Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and Jake [2020] NSWChC 2 Hearing dates: 10 March 2020 Date of orders: 18 March 2020 Decision date: 18 March 2020 Jurisdiction: Care and protection Before: Children's Magistrate Hayes Decision: The Court directs the Secretary to prepare a different permanency plan Catchwords: Care and protection – Short term orders – Permanency principles - Adoption Legislation Cited: Children's and Young Persons (Care and Protection Act 1987 Cases Cited: The Secretary of the Department of Communities and Justice (DCJ) and the Stonsky Children [2019] NSWChC 8 Department of Communities and Justice (DCJ) and Teddy [2020] NSWChC 1 Category: Procedural and other rulings Parties: The Secretary The Mother (Not engaged) The Father (Not engaged) The Child Representation: Ms Askew, solicitor for the Secretary Ms Forshaw, solicitor for the child as the Independent Legal Representative File Number(s): 2019/00274605 Publication restriction: Pseudonyms have been used in order to anonymise the children and parties JUDGMENT Background 1. These proceedings concern Jake, 7 months old. 2. Shortly after birth, Jake was admitted to the Neonatal Intensive Care Unit with breathing difficulties. Urinalysis and meconium tests detected methamphetamine and metabolite. 3. Earlier that day, the father had requested an ambulance because the mother had complained of abdominal pain, vaginal discharge and stomach cramping. 4. On ambulance arrival, the mother had left and was located 30 minutes later. Paramedics observed that the mother was heavily pregnant and had not received any ante natal care nor had seen a doctor during the pregnancy. Her hygiene level was observed to be very poor; she appeared to be substance affected and erratic. Police found an ice pipe in her car along with multiple syringes and half a bottle of rum. 5. Care proceedings were commenced on 3 September 2019. That day, Jake was placed in a kinship foster care placement with the proposed adoptive parents, Patrick and Anthony. 6. The mother and father have not participated in the Care proceedings. 7. On 4 September 2019 the Children's Court made an interim order allocating all aspects of Parental Responsibility (PR) to the Minister. 8. On 2 October 2019 the Children's Court found Jake was in need of care and protection and the matter was established. 9. On 15 January 2020 the Secretary filed a Care Plan pursuant to s 78 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). An addendum was filed on 13 February 2020. 10. The Secretary's assessment is that there is no realistic possibility of restoration of the child to the parents within a reasonable period, having regard to the evidence that the parents are unlikely to be able to satisfactorily address the issues that led to the removal of the child. Issues include homelessness, mental illness, substance abuse problems, domestic violence, lack of ante natal care and limited insight into child protection concerns. 11. The Independent Legal Representative (ILR) supports the Secretary's assessment but was not satisfied with the permanency planning. The matter was set down for hearing on 10 March 2020. 12. At hearing, the matter proceeded by way of evidence filed and submissions made. The Court accepted the assessment of the Secretary, finding that there is no realistic possibility of restoration to either parent within a reasonable period. 13. The Court then considered alternative placement as part of the permanency planning. The Court adjourned the matter to 18 March 2020 for decision. Issues not in dispute 1. The Care Plan makes provision for the allocation of all aspects of Parental Responsibility to the Minister for two years. 2. The Care Plan identifies adoption as the kind of placement proposed. 3. The proposed adoptive parents, Patrick and Anthony do not seek guardianship. They seek adoption. 4. Adoption would be a good outcome for Jake. Issues in dispute 1. The ILR contends that adoption is premature and that permanency planning is not achieved; and supports a PR order to the Minister until the child attains 18 years of age. 2. The ILR contends that the Court ought to apply the principles in Department of Communities and Justice (DCJ) and Teddy [2020] NSWChC 1, particularly in interpreting s 79(9) in that the Care Plan is not a plan 'involving' adoption. 3. The Secretary submits that permanency planning has been appropriately and adequately addressed. The Secretary argues that the Court ought to be guided by the decision of The Secretary of the Department of Communities and Justice (DCJ) and the Stonsky Children [2019] NSWChC 8. Findings of fact relevant to issues in dispute 1. In Re Stonsky, as in this matter, the proposed adoptive parents wish to pursue adoption. They were assessed as carers and the placement is progressing well. 2. In Re Stonsky however, the proposed adoptive parents had previously, successfully, been through the adoption process, including a positive adoption assessment for three other children. They had eight years experience as foster carers and had worked with birth families. They had over three years' actual experience as parents of three children. The Court assessed that the proposed adoptive parents had 'runs on the board' for providing a safe, nurturing, stable and secure environment. They had a demonstrated capacity to be adoptive parents with a proven commitment to adoption. 