CL v Alberta (Director of Child and Family Services), 2014 ABQB 780

Court of Queen ’ s Bench of Alberta Citation: CL v Alberta (Director of Child and Family Services), 2014 ABQB 780 Date: 20141217 Docket: FL01 15817 Registry: Calgary Between: CL Appellant - and - The Director of Child and Family Services Respondent Restriction on Publication 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. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.L. Kenny _______________________________________________________

Appeal from the Decision of The Honourable Judge T.D. LaRochelle Dated the 30 th day of January, 2012 ( 2012 ABPC 23 , Docket: 111316493W1) Introduction [ 1 ] This is an appeal of an Order granting the Director of Child and Family Services (the “Director”) permanent guardianship with respect to A.J.L. (the “Child”) born on September 2, 2010. History of Proceedings [ 2 ] C.L., the biological mother of the Child (the “Mother”), is the appellant in the proceedings before me (the “Appellant”). G.W. is the biological father of the Child (the “Father”).

On February 16, 2011, the Director apprehended the Child from the care of her Mother and Father (the “Parents”). On May 11, 2011, the Parents consented to a six-month temporary guardianship order. [ 3 ] On November 9, 2011, the Director applied for a review of the temporary guardianship order and requested that the court grant a permanent guardianship order. The trial proceeded in Provincial Court for a period of 25 days between October 1 and December 13, 2012. [ 4 ] On January 13, 2013, Judge LaRochelle gave a decision, inter alia , granting the Director’s application for permanent guardianship.

That decision was appealed to this Court on February 20, 2013. Issues on Appeal [ 5 ] This appeal raises two issues: 1) Did the Honourable Judge T.D. LaRochelle fail to consider his obligations and incorrectly analyze sections 2 , 27 , 31 and 34 of the Child, Youth and Family Enhancement Act, RSA 2000 c C-12 [CYFEA] in granting the Permanent Guardianship Order? 2) Should this Court admit fresh evidence on this appeal? Background [ 6 ] The Child was born on September 2, 2010. The Parents were living together at the time. On November 6, 2010, the Mother took the Child to a birthday party.

When she returned home, the Father noticed that the Child’s right arm was not moving. The Child was taken to the hospital the next day where she was diagnosed with a broken upper right arm, broken lower right arm, two broken fingers and bruises on her thighs. Police were to interview the Parents, but the Mother and Father failed to attend. The Child was returned to the Parents on November 30, 2010. [ 7 ] On January 22, 2011, a well-baby visit took place. The Child had gained only one pound since November 6, 2010.

On February 9 or 10, 2011, a friend suggested taking the Child to the hospital because the Child’s leg did not look good. On February 14, 2011, the Parents were directed by Child and Family Services to take the Child to the hospital. The Child was found to have a broken thigh bone, broken leg bones in both lower legs and a broken left arm. The evidence was that the Child was likely injured on two more occasions in late January 2011. The Child was apprehended on February 16, 2011 and placed in foster care. [ 8 ] On March 21, 2011, the Mother finally attended an interview with the police.

The Mother suggested the Father may have accidently hurt the Child in his sleep. She said that she caused the Child’s thigh fracture when she rolled on the Child. Neither explanation accords with the Child’s injuries. The Mother was asked to attend therapy but refused, choosing instead to speak to her in- home support worker. [ 9 ] In April of 2011, the Child was examined by a dental hygienist, who noted two teeth had grown in discoloured and bruised, which is usually a result of trauma, such as a blow or force to the mouth.

This trauma would have occurred when the Child was in the care of the Parents. [ 10 ] The Child was brought into the well-baby clinic in mid-May of 2011 and was back up to her expected weight after two months in the care of foster parents. A Temporary Guardianship Order (“TGO”) was granted on May 11, 2011 and the Mother was directed to attend counselling and therapy. In September 2011, the Mother attended walk-in sessions for therapy.

[ 11 ] A parenting assessment was completed by Dr. During, and a report was issued on October 13, 2011. The report contained a number of recommendations including a recommendation that the Mother and Father stay apart from each other, given their very unhealthy relationship. In November 2011, the Mother started therapy. She finished therapy in April 2012. Between the issuance of Dr.

During’s report in October 2011 and the start of the Permanent Guardianship Order (“PGO”) trial in October 2012, the Mother and Father got back together again, off and on for periods of time, without telling the therapist or other assessors. [ 12 ] Dr. Peter Choate issued a risk assessment report in July of 2012. He was unable to recommend the return of the Child to either Parent because the individual who caused the injuries, be it the Mother or the Father, was still not ascertained and because he was concerned about the Father’s mental health issues and the Mother’s delay in seeking therapy.

