A. C. v. M. C., 2012 ABQB 410

Court of Queen ’ s Bench of Alberta Citation: A. C. v. Alberta ( Child, Youth and Family Enhancement Act , Director), 2012 ABQB 410 Date: 20120622 Docket: FL01 13068, FL01 13101 Registry: Calgary Between: A. C. and M. C. Appellants - and - Alberta ( Child, Youth and Family Enhancement Act , Director) Respondent Restriction on Publication: No one may publish any information serving to identify a child or guardian of a child who has come to a Minister ’ s or a director ’ s attention under the Child, Youth and Family Enhancement Act .

See the Child, Youth and Family Enhancement Act , s. 126.2 . _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C. A. Kent _______________________________________________________ [ 1 ] This is an appeal from an order of permanent guardianship of R. R was born in December, 2002. The family came to the

[1] This is an appeal from an order of permanent guardianship of R. R was born in December, 2002. The family came to theattention of the Director as a result of an incident which occurred on February 13, 2010. At that time, in the household were O, thebiological child of the mother and father, A, the biological child of the father and R, the biological child of the mother and father. Themother and father had separated, but the mother had asked the father to return to live with her and the children because she was having adifficult time managing.

On February 13 in the early morning hours, O arrived at a 7 Eleven store, completely naked. Police were calledand in turn they called the Director. O advised the attending social worker that she had been beaten by her father. Apparently he hadbecome angry because O had been smoking marijuana. She said he had beaten her, poured water over her head and inspected hergenitalia apparently to determine whether she was still a virgin. The social worker observed injuries on O's body: bite marks on her rightforearm and hand, belt marks on both upper arms, a swollen jaw and a mark on her forehead.

Photographs of O taken at the hospitalconfirmed bruising. The mother and father do not agree with O's version of events that night, something that I will deal with below. [2] As a result of the investigation, all three children were apprehended. O is now an adult. A returned to Angola to live with hismother. As a result only R was the subject matter of the permanent guardianship application. [3] It is not my intention to review the evidence in detail in this judgment. That has been done by the trial judge.

However, thereare three matters which I do need to deal with because they become relevant to the errors that counsel say the trial judge committed. Thefirst is the incident of February 13. I have set out above what O said happened that night. The mother testified in the hearing. She saidthat when O arrived home on February 13 she had no marks on her body. She said that she knew that O left the home naked but did notcall the police. Her view was that there was no point in calling the police so she went to bed.

She said that when the violence began, shesent the two younger boys, R and A to the basement to avoid the violence. The father did not testify at the hearing. The father has beencharged with assault and those charges have not yet been dealt with. [4] The second matter deals with some photographs of O's genitalia which the mother brought to show a therapist who wasretained to treat R. The mother says that she brought the pictures to show that O was sick because these photographs were created by Oand used by O for internet sexual encounters. The mother said that she had found them in O's room.

Both mother and father were chargedwith possession of child pornography. The charges against the mother were withdrawn, but the charges against the father are outstanding. [5] Finally, I note that even after the trial concluded but before the decision was given, the mother was apparently attempting toinfluence R in terms of these proceedings. During a visit with the child on September 23, 2011, when the supervisor was not in the room,the mother did something that caused the child to cry.

In an interview with the child later, the social worker testified that she learned thatthe mother had told R to tell the foster mother that he wanted to come home and live with the mother. [6] The relevant provisions of The Child, Youth and Family Enhancement Act, RSA 2000, c. C-12 are sections 2 and 34 (theAct). Key principles have emerged from the case law with respect to those provisions. First, the ultimate purpose to be served is the bestinterests of the child. S. 2 emphasizes that enhancing, preserving and supporting the family where possible should be the goal.

S. 34creates a three part process for a judge when determining whether a permanent guardianship order is appropriate. On a balance ofprobabilities, the judge must decide first whether the child is in need of intervention or is the subject of a temporary guardianship order.In this case, there was no temporary guardianship order, so the judge must decide whether the child is in need of intervention. Secondthe judge must decide whether the survival, security or development of the child cannot adequately be protected if the child remains withor is returned to the family.

