B.D. v Alberta (Director of Child Welfare), 2013 ABQB 679

Court of Queen ’ s Bench of Alberta Citation: B.D. v Alberta (Director of Child Welfare), 2013 ABQB 679 Date: 20131115 Docket: FL01 16166 Registry: Calgary Between: B.D. and K.D. Appellants - and - The Director of Child Welfare Respondent Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2. No one may publish the name or photograph of a child, or of the child's parent or guardian, in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: This judgment is intended to comply with the restriction so that it may be published. Corrected judgment: A corrigendum was issued on December 6, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. _ ________________________________________ ______________ Oral Reasons for Judgment of The Honourable Madam Justice K.M.

Eidsvik _________________________________________ ______________ Appeal of the judgement of The Honourable of Judge R.J. O’Gorman Dated the 28 th day of March, 2013 (unreported Reasons for Decision , Docket: 120743448W1) [ 1 ] This matter comes before me as an appeal of the decision of Judge O’Gorman granting the Director of Child Welfare’s

[ 1 ] This matter comes before me as an appeal of the decision of Judge O’Gorman granting the Director of Child Welfare’s application for an Order of Permanent Guardianship of the children of the Appellants, A.D. and N.D., now 2 and 1 respectively. [ 2 ] There is no question that the Appellant parents, B.D. and K.D., love their children very much and want to be able to parent them. However the issue that the Director had was the ability of the parents to meet the children’s needs and child protection concerns.

The parents have high needs themselves because of cognitive, emotional and behavioural issues and the children are developmentally delayed. However the parents had received a lot of support and urged the trial judge to accept their idea of a full time support person to help them and to return the children on a temporary basis. [ 3 ] The trial with respect to the application lasted 6 days. Evidence was led from: - The in-home support worker who worked with the parents between June 8, 2011 (before A.D was born on July 13 2011) and March 2012, Ms. Selig - The family physician, Dr.

Churcher - A child welfare worker who started to get involved in July 2011, Ms. Santos - A family counsellor who provided couple counselling, Ms. Eld - A psychology expert in parenting assessments and psychological and educational testing, Dr. Matsalla - An expert in infant mental health and childhood development, Ms. Nagy - A child welfare worker who was involved in the initial safety assessment in June 2011, Ms. Govender - A counsellor for the father, Ms. Hazlewood - A potential “supportive roomate”, Ms. Brimacombe, and - A worker with PDD who works with adults with devlopmental delays, Mr.

Aulakh [ 4 ] The parents also testified at length. [ 5 ] In his reasons, the trial judge outlined a

summary of all of the evidence led in his judgement which comprehensively reviewed the parents cognitive, emotional, behavioural and parenting abilities. He then turned to the appropriate legislation and case law that outlines the factors and tests the court must apply when considering an aplication to terminate a parent-child relationship.

In particular, s.1 and 2 of the Child Youth and Family Enhancement Act , RSA 2000, C-12 (“the Act ”). [ 6 ] The trial judge agreed that there is nothing inherent in a diagnosis of mental disability that precludes a parent from loving their children or maintaining the child’s safety. However, he noted that here the parents themselves admitted that they could not do it on their own and were proposing a supportive roommate as a realistic parenting option in this situation. [ 7 ] The trial judge did not accept the supportive roommate option.

He found at para 84 that : “it is impossible to imagine how this could occur or succeed”. Firstly, because there is no funding for such an option as in this case and “even if by some chance the supportive roommate arrangement was put in place, there are numerous concerns about the parent’s true willingness to follow through. The fact is that historically the parent’s ability to cooperate and participate with third party agencies is very poor.

Both parents have expressed a dislike when other people have told them what to do, and there is nothing to suggest that this will change in the future.” (para 86). [ 8 ] In sum, the trial judge rejected the application for an adjournment so that further attempts could be made in light of the evidence that anything would change even if given such time and found that it was in the children’s best interest that the permanency planning commence now.

Ground of Appeal [ 9 ] The parents argued that the learned trial judge made an error in law in failing to apply the correct test with respect to the granting of the permanent guardianship Order – and in particular, that he failed to consider the

section 2 factors in conjunction with

section 34 of the Act . Standard of Review [ 10 ] The court’s role in this stage of the proceeding is possibly one of the most difficult ones for parties to understand. Simply stated though, my role in not to re-try the case. I cannot say that in my view I would have given more weight to this or that evidence and come to a different conclusion. Instead my role is to determine: 1. Whether the trial judge used the right legislation and legal tests and 2.

Whether the trial judge applied the facts properly to the legal tests. [ 11 ] Here counsel for the parents agreed that the trial judge did refer to the correct sections of the Act and cases in para 77 to 80 of his decision but argued that he did not do a proper analysis of these tests with the facts before him. [ 12 ] The Director’s counsel suggested then that the proper review is one of mixed fact and law and the test I must apply to

overturn the trial decision is if I find a palpable and overriding error. I agree with the Director’s counsel in this regard. Analysis [ 13 ] In my view, the basic premise of the parents’ argument is that the trial judge did not give enough weight on the evidence that the parents had made some progress with all of the intervention help they received over the last two years and that the trial judge should not have found that the children would be at risk if they were returned to the parents in a supported environment.

Basically, they want me to re-try the case – something that, as I have said, I am unable to do. [ 14 ] It is hard to fault the judge with his finding that the children would be at risk if they were returned to the parents without support in light of all of the professional evidence on this point and the parents’ own admission that this would not be feasible. [ 15 ] As a result, the trial judge had to assess the situation with support. When reviewing the appropriate legislation he quoted in part from the

section of the Act that deals with this at para 80 and in particular s.2(e)(i), which states: If intervention services are necessary to assist the child’s family in providing care for a child, those services should be provided to the family, in so far as it is reasonably practicable, in a manner that supports the family visit and prevents the need to remove the child from the family. [ 16 ] Then at para 85 and 86 he analysed the supportive roommate option and rejected it based on the evidence before him that funding was not available for the option that the parents wanted and that based on prior behaviour, this option in the form that they wanted would likely not work.

In sum, the trial judge, in my view did analyse the evidence based on the correct tests on this point and I cannot re-weigh it. [ 17 ] The parents counsel also argued that the trial judge should have given them more time. This is the same argument that was made before the trial judge himself and rejected. In his view there was no reliable evidence that anything would change no matter how much additional time was given to the parents. Again, I cannot re-weigh this decision.

And in any event, upon a review of the evidence myself it appears that the parents were offered a lot of opportunities to try and learn to meet the minimum standards that would be necessary to have the children returned: they were provided with welfare workers, couple counselling, individual counselling, a thorough psychological work up, medical assistance and child mental health services. Although progress was made, even the parents themselves properly agreed that it would not be enough.

The 24/7 custody of the children by someone else who would live with the parents and who would also have to take care of their needs, was not something that was available one way or another. [ 18 ] The trial judge was sympathetic, as am I, but ultimately he was of the view that the children’s best interest is to have permanent planning made for them that does not involve the parents. This decision was not made lightly, and in my view his decision was supported by the evidence before him and he made no overriding or palpable error in this regard. [ 19 ] Accordingly, this appeal is dismissed.

Heard on the 14 th day of November, 2013. Dated at the City of Calgary, Alberta this 15 th day of November, 2013. K.M. Eidsvik J.C.Q.B.A. Appearances: A. Paul Allyjan for the Appellants Christopher Dylke

for the Respondent _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice K.M. Eidsvik _______________________________________________________ The ban notice for this judgment has been corrected to the Child, Youth & Family Enhancement Act ,

section 126.2.