IN THE MATTER of a hearing under THE CHILD v. FAMILY SERVICES ACT, 2012 SKPC 136

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 136 Date: September 5, 2012 Location: Nipawin _____________________________________________________________________________ Between: IN THE MATTER of a hearing under THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF D.P., born […], 2005 and A.P., born […], 2008 Appearing: Ryan Lavoie For the Ministry of Social Services Ron Saretzky For the mother Unrepresented For the father The mother and children are identified by initials in order to protect their identities. JUDGMENT B. MORGAN , J INTRODUCTION:

[ 1 ] The Minister of Social Services (the Minister) applies for an order pursuant to s. 37(2) of The Child and Family Services Act , S.S. 1989-90, c. C-7.2 (the Act ) committing both D.P., who is now almost seven, and her sister A.P., who is now almost four and a half, to the Minister by way of a permanent order. [ 2 ] The parents of both children are A.N., a member of the Red Earth Band, and R.P., a member of the Moosomin Band.

Although served, the father has not participated in these proceedings, and both children have lived off reserve for their entire lives. [ 3 ] The hearing was held July 19, 2012, in Nipawin, Saskatchewan, and proceeded by way of filing of the appropriate registrations of live birth, and an agreed statement of facts. In addition, Ms. Kelley Baron, a child protection worker from Nipawin who had familiarity with this file, gave brief evidence updating the situation respecting the children. ISSUES: [ 4 ] The issues raised by this application are:

(1) Are the children, or either of them, in need of protection?

(2) If so, should there be a committal of one or both girls to the Minister on a permanent basis, as sought by the Ministry, or should the child or children be committed to the Minister subject to a long-term order, until such time as each attains the age of 18 years? LEGISLATIVE FRAMEWORK: [ 5 ] The Minister seeks an order pursuant to s. 11 of the Act declaring that D.P. and A.P. are children in need of protection. Subsections (

a) and (

b) of s. 11 are the relevant subsections in this matter. Those subsections read as follows: 11. A child is in need of protection where: (

a) as a result of action or omission by the child’s parent: (

i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer a serious impairment of mental or emotional functioning; (iii) the child has been or is likely to be exposed to harmful interaction for a sexual purpose, including involvement in prostitution and including conduct that may amount to an offence within the meaning of the Criminal Code ; (iv) medical, surgical or other recognized remedial care or treatment that is considered essential by a duly qualified medical practitioner has not been or is not likely to be provided to the child; (

v) the child’s development is likely to be seriously impaired by failure to remedy a mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (

b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur. [ 6 ] In the event that I find the children to be in need of protection, I must then make the appropriate order under s. 37 of the Act . The relevant subsections of s. 37 read as follows: 37(1) Subject to subsection (2), if the court determines that a child is in need of protection, the court shall make an order that the child:

(

a) remain with, be returned to or be placed in the custody of his or her parent; (

b) be placed in the custody of a person having a sufficient interest in the child; or (

c) remain in or be placed in the custody of the minister for a temporary period not exceeding six months.

(2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanently committing the child to the minister.

(3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (

a) a child is in need of protection; and (

b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child were permanently committed to the minister; order that the child be placed in the custody of the minister until the child attains the age of 18 years. [ 7 ] In making an order under s. 37 , I am directed by subsection 37(4) to consider the best interests of the children. In addition, I may consider the recommendations of “the officer” who is the family service worker in the case before me. [ 8 ]

Section 4 of the Act sets out the factors I must consider when determining the best interests of the children.

Section 4 reads as follows: 4. Where a person or court is required by any provision of this Act other than subsection 49(2) to determine the best interests of a child, the person or court shall take into account: (

a) the quality of the relationships that the child has with any person who may have a close connection with the child; (

b) the child’s physical, mental, and emotional level of development; (

c) the child’s emotional, cultural, physical, psychological and spiritual needs; (

d) the home environment proposed to be provided for the child; (

e) the plans for the care of the child of the person to whom it is proposed that the custody of the child be entrusted; (

f) where practicable, the child’s wishes, having regard to the age and level of the child’s development; (

g) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; and (

h) the effect on the child of a delay in making a decision. THE EVIDENCE: [ 9 ] Both the Minister and the mother agree that each child is in need of protection, as defined by s. 11 (

b) of the Act . Each of the mother and the father have limited parenting skills, and neither has consistent family support. Each of the mother and father are cognitively delayed, and neither has been looking after either child. Although D.P. has some connection to her parents, A.P. was too young at the time both children were apprehended, and does not remember either of her parents. [ 10 ] The evidence presented in the agreed statement of facts overwhelmingly supports the position of each of the participating parties to this hearing that each child is in need of protection.