He determined the Mother suffered from co-dependant personality traits, which would explain her continued interactions with the Father, despite all recommendations against such interaction. Dr. Choate felt intensive counselling could help the Mother make improvements. [ 13 ] The PGO trial lasted for 25 days and included testimony from 32 witnesses. The trial judge adjourned the trial on November 7, 2012 to obtain more information on what therapeutic options might be available for the Mother. The Director advised the trial judge that it was unable to find anyone who could provide that service.

The Mother indicated that she had found a counsellor for that purpose. [ 14 ] At that same time, evidence from one of the social workers indicated that she had observed the Mother speaking with the Father in the courthouse cafeteria. It appears that this was a turning point for the trial judge, who then decided to continue on with the trial and hear argument from all parties in December 2012.

He rendered his decision on January 30, 2013, granting the PGO and denying access to either Parent. [ 15 ] Upon appeal of the trial judge’s decision, the order denying access was set aside by agreement and the Mother and Father have continued to have supervised access to the Child since that time. After the PGO was granted, the Child was placed with the paternal grandparents with the intention that the grandparents would adopt the Child. The Child has been in their care since early 2013. Standard of Review [ 16 ] The standard of review for questions of law is correctness.

The standard of review for questions of mixed law and fact is whether the judge made a palpable and overriding error ( Howsen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235). [ 17 ] The Appellant argues that the errors of the trial judge are all errors of law. I disagree. The alleged errors arise as a result of the application of the legislation to the set of facts found by the trial judge.

This is a question of mixed law and fact; therefore, the decision should not be overturned unless the appellant demonstrates that the trial judge made a palpable and overriding error. [ 18 ] An appellate court can interfere in the granting of a PGO only where the judge has acted on a wrong principle, has disregarded material evidence, or where the decision is otherwise clearly wrong: T (

M) v Alberta (Director of Child Welfare) , 2005 ABCA 125 , 363 AR 306. Position of the Parties on the Appeal

a) Position of the Appellant [ 19 ] The Appellant’s main position on appeal is that the Appellant did not receive the intensive counselling services recommended by Dr. During and Dr. Choate by the time of trial and, as such, the trial judge did not properly explore whether the Child could or should be returned to the custody of the Appellant within a reasonable period of time after she received the services: CYFEA s 34(1)(c). [ 20 ] The Mother received nine or ten counselling sessions with a counsellor through a contract with The Director before the trial.

After the contract expired, the contractor did not provide further sessions to the Mother. Both Dr. During and Dr. Choate gave evidence that treatment would be difficult and would take time, but that it was possible for the Mother to benefit from treatment. Both experts indicated the counselling the Mother had received was useful, but did not go far enough. [ 21 ] On November 6, 2012, the trial judge contemplated adjourning the trial to allow the caseworker to see if it was possible to locate a counsellor to provide the appropriate counselling services to the Mother.

The matter came back to court on November 27, 2012, and at this time, the caseworker indicated she was not successful in locating an appropriate counsellor. On this same date, the caseworker gave evidence about the encounter she observed in the cafeteria between the Mother and the Father. The trial concluded in December 2012 after argument by all counsel. [ 22 ] The Appellant refers to the decision of RS v Alberta ( Child, Youth and Family Enhancement Act , Director) , 2012 ABQB 715 , 552 AR 290 [ RS ]. In that case, a father appealed a PGO and sought to have his special needs children returned to him.

The appeal justice commented that because appropriate supports were not offered to the father, it was an error to assume that his children could not be returned to him in a reasonable period of time after he received services that would allow him to understand and deal with his issues. The PGO previously granted was overturned and a further TGO was ordered. [ 23 ] The Appellant argues that the situation is the same here as in RS .

The Mother had not received the intensive therapy she required and so she was unable to put into practice what she learned about her relationship with the Father and her co-dependency issues. In addition, the Appellant argues it was an error for the trial judge to indicate, as he did at paragraph 115 of his reasons, that “the mother’s judgment is so dysfunctional that on a balance of probabilities it cannot be concluded that her issues will be sufficiently resolved within a reasonable period of time”: AJL (Re) , 2013 ABPC 23 (the “ Reasons ”).