3. This contrasts with Jake's proposed adoptive parents. 4. The proposed adoptive parents have not previously been through the adoption process or the preliminary steps regarding an adoption. They have not had an adoption assessment. They have had no experience as foster carers and, prior to 3 September 2019, no parenting experience. 5. In Re Stonsky, the proposed adoptive parents had many years of practical parenting experience together with significant knowledge of adoption prior to committing to further adoption. 6. In contrast, there is no evidence that Patrick or Anthony had contemplated the care of a child until, at least after Jake was born. On page 11 of the Relative or Kinship assessment report when Patrick was asked to care for Jake, he stated: "this ask was like a shock at first and was out of the blue." 7. In Re Stonsky, the Care Plan had an adoption timetable with finalisation of adoption within 2 years. 8. That is not the case in this matter. On page 24 the Care Plan states that 'Patrick and Anthony are supported in applying for adoption orders at the end of the 2 years. 9. On page 16, the Care Plan states: "…preparing Patrick and Anthony for a period of 12-24 months at the end of which DCJ will apply for adoption orders." 10. Whilst the addendum to the Care Plan asserts it is possible for an adoption order to be sought within 2 years the wording of the Care Plan contemplates the application for adoption orders at the end of 2 years or at the end of 12-24 months. 11. The short term order expires in 2 years. 12. In Re Stonsky, the question of a two year order resulting in further proceedings was considered. It was observed, that because Supreme Court proceedings would be on foot, if there was delay in adoption the Supreme Court could make an interim order for PR without the necessity for further proceedings. 13. In this matter, if the application for adoption orders is not till 'at the end of 2 years' and the short term orders expire in 2 years there would be no Supreme Court remedy and further proceedings by way of a s 90 would be inevitable to avoid the child being returned to unsuitable parents. 14. This would then beg the question: if the Court approved the Care Plan with PR to the Minister for 2 years knowing that adoption would not be applied for until after the two years then what is the change of circumstances that would address the s 90 threshold. The relevant legal framework 1. The Care Act sets out a series of principles governing its administration. These principles are largely contained in s 9. 2. The objects of the Act are set out in s 8, and include s 8(a1): recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles. 3. Permanency planning means the making of a plan that aims to provide a child with a stable placement that offers long-term security and meets their needs and avoids the instability and uncertainty arising through a succession of different placements or temporary care arrangements: s 78A(1). 4. Permanent placement is to be made in accordance with principles prescribed: s 10A(3). 5. Section 79(9) states that the maximum period for which an order may be made allocating all aspects of parental responsibility to the Minister, following approval of a permanency plan involving … adoption, is 24 months. Integrating facts and law 1. In Re Stonsky, the Care Plan for adoption was found to be real - meaning actual, not merely possible. 2. In Re Teddy, the Care Plan was found to contemplate the possibility of an outcome. 3. In this matter, the Care Plan is what is hoped to occur. 4. On the evidence the adoption plan is aspirational, creating uncertainty as a short term order if adoption does not proceed. Therefore, the Care Plan does not offer long-term security. 5. I accept the ILR submission that the consideration of adoption is premature. Thus, the Court cannot be satisfied that the Plan meets the needs of the child. Consequently, the planning has not been appropriately and adequately addressed. 6. The Care Plan contemplates an application for adoption to be made some time in the future; likely after the short term order expires resulting in further proceedings and uncertainty. Findings 1. The permanency plan is not approved. 2. As the permanency plan is not approved s 79(9) has no application. Order 1. I make a formal finding under s 83(7) that the permanency planning for the child has not been appropriately and adequately addressed and invite the Secretary to prepare and file a further Care Plan. Further issues raised by ILR Contact 1. The Care Plan recommends monthly supervised visits with the mother and father, supervised by DCJ contact workers or the Carers. The ILR submits that contact with the parents is untested and it is unclear how contact will be facilitated. 