Band to appeal decision to scrap adoption policy

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Sturgeon Lake First Nation is appealing a recent court judgement that struck down a provincial government policy requiring band approval before First Nations children in care can be put up for adoption.

The Dec. 10 ruling by Madame Justice Jacelyn Ann Ryan-Froslie of the Saskatchewan Court of Queen's Bench found that the province's policy contravened the Canadian Charter of Rights and Freedoms by limiting the rights of First Nations children.

In her judgement Ryan-Froslie said that, given the past record of governments in Canada when it came to apprehension and adoption of First Nations children, the reasons for creating the policy were "laudable ones." But while the policy works to keep First Nations children from being adopted into non-Aboriginal homes, it is also keeping them stuck in a foster care "limbo" which sees them moved from foster home to foster home and can have "far-reaching and devastating" effects.

The case before Ryan-Froslie revolved around five brothers and sisters who had spent much of their lives within the foster care system. While all were described by case workers as adoptable, none of the children had been put up for adoption because, as members of the Sturgeon Lake band, the province's policy required band approval of such a move, and no such approval had ever been given.

The two oldest children, a boy, age 13 and a girl, age 12, entered the foster care system for the first time when they were five and four and have each been in at least 13 different foster care placements.

Their eight-year-old sister has spent more than five years of her life in foster care and has been through more than 20 placements. This constant shuffling has kept her from forming any meaningful attachments and, according to a registered psychologist who assessed the girl at the request of the court, she suffers from Reactive Attachment Disorder as a result, which can manifest itself in aggressive or inappropriate behaviour.

A younger brother, age four, has spent all but 15 months of his life in foster care, while the youngest, a girl, 11-months-old at the time of the court decision, was apprehended at birth and has spent her entire life in foster care.

While legal counsel for Sturgeon Lake First Nation claimed the band was simply asserting its Aboriginal right to speak for the children in refusing to approve adoption, the judge rejected that argument, stating she found no evidence that such a right was guaranteed under the Charter.

What the Charter does guarantee in Section 7 is "the right to life, liberty and security of the person." By keeping them in foster care without hope of a permanent adoptive home, the province's policy is in contravention of this Charter right, Ryan-Froslie declared.

After striking down the provincial policy and directing the Department of Community Resources and Employment (DCRE) to "deal with First Nations children in a manner consistent with their best interests and to place them for adoption where appropriate," Ryan-Froslie added conditions to the permanent orders for the five children whose futures the case was held to decide.

The two oldest children will remain in their current foster home, and cannot be removed without a court order. While their foster mother was concerned that adopting them would cause problems between the two and the other foster children in their care, Ryan-Froslie found it would be in their best interest to remain in the home. DCRE must continue to arrange and fund visits between the two and their biological mother and siblings at least once a month, to arrange visits with their maternal grandmother, and to arrange and fund visits by the children to their reserve for cultural events at least twice a year.

The three younger children were to be immediately registered for adoption, and are not to be removed from their current foster placement without a court order until placement for adoption occurs. The adoptions are to be open, alowing the children to continue contact with their biological mother and siblings and with the Sturgeon Lake band. A recommendation was also made that the band provide mentors for the children and their adoptive families to teach them about their Aboriginal ancestry and ensure they participate in cultural events.

Sturgeon Lake First Nation isn't appealing the judge's decisions regarding the children, explained Prince Albert Grand Council Grand Chief Gary Merasty.

"The band is relatively happy with the order that was made with respect to the children. What they're not happy with, and what we're not happy with, is the policy being struck down. Only that," he said.

"We do strongly believe that it is our right, constitutionally, based on Section 35, that we do have a right to have a say in the youth of our community, of our bands. We do that every day already when it comes to education, health, justice and other programs. So why not in child and family service cases?"

Problems aren't happening because the province's policy is flawed, but because of a shortage of federal funding for First Nations-based child and family service agencies, Merasty said.

Many times First Nations refuse to approve adoptions because they don't have enough information on the case to make an informed decision, he said, adding that First Nation agencies aren't able to stay on top of cases involving member children living off-reserve because they aren't receiving enough money and support from the federal government.

"It's a real chronic funding issue and our agencies are so overloaded with their on-reserve work that they have no mechanism, no funding and no personnel to work with the province on the off-reserve issues. Not that they don't want to-they want to dearly-but they can't with the chronic under-funding that they experience and the lack of political will on the part of the provincial and federal leaders to establish bilateral or even trilateral communication on proper ase management of these children."

Joanne Crofford, Saskatchewan's Minster of Community Resources and Employment, agrees with Merasty.

"The province, we agree 100 per cent with him. He just couldn't be more right, because it doesn't matter what you do, it takes resources to do it," she said.

Crofford is hopeful the judge's ruling will jumpstart discussions on what more can be done to help keep children in care within their extended families or communities, but in the short-term, she doesn't expect a lot of changes in the way the department deals with First Nation children in care.

"Hopefully the appeal will proceed quickly, but in the meantime we're still looking at ways to continue to act on the principle that underlies the veto power, which is to keep children in their communities and with extended family," she said.

"I can't say there will never be a situation where a child would be adopted where the band would prefer they weren't, but I certainly don't see it being any kind of shift in the department's policy."