2023 QCCQ 2586, 2023 QCCQ 2586

Protection de la jeunesse — 231016 2023 QCCQ 2586 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] « Youth Division »

No: 145-41-000762-226 DATE: March 22, 2023 ______________________________________________________________________ BY THE HONOURABLE CELESTINA ALMEIDA, J.C.Q. ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION Applicant and X Born on […], 2020 Child and A Mother ______________________________________________________________________ JUDGMENT ______________________________________________________________________ WARNING: The Youth Protection Act forbids the publishing or broadcasting of information allowing for a child or the child’s parents to be identified.

Any person who contravenes this provision commits an offence and is liable to a fine ( sections 9.2 , 9.3 and 135 Y.P.A. ). [ 1 ] The Director of Youth Protection (DYP) asks the Court to declare that the security and the development of the child is in danger according to

section 38 (b)1 o and 38 (b)2 o of the Youth Protection Act , namely because of physical neglect and a serious risk of neglect. The DYP asks that the child be entrusted to a foster family until his majority. CONTEXT [ 2 ] At the hearing, the mother argues against the placement measure.

She asks that the child be progressively reintegrated into her environment as of today so that her child be entrusted to her as of March 31, 2023. [ 3 ] At the end of the hearing, considering the abundant documentary and testimonial evidence, the child’s lawyer acting under a legal mandate is ambivalent about the measures sought by both the mother and the DYP. However, he believes that a short placement measure with a withdrawal of supervision could allow the mother to demonstrate that her recent mobilization is sincere and not ephemeral before considering a majority placement.

QUESTIONS IN DISPUTE [ 4 ] The issues raised by this dispute are as follows:

a) Should the child be progressively entrusted to his mother starting today?

b) Should the child be entrusted to his foster family until he reaches majority? ANALYSIS AND DECISION [ 5 ] Before addressing the issues in dispute, it is necessary to review the mothers’ and the family situation. • Family situation [ 6 ] On July 23, 2021, the DYP intervened following a report for the reasons set out in the application for protection. The mother’s

home is cluttered and messy. On the floor are soiled diapers, food, as well as several other objects to which the child can have access. The mother’s environment is unsafe. Furthermore, she is a single parent, without relatives in a French-speaking environment while she only speaks English, and who has a past of her own, which makes her vulnerable.

There are also concerns about her drug use since her last test dated July 20, came back positive for methamphetamine and amphetamines. [ 7 ] On September 27, 2021, the mother signed a voluntary agreement for a period of 6 months, placing the child in the care of a foster family. Then another agreement was signed on March 30, 2022. The mother has visits with the child, twice a week for a period of three hours and the contacts goes well. The mother picks up the child from daycare in the morning and brings him back afterwards, although she finds it early.

She has no sleep routine, sleeps poorly and tends to stay up late. During surprise visits, the home is messy, dirty and toys are everywhere. The apartment smells of marijuana, at least on one occasion, and there are even drugs on the table within the child’s reach. Sometimes the mother is not in the apartment with the child as expected and goes for a drive with friends or goes shopping. [ 8 ] When the DYP shows up at the mother’s home, the conditions are still pitiful, and although she is asked to clean up before the child’s visit, she rarely does so.

The mother explains her unwillingness to clean up due to the mental health issues plaguing her. She is mentally fragile and has substance abuse issues. She has used hard drugs on occasion since her teenage years in order to numb her emotional wounds. [ 9 ] She has financial difficulties and does not manage her money well. She lives from day to day and does not plan for anything. She has no real routine in her life. [ 10 ] During the months of March and April 2022, the mother is experiencing a lot of instability and is going through many difficulties.

She is facing a possible lawsuit from her former landlord for unpaid rent. She is hospitalized weekly for various health problems, not to mention her follow-up with the DYP. She feels a lot of pressure and seems to have little control over the situation. Her mental state is just as worrisome despite the fact that she is medicated. Moreover, her doctor referred her to a psychiatrist. [ 11 ] Due to the failure of complying with the DYP’s requests during the child’s visits with the mother, access is restricted to once a week and is being supervised.