Third, the judge must decide if it cannot be anticipated that the child could or should be returned to thecustody of the child's guardian within a reasonable time. [7] An appellate court will only interfere with a permanent guardianship order if the judge acted on a wrong principle ordisregarded material evidence, or where the decision is otherwise clearly wrong: T. (M.) v. Alberta (Director of Child Welfare) (2005),2005 ABCA 125 , 42 Alta. L.R. (4th) 99 (Alta CA). Appellant mother's arguments [8] The first argument made by the mother is that the judge failed to establish the three criteria set out in s. 34(1).

Dealing firstwith s. 34(1)(a), the mother says that the criteria used by the judge, namely the incident of February 13, 2010, were no longer inexistence at the time of the hearing. The mother's living circumstances have changed significantly: the father no longer lives in the homeand both of the other children reside outside of the home. The mother notes that in C.B. v.

Alberta (Child, Youth and FamilyEnhancement Act, Director), 2007 ABQB 234, the court said that the operative time to determine if there is a need for intervention is atthe time of the hearing. [9] The second argument is that the judge failed to correctly apply the provisions of s. 2. The mother argues that the judge failedto look to the least intrusive order available and focused more on how R was adapting to the new home than whether he should be

returned to his mother. By analyzing the facts in that way, the mother says that the burden was shifted from the Director to the mother. The judge should not, she argues, be weighing the benefits of the foster family to the mother. The judge also failed to consider s. 2(

f) which provides that if a child has been exposed to domestic violence, there should be intervention services to support the family and prevent the need to remove the child from the home. Next, the trial judge ought to have talked to the child rather than accept hearsay evidence. This is particularly so because R expressed on some occasions affection towards his parents. Finally, the judge considered two factors that should not have been considered.

First, the fact that there is no attachment to his mother should not be considered because nothing in the Act says that the family relationship is to be measured by psychological bonding ( C.B. v. Alberta ). Finally the fact that R has been in care for 486 days should not have been taken into consideration. [ 10 ] The third argument is that the judge combined the requirements for s. 34(1)(

b) and (c). The mother argues that by combining the two the judge failed to properly consider whether the child "should or could" be returned to the mother. [ 11 ] The final argument is that the judge disregarded several material facts so that the decision is clearly wrong. There are four parts to this argument. First, the trial judge concluded that R had been exposed to or was the subject of sexual contact without taking into account the fact that R had not witnessed the events of February 13. There was no evidence of any sexual impropriety at any other time.

Second, because R had not witnessed the events of February 13, there was no evidence that he had been emotionally injured. Third, the judge found that there had been a lack of progress by the mother over the 18 months since the child was removed from the home. In that regard counsel cites instances where visitation reports note positive interaction between the mother and R, and instances where R was clearly happy and excited to see his mother and displayed affection towards her. There were also notes that the mother engaged in appropriate parenting.

Counsel notes that given the short visits that were permitted and the short amount of time over which visits had taken place, the mother simply had not had enough time to repair and develop an appropriate relationship. Fourth, counsel says that the judge misapprehended the evidence with respect to the mother's parenting skills. He notes, for example, that in the July/August, 2010, a parenting report talked about positive parenting skills. Argument of the Father [ 12 ] The father is not asking for return of R to him, but supports the mother's appeal and would like to have access to R.

The father argues that everything in this case is premised on what happened on February 13, but the facts of what happened that night are disputed. On the other hand the relationship with the father was shown to be good during visits, except on one occasion. There are two errors in the trial judge's decision. First, the evidence founding the decision that intervention was required (34)(1)(

a) is weak and contested. Second, there is not sufficient evidence to say that R cannot be returned within a reasonable period of time. Argument of the Director [ 13 ] The Director disputes that progress has been made by the mother. He notes that of the five goals set before return would be possible the fourth and fifth goals have not been met. It should be noted that those goals require an admission about what happened on February 13.

He also notes that as late as September, 2011, the mother showed poor parenting judgment when she attempted to pressure R to say he wanted to come home. [ 14 ] Second, he disagrees with the mother's assertion that the judge failed to properly consider s. 2 and the possibility of reunification of the family. He says that the mother's argument is essentially a request for me to reweigh the evidence which I should not do. [ 15 ] On the issue of whether R was a victim of or exposed to sexual abuse, it is not sufficient for the mother to say that R was in another room.

R knew what was going on with O. [ 16 ] The Director disagreed that the trial judge essentially weighed the biological home against the foster home. All she did was consider the foster home in the context of the child and the child's opinion which is a factor that the court may consider (s. 2(d)). [ 17 ] The Director does concede that the trial judge only looked at the February 13 incident when deciding whether intervention was required.

