have messed up and we would not interfere.  We would be grateful if you would do for J.S1. what you have done for your girls”. F.S. also has a respectful relationship with P.M., who indicated that “the focus is on J.S1., not me”. 

 

[41]                 F.S. testified that they didn’t know the Society or its concerns, and applied to adopt J.S1. with blind faith.  Their plan was only a starting point; no one at the Society talked to them or provided guidance.  The feedback from the assessors was all good.  Later they felt that the Society’s decision had been predetermined and that they were permitted to go through the assessment only as a statutory process. They did not meet with the Society staff although they requested to do so.

 

[42]                 They feel that J.S1. could find no better home; they can deal with any disruption.  They love and believe in this little girl, believe that she deserves to be with her family; they will protect and guide her.  She is a part of the S. family, not outside of it.

                                                                    

[43]                 P.S., uncle of D.S., was called as a witness. According to the witness, D.S. is an outstanding man who lives by Christian values.  He sees D.S. at family gatherings; J.S2. is not there.

 

[44]                 The family is very supportive of each other.  There is a strong family dynamic and a large circle of friends.  The extended family can help by providing opportunities for J.S1., without the presence of her biological parents.

 

[45]                 He also testified that D.S. and P.M. are not particularly close; they discuss business issues; D.S. is supportive of his mother.

 

[46]                 The family is very supportive of D.S. and F.S.’s desire to adopt J.S1.; the extended family is used to caring for each other’s children.

 

[47]                 The Applicants provided to the Board an assessment of their capacity to adopt J.S1. considering all these circumstances. They provided the testimony and evaluation of Dr. B.K., Psychologist.

 

[48]                 Dr. K. met with D.S. and F.S. to interview them regarding the rejection of their application to adopt J.S1..  Her impression of D.S. was that he was insightful, intelligent, showed good judgment, communicated well, and was motivated by the best interests of J.S1..  Her impression of F.S. was that she was a bright, warm, caring individual who enjoyed children and presented in a positive light.

 

[49]                 She understood that the biological parents could be extremely intrusive and disruptive, including threats to kill family members and third parties.  She thinks that D.S. and F.S. could cope with them quite well because D.S. has had no contact with J.S2. over many years, has successfully set boundaries with J.S2. and, she believes, could do so in the future.

 

[50]                 Regarding contact with P.M. and J1., her impression is favorable.  D.S. and F.S. have gone out of their way to change their initial plan.  They will not harbour resentment regarding this. 

 

[51]                 In her opinion, they will be good parents; they have a good track record.  They are a very stable family unit who can provide consistency and continuity.  There would be no greater risk regarding breakdown than in another family.

 

[52]                 With regard to the child’s sense of stability, the risks could be coped with.  D.S. and F.S. would recognize if they needed professional help that is, counselling and coaching.  D.S. and F.S. can tune into J.S1.’s need for security and secure attachment and be sensitive to her.

 

 

[53]                 In conclusion, the response of the applicants can be summarized as follows:

 

1        The Society has considered D.S. and F.S. in the abstract and made assumptions             regarding their ability to protect J.S1. from her biological parents.

 

2        D.S. and J.S2. have not seen each other for many years.  J.S2. does not attempt to cross or disturb D.S..

 

3        D.S. and F.S. have family and involved professionals who can protect J.S1.; there are family members who are positive influences and have no contact with J.S2. and D.S1..

 

4        D.S. and F.S. now understand the situation more fully because of this hearing; previously they were not aware of all the circumstances concerning J.S2. and D.S1..

 

5        All facts brought out in the course of the hearing support D.S. and F.S.’s position that they are able to offer J.S1. stability, security, continuity of care, the opportunity to know her own family and identity, and the ability to connect with her biological parents, when appropriate, under the care and protection of her adoptive parents.  J.S1. will know who her parents are, as most adoptive children wish to do, but will be protected while doing so.  D.S. and F.S. will behave calmly, without stress, and J.S1. will not be affected by stress.

 

 

 

ANALYSIS

 

[54]           The issue before the Board is related to the best interests of J.S1., and whether she would be better served being adopted by her uncle and aunt, D.S. and F.S., or by an outside family, unknown to her biological parents.

 

[55]           The Board is gravely aware of the inherent risks to this child posed by an unstable placement.