The mother tends to leave the supervision and care of the child to the worker. [ 12 ] In April 2022, the mother began a follow-up for her drug addiction. She was not always present at the meetings and the follow- up did not continue for long. [ 13 ] Following her eviction from her home due to unpaid rent, she moved in with a friend in Town A who lives with her two children. This friend takes care of her and helps her to take more responsibility. During visits with the child, her friend is present, and the mother lets her take care of her son.

Although it is brought to her attention, the situation does not change. [ 14 ] In the summer of 2022, visits were no longer supervised, but the mother’s friend is present during access with her child. Upon his return from contacts with his mother back into the foster home, he has severe reactions. He may have diarrhea will sometimes vomit, and red marks that look like signs of stress become visible.

The mother is often around new people when in the presence of the child, although again she is asked not to, as it induces anxiety for the child, she continues. [ 15 ] When the mother picks up the child, the car smells of cigarette smoke. The child even had an asthma attack following a visit with the mother and was hospitalized. Although the mother denies smoking in the car in the presence of the child, the fact remains that she smokes in the car on the way to pick him up. She also states that she has no control over who else smokes in the car.

As a result, the DYP now provides transportation for the child to ensure his safety. [ 16 ] In July 2022, the mother started a job, which solved some financial problems. In November 2022, she changed jobs. Then she changed jobs again in January 2023. [ 17 ] Meanwhile, the child is adapting well to his foster family. The foster family did not speak English, which worried the mother. She fears that he will forget his language and not be able to interact with her son one day. Nevertheless, steps are being taken at the daycare to ensure that he has an English-speaking caregiver.

The foster parents are also making efforts to speak to him and read to him in English. The family notices that the child is more fragile on contact days with his mother.

a) Should the child be progressively entrusted to his mother starting today? [ 18 ] At the hearing, the Court already pronounced its decision orally about this question. In fact, the court does not believe at this point with the evidence submitted that an immediate return to the maternal environment is possible. There is too much at stake and too much going on in the mother’s life, with too many questions unanswered. [ 19 ] Moreover, at the hearing, the mother was again relocated and no longer lived with her friend in Town A, whereas this environment had provided her with stability for the past few months.

As a result, there are several elements of uncertainty and instability that persist in the mother’s life to consider such an avenue at this stage.

b) Should the child be entrusted to his foster family until he reaches majority? [ 20 ] Currently, the child is almost two and a half years old. He was only eleven months old when he was placed with his foster family in September 2021. Given the child’s age at the time of placement, the maximum placement delay under

section 91.1 of the Youth Protection Act ( YPA ) [1] is twelve months. This delay has now been reached and even exceeded. [ 21 ] In such matters, there is obviously no automatic mechanism that would require the Court to systematically and without analysis issue a majority placement order at the end of the time limit. The evidence must be assessed in light of the family history, keeping in mind the objective pursued by the legislator in incorporating the provisions of

section 91.1 into the YPA .

[ 22 ] The maximum placement delay is intended to reduce instability and the consequences for children of being repeatedly displaced.

Section 91.1 of the YPA establishes guidelines to prevent a child from waiting too long for a hypothetical return to their parents’ care and from being unable to find a stable environment. This stable living environment, where a child will be able to evolve in the long term, should primarily be that of the parents or other significant persons for the child, such as members of the extended family. Unfortunately, sometimes this is not possible.

In such cases, it is necessary to acknowledge the situation and present the child with an alternative solution. [ 23 ] The Court must proceed with the analysis keeping in mind the guiding principle of the Youth Protection Act , which is the best interest of the child. [ 24 ]

Section 91.1 of the YPA outlines the procedure that must be followed when the delay, twelve months in this case, has been reached. It states: […] If the security or development of the child is still in danger at the expiry of the periods specified in the first paragraph, the tribunal must make an order that ensures continuity of care, stable relationships and stable living conditions corresponding to the child’s needs and age on a permanent basis.