He says that all I need to do is determine whether or not the judge has given sufficient reasons and that I ought not to compartmentalize the reasons so that if she considers facts under one heading, they may be relevant under other headings as well. If looked at in that way, sufficient reasons for intervention existed at the time of the hearing.

Argument of Counsel for the Child [ 18 ] Her main point was that the mother has never acknowledged that there was anything wrong with the parenting of R and no accountability for that wrongdoing. Decision [ 19 ] Dealing first with the requirements of s. 34, I agree with counsel for the Director that I ought not confine myself to what is written under any of the headings used by the trial judge in her reasons.

If I can find in her analysis as a whole that she has addressed the issues, that is sufficient. [ 20 ] I agree that the trial judge erred when she focused only on the events of February 13 when she was determining whether intervention was needed. However, she did consider the ongoing circumstances. At para 131, for example, she found that to return the child to the parents now would put him at risk.

That conclusion can only be interpreted as meaning that intervention was necessary. [ 21 ] Dealing with the issue of whether the child’s survival, security or development could be protected if returned to the family, there are two questions. The first is whether the trial judge was alive to the provisions of s. 2. She was: paras 122, 123, 142 and 147-154. Second is whether the trial judge’s reasoning discloses an error. It is true that in considering this question, initially the trial judge focused on the February 13 incident. Some care needs to be taken in looking at the incident.

It may be that not all the facts were before the trial judge. That is because there are criminal charges outstanding against the father. It would be dangerous to rely only on that incident because it forces the father into a difficult corner: testify in the hearing with a risk that it may be prejudicial in the criminal proceedings or remain silent, as he did, and have unanswered questions. However, that issue is moot since the judge did go on to look at what has occurred in relation to R since February 13: see para 136-146.

If I took a different view of the evidence, I would simply be reweighing the evidence which I must not do. [ 22 ] I also need to be careful about the pornographic pictures that the mother showed to the social worker. Insofar as the father is concerned, charges remain outstanding so a lack of explanation from him is understandable for the reasons set out above. Insofar as the mother is concerned, the photographs and how she dealt with them with the social worker raise flags about her judgment.

That incident is relevant in assessing the overall ability of the mother to parent. [ 23 ] The mother says that the trial judge weighed the advantages of the foster family against the mother. I agree that it would be a mistake to do that, but I do not agree that that occurred in this case. In paragraphs 141, 143-145 and 151-152, the judge considered the foster family in the context of the child’s wishes. There was no error. [ 24 ] The final requirement of s. 34 is to determine if it can be anticipated that the child could or should be returned to the family in a reasonable period of time.

The trial judge considered the amount of support that had been given the family and the lack of success to date. She was guided by the experts. She weighed the risk of harm to the child if she gave the mother another chance against the evidence of what progress had been made. That is the function of the trial judge and I must not second guess the judge. Moreover, although the trial judge did not address the evidence of the social worker about the September 23, 2011 visit it is relevant at this time.

Although the evidence is hearsay evidence given by the social worker, there is no reason to question its reliability. What happened during the visits confirms the trial judge’s conclusion that the mother was not benefiting from the resources that had been provided in the hopes of improving her parenting skills. [ 25 ] Finally, I consider the factual errors the mother says were made. In fact, only one of the conclusions cited by the mother may have been an error. R knew about the incident with O so he was exposed to violence.

Regardless of what actually happened between O and the parents, she was naked and badly beaten when she arrived at the 7 Eleven. The trial judge may have overreached in finding that R was exposed to sexual abuse in the technical sense because we do not have all the facts. However, even giving the parents the benefit of the doubt about the specifics of the incident, something terrible happened to one of their children, something which they either caused or were insensitive to. Finally, the submission that the trial judge ignored the progress the mother made in her parenting skills is not correct.

She simply weighed the positive. comments with other facts and drew her conclusions. I cannot reweigh that evidence.

[ 26 ] The appeals of the mother and father are dismissed. Heard on the 13 th day of June, 2012. Dated at the City of Calgary, Alberta this 22 nd day of June, 2012. C.A. Kent J.C.Q.B.A. Appearances: Fraser Gordon Charles Hotzel & Associates for the Appellant, A. C. Jose Nisa for the Appellant, M. C. Chris Dylke Alberta Justice, Civil Law for the Respondent, the Director, Child and Family Services Julie Hart for R