The Appellant submits this is in error because the trial judge used the test of “balance of probabilities” whereas section 34(1) (

c) of the CYFEA uses the words “could or should” be returned with a reasonable period of time. Elimination of risk is not consistent with the use of the word “could” in the legislation: RS at

para 93 .

b) Position of the Director [ 24 ] The Director takes the position that the Appellant has not met the standard of review: the trial judge did not make a palpable and overriding error, act on a wrong principle, or disregard material evidence. The Director further argues that this Court must give deference to the trial judge’s findings of credibility. [ 25 ] The trial judge specifically referred to the neglect suffered by the Child, the injuries to the Chil d , and the involvement of the Parents in the injuries: Reasons at paras 102, 104, 105, 111.

Ultimately the trial judge determined, based on all of the evidence before him, that the Child could not be returned to the Mother within a reasonable period of time: Reasons at paras 115-118.

The concerns identified throughout the Reasons include an actual lack of sufficient progress made by the Mother in dealing with her own issues, the failure of the Mother to take the Child for appropriate medical care when clearly necessary, the failure of the Mother to enter therapy as recommended and offered by the Director after the Child’s injuries, the lack of cooperation by the Mother with Child and Family Services and with the police investigating the injuries, and the Mother lying to professionals about contact with the Father, including not telling Dr.

Choate during his assessment that she was still seeing the Father. [ 26 ] The trial judge was cognizant of the factors set out in

section 2 of the CYFEA and the desirability of maintaining the family unit if at all possible. One of the issues of concern, however, was the time frame set out in

section 33 of the CYFEA . By the time of trial, the Child had already exceeded the maximum time allowed in care, having been in the care of the Director since February 2011. The CYFEA allows for an extension of the time a child can be in care as the result of the adjournment of a hearing if the court determines it is in the best interests of the child to do so.

The evidence of the experts was that at the outside the Child should be placed by her third birthday, leaving a window of only six months for the Mother to exhibit the improvements required to allow the Child to be placed in her care. [ 27 ] The Director disagrees with the Appellant’s characterization of the trial judge’s mid-trial remarks in considering whether to grant an adjournment to allow the Mother further counselling.

The Director argues these were not the findings of the trial judge in the Reasons , which were delivered after full argument by all counsel; thus, failure to ultimately grant the adjournment was not an error. The trial judge had many concerns about whether the Child could be returned within a reasonable period of time, but the incident with the Father at the courthouse “perfected” his conclusions that return was not possible. [ 28 ] The Director is of the view that the trial judge made no error and considered all of the facts in light of the law in his thorough Reasons. The appeal should be dismissed.

c) Position of Counsel for the Child [ 29 ] Counsel for the Child adopted the Director’s position with respect to the appeal itself. Decision on the Appeal [ 30 ] I am satisfied that the trial judge made no palpable and overriding error. He did not act on a wrong principle or disregard material evidence, and his decision is not clearly wrong on the evidence. [ 31 ] The trial judge heard 32 witnesses over 25 days of trial.

He was aware that the Mother had undergone some counselling, but that two of the experts said that she needed much more intensive counselling to deal with her co-dependant personality traits, which caused her not to act in the best interests of the Child. Both of those experts said that the continued intensive counselling the Mother needed would take time and be difficult. The trial judge, mid-trial, and before hearing from counsel, contemplated allowing further time for the Mother to obtain intensive counselling.

He was impressed with her dedication to continue with counselling and to do all that she was requested to do by the Director. He was hoping she could finally see what the problem was and work towards addressing it. When he found out that the Mother had contact with the Father at the courthouse, in the face of a criminal no contact order, he realized that not much progress had been made since the Child was apprehended. Additionally, in the face of the evidence from the experts, especially Dr. During and Dr. Choate, he realized any progress was still far off.

He was satisfied that the Child could not be returned to the Mother within a reasonable period of time and that it was in the best interests of the Child to move forward with her life at this stage. [ 32 ] The trial judge was alive to the requirements of the CYFEA , especially sections 2 and 34 , and was satisfied that despite all of the efforts made by the Mother to date, given the additional time required for the Mother to make the necessary progress, it was not possible to return the Child within a reasonable period of time. [ 33 ] The trial judge made no reviewable error.

Fresh Evidence [ 34 ] All parties to this appeal agreed to the introduction of fresh evidence. The Director and counsel for the Child were not satisfied that the trial judge committed an error. They were, however, content to have the fresh evidence admitted at this appeal so that the court would have before it all information regarding the current circumstances of the Mother and the Child. The Appellant and Ms. O’Sullivan

[ 35 ] The Appellant and her counsellor, Ms. Tara O’Sullivan, gave evidence on the fresh evidence application. Ms. O’Sullivan was one of the names given to the trial judge by Dr. Choate at the time the trial judge was considering whether to grant an adjournment to allow the Mother to partake in further counselling. [ 36 ] The Appellant commenced counselling with Ms. O’Sullivan in December 2012, just before the PGO was granted. She has attended counselling with Ms.