However, if the interest of the child demands it, the tribunal may disregard the periods specified in the first paragraph if it is expected that the child will be returned to his family environment in the short term or if there are serious reasons for doing so. The fact that services mentioned in an agreement or in an order of the tribunal have not been provided constitutes, among others, a serious reason. […] [ 25 ] What happens now in this particular case? [ 26 ] When the mother signs the voluntary agreements, she commits herself to being involved and providing an adequate environment for her son’s needs.

Unfortunately, it is striking how little progress the mother has made and how unstable her situation remains. [ 27 ] The worker’s report summarizes the mother’s situation well in this regard. « The mother had a year to get herself in a more stable situation. Unfortunately, she took too much time to take action and has not been able to achieve most of the objectives during the two voluntary measures. “ [2] [ 28 ] By signing these two different measures, the mother is well aware of the problem and the issues at stake.

The mother knows full well that there is a long way to go and that her involvement in the follow-ups must be rigorous and consistent. There is clearly an urgent need to act, given the child’s age and the maximum delay of placement, in order to get back on track. [ 29 ] She began a follow-up in April 2022 but did not attend her meetings and eventually withdrew. In short, she had little involvement. Although she claims to have had various follow-ups recently, she is not able to demonstrate the actual steps she has taken in recent months and their results.

In fact, she does not produce any report of these follow-ups attesting to the number of meetings she has been to, the objectives she has worked on, and the findings or opinion of the professionals regarding her condition. She only submits evidence of a request for a substance abuse follow-up and nothing more.

Moreover, there is no professional who testifies to inform the court about her accomplishments. [ 30 ] Even if the mother shows fewer symptoms of anxiety and depression, she can still be emotionally overwhelmed when she faces a stressful situation or when the worker tries to discuss what she needs to improve during the visits with her son. It is hard for her to recognize her difficulties and tends to be defensive when she is told that certain areas need improvement.

However, when she loses her temper because of the stress related to the DYP’s involvement, she always apologizes. [ 31 ] During contact with the child, several observations are made about the mother. She prefers to go for car rides with the child and friends or go shopping rather than be alone with her child and enjoy some quality time that lasts only a brief moment. She tells the worker that she is bored with doing nothing at home, which shows that she is putting her needs before those of the child. [ 32 ] During contacts, the mother lets other people take care of the child rather than doing it herself.

In the morning, the mother is frequently tired when the child wakes up early, as she’s not used to be doing so. As a matter of fact, she missed at least two visits with the child because she did not wake up. She needs to be constantly reminded to bring snacks because she does not plan for it, or she delegates it to the grandparents when they are present during the visits. [ 33 ] She has had unsupervised contact with the child on more than one occasion, but each time there are concerns about the child’s safety considering the condition of her home and the items strewn about.

The mother leaves drugs within reach of the child. From then on, supervision is reinstated leaving little room to work on a return to the maternal environment. [ 34 ] The mother has the will to do the right thing for her child but lacks the capacity due to her traumatic past and her mental health issues. [ 35 ] She does not take the necessary measures to ensure safe transportation for her son, who suffers from asthma. She drives him in a car that reeks of cigarette smoke, which is very harmful to him because of his health condition.

He was even hospitalized once for this reason. [ 36 ] As for the mother’s drug use, there is no indication that she is currently using.

[ 37 ] During the DYP’s interventions, the mother is often reminded of several aspects about her behaviour that she needs to work on in particular, such as her lack of involvement with the child during contacts, leaving her responsibilities to other people who are present, not putting the child in contact with new people, spending quality time with her son, cleaning her home, not smoking in the car and many other things. Yet the mother does not listen to the advice and does not implement the suggested recommendations. [ 38 ] The child has intense reactions to change and has a strong need for reassurance.

He reacts very strongly when his routine is disrupted. A clear and predictable routine is crucial to the child’s ability to function properly. As mentioned in the last report, it is difficult for the mother to decode her child’s needs and to intervene appropriately on her own initiative without being told what to do. [3] [ 39 ] As mentioned earlier, the child begins to react before and after contact with the mother in both the foster home and the daycare, which is alarming and indicative. [ 40 ] The child is very young and vulnerable.