 

[56]           Both parties agree that there are significant concerns related to the biological parents’ long history of violence, intrusion and intimidation.  They also agree that there are no concerns regarding the suitability of D.S. and F.S. as adoptive parents.  The Society considers that they are excellent candidates, showing maturity, stability, warmth and successful experience in parenting.  The issue remains their capacity to protect J.S1. from her biological parents.

 

[57]           The Board notes that during the course of their assessment, the Society did not provide the Applicants with an opportunity to hear its concerns regarding the disruptive history of J.S1.’s biological parents.  Nor were the Applicants given any guidance or feedback by the Society with regard to their proposed plan for J.S1..  A discussion that might have allowed the Applicants to address the serious concerns of the Society related to their relationship to the biological parents never took place.

 

[58]           The Board heard the testimony of Dr. D.F. who, on the basis of the information before him, recommended that J.S1. be placed in a home outside the family system so that she could have an unfettered opportunity to grow at a distance from the dynamic of her birth family.

 

[59]           During his cross examination, it became apparent that Dr. D.F.’s consultation was completed using inaccurate information regarding the proposed living arrangement for F.S. and D.S., and that Dr. D.F. did not personally meet or interview D.S. or F.S..  Because of the deficiency in the information provided to Dr. D.F. and the fact that he did not meet with the Applicants, the Board gives more weight to Dr. K.’s assessment, which provided a more extensive evaluation of the Applicants and their plan to adopt J.S1..

 

[60]           Dr. K., whom the Society accepted as an expert, testified that in her opinion, D.S. and F.S. could successfully protect and nurture J.S1..  She understood the concerns of the Society and thought that the Applicants could cope well with the issues of J.S1.’s security.  The Applicants had successfully set boundaries with the biological parents in the past, had a history of no contact over many years, and she believed, could set boundaries in the future.  Although she agreed that a stressful environment would not be good for J.S1., she felt that the Applicants would not find the situation overly stressful, based on their previous skill in setting boundaries.  The biological parents might try to cause trouble, but she felt they would not be successful.

 

[61]           Additionally, Dr. K. was convinced that the Applicants would deal appropriately with J.S1.’s grandmother and brother, and would not harbour resentment at having to separate themselves from that part of their family. 

 

[62]           Dr. K. was of the opinion that there was no greater risk of family breakdown in this situation than in any other family.  The Applicants would recognize the need for professional help, if necessary, and be open to it.  She was positively impressed with the Applicants and believed that they could provide secure boundaries around J.S1., and were excellent candidates to adopt and parent J.S1..

 

[63]           The Board observed that the Applicants in their testimony demonstrated a depth of maturity, understanding and firmness which would appear to enable them to offer J.S1. the required stability and security.  In the Board’s view they have the emotional, physical, and financial resources to protect J.S1. from potential threats by her biological parents.  They have made plans to ensure the safety of J.S1. in her physical environment, at home and at school, and have indicated that they will use all resources, legal and professional, where necessary. 

 

[64]           The Board is of the view that it would be in the best interests of J.S1. to grow up in a family where, over time, she has the opportunity to know her own biological relatives and to understand her identity, important issues in the future for J.S1..  This opportunity is being offered by the Applicants who have indicated that they can provide her with stability and security within her family framework.  They have indicated that they will, over time, provide J.S1. with a gradual introduction to her relatives while providing her with the security she requires. 

 

[65]           Therefore, in light of the history of excellent parenting by the Applicants, their plans to protect J.S1. from her biological parents, the positive recommendations of Dr. K., and the importance for J.S1. to be a part of her own family, the Board concludes that it is in the best interests of J.S1. to be adopted by the Applicants pending the successful completion of the homestudy process.

 

DECISION

[66]           For the reasons stated above, the Board concludes that it is in the best interests of the child J.S1. to be adopted by the Applicants, subject to the completion of the visitation phase, between the child and the applicants, of the home study.

 

 

 

[67]           Consequently, the Board rescinds the Society’s decision to refuse the adoption application of D.S. and F.S..

 

 

                                                                                                                        ________________

                                                                                                                        Suzanne Gilbert

                                                                                                                        Chair

 

 

 

                                                                                                                       

                                                                                                                        ________________

                                                                                                                        Celia Denov

                                                                                                                        Panel Member

 

 

 

                                                                                               

                                                                                                                        ________________

                                                                                                                        Alina Lazor

                                                                                                                        Panel Member

 

 

Dated at Toronto, Ontario on this 2nd day of June, 2010


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