O’Sullivan almost every week since that time. [ 37 ] After the PGO was granted, the Child was placed in the care of her paternal grandparents, where she has resided since with the intention that the grandparents will adopt her. The Mother, by agreement, has continued to have supervised access to the Child once a week for two hours. She has missed very few access visits and is always prepared and diligent in attending every visit. No issues have arisen with respect to the Mother’s care of the Child in this environment.

One incident did occur where the Child dislocated her arm when the Mother was swinging her around at a park, but everyone agrees that this was purely an accident and not the Mother’s fault. The Mother’s reaction to this incident however was commented on by some of the witnesses in the fresh evidence application. [ 38 ] The Mother, in addition to counselling, has attended sessions with “Co-Dependents Anonymous” and taken a course on abuse. She has been employed full time. She understands now her co-dependant tendencies and why she chooses the wrong partners.

She is now in a relationship of some permanence and says she is able to set boundaries. [ 39 ] The Mother says if she is granted custody of the Child, she has a safety plan, would limit access to the Father and would continue to allow the paternal grandparents to see the Child, as she acknowledges that the Child has formed a very strong bond with her paternal grandparents, especially with her paternal grandmother. [ 40 ] Ms. O’Sullivan gave evidence about the Mother’s counselling over the last two years. She read the recommendations of Dr. During and Dr. Choate about what kind of counselling the Mother required.

Ms. O’Sullivan acknowledged that the Mother is very committed to the counselling and that the Mother has made therapeutic gains, but is hampered by the decision which must still be made with respect to this appeal. Ms. O’Sullivan has noticed a lot of progress by the Mother in moving towards the benchmarks for change set out by Dr. Choate, but said that the process needs to continue. She said the Mother is starting to understand the effects of the neglect and injuries experienced by the Child.

Visit Supervisors and Case Worker [ 41 ] Both supervisors gave evidence that the visits the Mother has with the Child go well. The Mother is always on time, prepared and engaged with the Child. The Child knows the Appellant is her mother. The Child is affectionate with her. With respect to the one incident when the Child dislocated her arm, the supervisor confirmed it was simply an accident, but the Mother’s reaction to it was significant. The Mother was shaking and crying and saying it was just an accident.

The Child tried to soothe her Mother and told her Mother she would be better when she got home (referring to the home of her grandparents). The supervisor was concerned about this role-reversal between the mother and the Child. [ 42 ] The case worker said that the Child transitioned from the foster parents to the grandparents in March and April 2013 because the Child needed stability and permanency. The Child’s grandparents have provided her with fulltime care since April 20, 2013. The Child is happy, active and intelligent.

The case worker thought that should the PGO be confirmed and the adoption take place, it is in the best interests of the Child to maintain contact with her Mother. The grandparents agree. Nevertheless, the major focus at this stage is permanency for the Child. Mr. MacDonald [ 43 ] Mr. MacDonald is an expert in childhood mental health. He said that the Child is doing well in her current environment. He confirmed that the Child suffered several severe early risks of neglect and abuse which can translate into a higher risk of not coping well as the Child gets older.

He said that these early risks were somewhat moderated by good early intervention. The biggest risk the Child faces now is another move. Any move, he said, will cause damage; accordingly, he questioned whether moving the Child will produce a benefit great enough to offset the harm. He said children are especially vulnerable between the ages of zero and five years of age and the stress that comes with a lack of consistency will interrupt their higher functioning. Ms. Wotherspoon [ 44 ] Ms. Wotherspoon has an expertise in mental health and early childhood development.

She interviewed the Mother, the grandparents, the foster parents and the Child’s teacher. She was retained by counsel for the Child to address future risk factors for the Child. She noted that the Child suffered severe neglect early on, including non-responsive parents, multiple infections, failure to gain weight and physical injuries. A caregiver must be able to regulate the stress of the Child. Different placements are also a serious risk factor and the risk factors are cumulative. The number of moves will predict more mental health problems. [ 45 ] The Child is now primarily attached to her grandmother.

She has affection for her Mother, but affection is not attachment. Additionally, the Child is too eager to please. She is often in a role reversal situation with her Mother. Ms. Wotherspoon felt the Mother lacked empathy for the Child’s situation. The Mother could identify with the Child’s physical pain, but did not seem capable of understanding her emotional pain from her early injuries. Ms. Wotherspoon is of the view that the Mother still has a lot of work to do in therapy with respect to the issue of empathy and has trouble taking responsibility for what happened.