He is completely dependent on the adult to provide for his needs and protect him. Although the Tribunal initially considered implementing a shorter measure to ensure the mother’s mobilization and stability, after careful consideration and in light of the evidence and the law, this was not found to be in the best interest of the child, who again will have to wait for the mother to make demonstrable and sustainable progress over time. This is hardly realistic given the mother’s actions since the child was placed in foster care in September 2021.

She has done very little to take control of her situation and has only recently begun to attempt doing so, although there is little evidence to support this. [ 41 ] The mother begins to show signs of stability only since August 2022. She made some changes over the past few months while residing with her friend in Town A, who helps and supports her. However, in January 2023, there is a turnaround, and the mother decides to leave this place, once again proving her instability. It seems that her friend was toxic, but she never mentions that to the DYP.

She moved to Town B and she is living with another friend that the DYP is unfamiliar with. [ 42 ] Despite recently finding stability again, the mother’s capacity to be a parent does not seem to evolve further. The mother’s progress is inconsistent, and she lacks the ability to recognize the child’s vulnerabilities. [ 43 ] The psychologist’s report speaks volumes about the mother’s portrait, the relevant excerpts of which are reproduced below: [4] For as long as she can remember, but more so since her adolescence, Ms. A’s life has been disorganized .

As a teenager, she exhibited risky behaviours and had risky relationships. Drug use has taken an important and unfavourable place. The pleasure principle often guided her actions, and her impulsivity was often detrimental to her. […] In general, Ms. A’s attitude indicates that she is concerned about her son’s custody situation. She shares with us her desire to take control of her situation and to make changes. However, in reality, concrete actions, and especially regular and sustained actions are slow .

For example, we only have to think of her living environment which is still very cluttered and not always clean and safe, or the absence of a routine in her life. Ms. A has always collaborated with the services received since her pregnancy. A lot of energy and different services have been deployed to help her over a significant period of time without concrete results . The DYP’s influence and legal efforts do not seem to have an impact either. We are not in a situation of unwillingness, but rather of inability in the parent, due to the magnitude of the daily stressors and the developmental history of Ms. A.

Mental health and substance abuse issues affect Ms. A’s parenting abilities . […] Ms. A seems to have limited knowledge of parenting skills, but she is not cognitively deprived. However, her personal issues prevent her from actualizing her role as a parent and generalizing the teachings provided, and from continuing to learn. At times she makes choices that are more focused on her own needs that correspond to the pleasure principle, rather than to those of her son. Ms. A sees her son twice a week for three hours without supervision. lt is impossible for the caseworker to increase the frequency and duration.

Given the level of disorganization in all spheres of this person’s life and her depressed and fragmented emotional state, marked by impulsiveness, we are concerned about her ability to detect her son’s needs and to respond adequately and in a timely manner. Supervised visits seem to be warranted at this time. [Our Underlines] [ 44 ] During all this time, while the mother is unstable and unengaged, the child has integrated well into the foster environment. He attends the daycare centre where the foster-mother works, which facilitates his adaptation.

He has a great bond with this family, and he is happy. [ 45 ] The mother does not appear to be an attachment figure for the child. When he is hurt or unwell, the mother’s presence does not calm him down. When a child is not able to settle down with one parental figure attention after a stressful event, it is a manifestation of an insecure type of attachment. Furthermore, the child does not tend to reach for help from his mother but does so towards the contact supervisor. [ 46 ] The Court has no doubt about the mother’s love for her son.

Unfortunately, her own issues, limits and challenges mean that she does not demonstrate the ability to make, in the foreseeable future, the changes that are necessary in order to have the child entrusted back to her. While the mother asks for more time to prove herself, the fact remains that it is the child who bears the brunt of this uncertainty and the lingering instability. [ 47 ] Mobilization and engaging in the follow-up by the mother are a very slow process. In the meantime, the child’s needs continue to be more and more complex, which makes it difficult for the mother to adapt.

