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Child Protection — Do Foster Parents Have a Right of Appeal?

By: Philip Epstein

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First Nations of Northern Manitoba Child and Family Services Authority v. Manitoba (Minister of Family Services and Housing), 2014 CarswellMan 173 (Man. C.A.): This is an important decision of the Manitoba Court of Appeal that addresses the relatively new section 51 of The Child and Family Services Act, C.C.S.M., c. C80.

These appeal provisions allow foster parents, who object to a decision to remove a foster child from their care, to have that decision reviewed first by the executive director of an agency, then by an authority, and lastly by an independent adjudicator appointed by the Minister of Family Services and Housing. Should those rights of appeal apply when the children have been removed from the care of the foster parents and returned to their natural parents? That is the question that the Court of Appeal answers for the first time in Manitoba.

Two young children were removed from their natural parents because of alcohol and addiction problems and placed with foster parents. After about three years, and as a result of considerable work with the parents who apparently had worked hard to overcome their problems, the children were removed from the care of the foster parents and returned to the natural parents. The foster parents undoubtedly devastated by this turn of events, (since they had had the youngest child since birth), asked for a review of that removal. The agency and the First Nations of Northern Manitoba (the Children's Aid authority) took the position that the appeal process was not available because the children had been returned to their parents and consequently the agency was no longer their guardian and had no jurisdiction. The Minister disagreed and ordered that an independent adjudicator be appointed. That led the Authority to apply to the Court for a termination of rights under the relevant sections of the Act. The application judge held that the provisions of the Act apply to this situation and ordered the independent adjudication to proceed. The Agency and Authority then disagreed and appealed arguing the issue is moot since the children are no longer in the care of the Agency, and this is an undue intervention and duplication of the court's function. That is the Child and Family Services Court has already found that the children are no longer in need of protection.

In a very carefully considered and sensitive judgment, Justice Steel speaking for a unanimous Court of Appeal recognizes that the issue of the placement of the children is now moot and an adjudicator could not and would not order the children returned to the foster parents. However, the Court exercised its discretion to decide the matter and interpret the legislation because the sections have been in force for a number of years and the issue has not been previously litigated. More importantly there are a number of foster parents, agencies, and Authorities for which the issues in this case would be very relevant.

Justice Steel goes on to decide that the legislation should be interpreted to include the right of foster parents to initiate the appeal process even when children have been moved to be returned to their natural parents. Thus, both the agency and the authority had jurisdiction and were required to conduct a review under the appeal provisions within the time limits specified. As indicated in the legislature when these amendments were introduced, the provisions serve a dual purpose, not only to determine the best placement for the children, but also to provide due process for foster parents.

Foster parents are often the ignored parties in the process and when children are removed from long term foster care, particularly when the foster parents have been parenting since birth, ignoring the rights of the foster parents is to do them a great injustice. Society depends on persons willing to step up and take on the difficult task of being a foster parent and there must be a minimal degree of protection for them if the process is going to function properly. This is an important and good review of the principles and recognises the important role that foster parents play in our society, and reinforces the view that the legislation should be interpreted and give them the requisite appeal rights.
There is a good discussion in this case of mootness and weighing that issue against the benefits to be gained by a court exercising its discretion to hear a matter that has general importance especially when dealing with children. Justice Steele ends her judgment with the following words of wisdom.

Given the differing nature of the processes and purposes of guardianship of children and licensing of foster homes, the appeal provisions do not create a means of collateral attack upon a decision of a court in a child protection hearing. The purpose of these provisions is not solely about the best interest of the child at the time of removal, nor are they entirely about the rights of the foster parents; the purpose is a dual one and the provisions exist to ensure that a timely and expedited decision be taken that allows for both due process for the foster parents and the best interests of the child.
As I said, this is an important judgment about the rights of foster parents in Manitoba.

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