2. On 29 August 2019 the father attended hospital and asked medical staff to see his child. The father spoke to a DCJ caseworker prior to the contact visit. The father advised that he and the mother were homeless and were 'couch surfing'. The father had no contact number and no phone. At contact, the father declined to hold the baby stating he did not want to get attached. After a few minutes he left, agreeing to attend the CSC. The father has not contacted the hospital or DCJ to seek contact or information about Jake. The father's whereabouts are unknown. 3. On 30 August 2019 the mother agreed for the DCJ caseworker to purchase a phone for her so she could be contacted for the purpose of contact and court. That day, the mother discharged herself from hospital against medical advice. The mother has not contacted the hospital or DCJ to seek contact or information about Jake. The mother's whereabouts are unknown. 4. Jake is in a kinship foster care placement, on the paternal side. 5. The Carers are cautious regarding contact on the maternal side. 6. The Care Plan proposes that the Minister have PR for 2 years. DCJ are seeking the whereabouts of the mother and father. DCJ contact workers can supervise contact if it is to occur. 7. I am satisfied that the Care Plan appropriately and adequately addresses contact. The Child's health 1. The Care Plan notes no disability or medical diagnosis regarding Jake. The ILR submits that the Care Plan lacks detail as to Jake's health given that he was born with methamphetamines in his system. 2. The affidavit of Annah Jamba of 1 November 2019 refers to the completion of an Out-of-Home Care (OOHC) Health Pathway referral with regular updates as to health with no concerns expressed as yet. 3. There were no health issues identified at a follow up appointment with Jake's General Practitioner on 18 September 2019. 4. On 27 September and 18 October 2019 visits from the Community Early Childhood Nurse reported that Jake was gaining weight and no health anxieties were identified. 5. No health fears have been raised by the conscientious Carers. 6. I am satisfied that the Care Plan appropriately and adequately addresses Jake's health. The Cultural Plan 1. The Care Plan notes the child's cultural identity as Filipino. The ILR submits that the Cultural Plan in the Care Plan is inadequate. 2. The father's cultural identity is Australian. The mother's cultural identity is noted as Filipino. 3. The maternal grandmother is identified as a significant family member who could support Jake's cultural needs. The maternal grandmother's past drug abuse and neglect impacted upon the mother's childhood. Presently, the maternal grandmother has expressed the view that she does not wish for phone or face to face contact with Jake. 4. The Care Plan sets out the strong commitment that the Carers have in preserving the child's identity, language, cultural and religious ties. This Plan includes practical arrangements such as storytelling, picture books; and attendances at cultural outings, fiesta, religious occasions and food events. The DCJ multicultural caseworker was consulted in the preparation of the Care Plan. Further, the Carers currently have regular visits with the Carers of Jake's siblings enabling Jake to participate in cultural activities with his brothers. The Carer's have also identified Greek heritage on the paternal side and were self-motivated to ensure that that cultural tie is maintained. 5. I am satisfied that the Care Plan appropriately and adequately addresses s 9 (2) (d). Way forward 1. The Court agrees with the Secretary's submission that the Relative or Kinship assessment report regarding Patrick and Anthony is very impressive and persuasive. 2. It is not in issue that adoption would be a good outcome for Jake. 3. If there is a positive adoption assessment; and if the proposed adoptive Carers still seek adoption; and the Care Plan is reworded to, firstly, make clear who is applying for adoption and secondly that the adoption will be applied for within 2 years then the Court would be satisfied that it is a permanency plan. The Court would also be satisfied that the Plan 'involves' adoption thus, satisfying the test in Re Teddy. The Court therefore, would approve a short term order. 4. The benefit of a short term order, comprehensively covered in the Secretary's submission, is that it provides greater focus on casework planning to secure long-term permanency. This is consistent with the paramount concern. 5. In the alternative, the Court would approve a Care Plan with the rewording and with PR to the Minister till 18 years of age. The Court would then be satisfied that this is a permanency plan, albeit not one involving adoption when applying Re Teddy. 6. I will adjourn for a short time to enable the Secretary to consider; and for the parties to have a discussion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2020