She says the biggest risk now is another placement, as with each additional placement it is more difficult for the Child to form any attachments. Dr. Choate [ 46 ] Dr. Choate provided an update of his evidence provided at the trial of this matter. He reviewed all of the reports, including the reports from the Mother’s counselling with Ms. O’Sullivan. He indicated that the Mother has made progress in her personal therapy and now understands her tendency to get into bad relationships.

As he put it, the therapy has been very good for the Mother – it has “opened the envelope” on empathy and now she needs to learn to put into practice the things she has learned intellectually.

[ 47 ] Notwithstanding this, Dr. Choate says the most important thing at this stage is stability for the Child. The Child comes from a history of abuse and neglect. She is now in a stable placement and another move risks further harming the Child. This risk should not be taken unless there is a strong certainty of a better outcome than exists under the current arrangement. What is in place now is a stable, secure, safe placement where the caregiver is focussed on the Child and has empathy for the Child. The Child is already at risk given the number of adverse events in her early life. In Dr.

Choate’s opinion, any move that places the Child at further risk should not be undertaken. Position of the Parties [ 48 ] The Appellant points out that the test is not a contest between caregivers as to who is the better parent; rather, what the court must look at is whether the Mother is fit. Here, the Appellant argues that the she has shown improvement and the fact that the outcome of her therapy is uncertain is not a basis to order a PGO.

The Appellant also points out that the experts all agree that, if the Child is returned to the Mother, there are things that can be done to try and mitigate the risks associated with this further placement. In addition, even if the Child is not returned to the Mother, all experts agree the Mother should continue to have access to the Child. In

summary, the Appellant argues that the Mother has done everything possible to have the Child returned to her. She has taken extensive counselling and is willing to continue as long as needed. Her parenting is good enough. She will continue to involve the grandparents, as she knows the Child is attached to them [ 49 ] Counsel for the Director confirms that the Mother has undertaken therapy and acknowledges how positive that is for her. Nevertheless, the focus of the therapy has been on the Mother and dealing with her issues, with little focus on the Child.

The Mother still has a great deal to work through with respect to demonstrating empathy and taking responsibility for the past. While the “envelope has been opened” there is still much to do, and this is after two years of counselling. There is no indication of how much longer this process will take, and the CYFEA requires the court to consider whether the Child can be returned within a reasonable period of time. [ 50 ] Counsel for the Child argues that all experts, including Ms. O’Sullivan, acknowledge that a further move will cause damage to the Child.

While the extent of damage is capable of mitigation, some damage is sure to occur. It should be noted, argues counsel, that to this day, the Mother is unable to acknowledge that a further move carries significant risk for the Child. Decision on the Fresh Evidence [ 51 ] The Court has admitted the fresh evidence however, the fresh evidence, combined with the trial record and decision of the trial judge does not change this Court’s view that a PGO at the present time is appropriate.

The evidence is overwhelming that this Child has experienced severe early life trauma; moreover, she has been moved now on two occasions — once when apprehended and placed into foster care and again when moved after the trial to the care of the paternal grandparents. All of the experts agree that a third move would create additional trauma to the Child, from which she may never recover. Even now, the outcomes of her earlier traumas are unknown and will only start to develop as she gets older and starts school full-time. [ 52 ] The Mother has made tremendous progress in therapy to deal with her issues.

She has a long way yet to go and the outcomes are unknown, but she is committed and working diligently to overcome her detrimental personality traits. She is to be commended for that. The Court, however, must focus on the best interests of the Child and, in this case, whether the child can be returned to the care of her Mother within a reasonable period of time. Even at this stage, after all of the counselling received by the Mother, the court cannot say that the Child can be returned within a reasonable period of time. The appeal is dismissed and the PGO is confirmed.

Further Orders [ 53 ] All parties agree that the Mother should continue to have access to the Child and that this access is in the Child’s best interests. Counsel for the Director has asked that I seize myself with this matter to complete the adoption to the grandparents and deal with the ongoing access. I am prepared to do so. Heard on the 20 th day of November, 2014. Dated at the City of Calgary, Alberta this 17th day of December, 2014. C.L. Kenny J.C.Q.B.A. Appearances:

Kimberley A. Medora for the Appellant Kim M. Berlin for the Respondent, The Director of Child and Family Services Julie Hart for the child, AJL