[ 48 ] Moreover, there are no serious reasons why the expected services were not provided, quite the contrary. The mother receives services but does not engage or participate much in them, does not show up or mobilize herself, except in anticipation of appearing in court in an attempt to try to look her best. The intensity of services is increased in recent months to help the mother. The worker meets with her more often, although the child is not in the mother’s care and she has time to work on herself, nothing is improving. Still, the worker helps her find the services she needs.

She puts her in touch with a doctor, a psychiatrist, a counsellor for psychosocial follow-up and someone to help her with her budget, but she does nothing. In spite of the amount of time devoted to the mother, nothing changes or evolves. [ 49 ] As for the mother, she accuses the DYP and the foster family of being responsible for her failures. She justifies her actions and efforts, or lack thereof, on the basis of external motives, and this, regarding all the issues raised by the DYP.

These include the smoking of cigarettes in the car, the lack of services available in Town A or the lack of services in English, her son’s potty training, the number of new people who come into contact with him, omitting contact with him, the fact that she is not allowed to take care of her son, and so on. She believes that she can grow and learn as a mother at the same time as she tries to raise her child, which is concerning because she is supposed to be a responsible adult in this situation.

A child is not a learning object, and raising one requires the utmost care and attention. [ 50 ] According to her testimony, the mother does not acknowledge any responsibility for the situation that prevails, in short, nothing is her fault. It is clear that time will not change anything. [ 51 ] Therefore, considering all the evidence, there is no reason to override the maximum placement delay specified in

section 91.1 YPA . [ 52 ] The Court is aware of the pain that the present situation is causing the mother. The cornerstone of the analysis, however, remains the interests of the child, not the parent. [ 53 ] The child needs a stable, supportive, and secure environment in order to properly develop. He needs a certain routine, because he reacts strongly to changes either by vomiting or by refusing to eat. It is essential that the child’s usual patterns be respected, something that the mother struggles to do or to apply it properly. [ 54 ] It is in the child’s best interest to be in long-term foster care.

The foster parents provide loving, caring, competent and dedicated care on a daily basis. They are actively committed to the long-term care of the child, and clearly desire to keep doing so. They collaborate with the professionals who work with the child and are involved in the various follow-ups.

They do not give up in the face of adversity and are sensitive and conscious of the child’s needs, notably his English-speaking culture. [ 55 ] An order for placement until the age of majority within his foster family corresponds to the best interest of the child and is consistent with the principles and objectives of the Youth Protection Act . There is no doubt about that in the Court’s mind. [ 56 ] The evidence demonstrates that the security and the development of the child are in danger according to sections 38 (b)1 o and 38 (b)2 o of the Youth Protection Act .

Considering the evidence submitted, the application is well-founded. The Court will order the following measures which appear to be in the child’s best interest.

FOR THESE REASONS, THE COURT: [ 57 ] GRANTS the application for protection; [ 58 ] DECLARES that the security and the development of X are in danger according to sections 38 (b)1 o and 38 (b)2 o of the Youth Protection Act ; [ 59 ] ORDERS that the child be entrusted to the foster family of B until October 13, 2038 (age of his majority); [ 60 ] ORDERS that contacts between the child and his mother be determined by an agreement between the parties and AUTHORIZES the DYP to supervise them; [ 61 ] ORDERS that the mother actively participate in the application of the measures ordered; [ 62 ] ORDERS that a person working for an establishment provide aid, counsel and assistance to the child and his family until October 13, 2038; [ 63 ] ENTRUSTS the situation of the child to the DYP of the Centre intégré de santé et de services sociaux A for the carrying out of the present judgment.

________________________________ CELESTINA ALMEIDA, J.C.Q. Me Mylène Pelletier-Rivet for the applicant Me Alexis Deschênes for the child Me Isabelle Gagnon for the mother Date of hearing: January 25, 2023 (Heard in New Carlisle)