As mentioned at the outset, the major issue is whether or not the committal to the Minister should be on a permanent basis, to allow for adoption, or whether it should be on a long-term basis, as the mother suggests. [ 11 ] The agreed statement of facts provides clear and compelling evidence of the following:

(1) The mother has been caught in a revolving door that alternates between excessive alcohol use, which leads to aggressive behaviour, which leads to incarceration, to be followed by further bouts of drinking upon release from incarceration. She has a history of transiency, a history of unstable residences when she does obtain one, and has been in very irregular contact with the Ministry. Further, she has limited parenting skills, a fact which she herself recognizes, but has to date done little to address that.

(2) The father, although he would like to care for his children, has acknowledged during meetings with Ministry officials that he does not feel he can. He has done a better job dealing with his alcohol issues, and is trying to make improvements in his situation. He supports the Ministry’s plan for adoption as he sees that as being the best resolution for the girls.

(3) The Ministry has had ongoing involvement with both the mother and father since February of 2007. That initial contact raised concerns about the parents’ drinking, and the state of their house. In October of 2008, there was a concern respecting potential physical abuse towards A.P., then eight months old.

Although neither of these prior incidents provide any type of evidence of abuse by either parent, it has led to the continuing relationship between the Ministry and the parents in which a constant theme and concern has been centred around the parents’ alcohol use, violence they exhibit towards each other, and neglect of the children. [ 12 ] The history of the two sisters is that they have essentially been raised by their maternal grandparents.

However, other children in the care of the maternal grandmother have been taken into care, and there is an ongoing concern respecting the maternal grandparents’ suitability to parent the children. Most of the parenting done by the maternal grandparents was done to assist the mother A.P., as the father R.P. was often not involved with the children’s care. In the recent past, there have been a number of temporary orders respecting both sisters.

The children were seized from the maternal grandparents on June 10, 2010, and since then, a three month order was issued July 14, 2010, a further six month order on November 17, 2010, and a further three month order on August 10, 2011. Each of these orders allowed the Ministry to attempt to work with the mother and the father, although primarily the mother, and the situation has not improved. [ 13 ] Since apprehension, both children have been in different homes, with different caregivers.

They are now with a couple, and have been since March of 2011, that wish to adopt the children, and are in agreement with the concept of an open adoption to allow continuing contact with their biological parents, if appropriate.

Although open adoption is of course never guaranteed, the point is that the children have been, since March of 2011, in a stable and nurturing environment. [ 14 ] This stability and nurturing is particularly important in that each child has been found to have some intellectual disability; D.P. has mild intellectual disability, and A.P., the younger one, has had her development mildly delayed.

It is essential to the well-being of each child that these regressive steps in their development be corrected as promptly as possible, to allow them to develop into happy and healthy children and adults. [ 15 ] Both children have demonstrated some symptoms of attachment disorders, although that situation has been ameliorated since they have been in the care of their present caregivers. [ 16 ] The evidence of Ms.

Baron, provided on the trial date, provides confirmation that the present caregivers have expressed recent interest in adopting the children, and are agreeable with an open adoption plan if that is in the best interests of the children. [ 17 ] As indicated above, the father has recognized that he will not be in a position to ever be able to provide the children with a safe and stable home. Although it is beyond doubt that he loves the children, he has quite properly put their interests ahead of his own, and is in agreement with the Ministry’s position. [ 18 ] The mother has two arguments.

She asks first for a long-term order, thereby leaving it open for her and perhaps the father to perhaps have the children returned to their care in the future. She also argues that it would be wrong for the children to be taken out of their original Aboriginal environment and placed in a non-Aboriginal home. [ 19 ] The answer to the first question is that the Court is bound to follow the legislative framework set out earlier in deciding what is best for the children (although I refer to the “children”, the test is applied to each child individually).

In this case, the factors apply to each of them, and the conclusion is the same for each of them. The essential problem with the mother’s first argument is that she is not “able and willing to provide for the child’s needs...”, and there is no evidence to suggest that she may be in the future. As counsel for the Ministry put it, and as more than one case has held, one more chance for the mother is one less chance for the children. All of the applicable factors set out in

section 4 of the Act favour making the order sought by the Ministry at this time.

[ 20 ] As to the second argument, there is no evidence respecting the ethnicity of this prospective adoptive family, and of course no way of knowing the ethnicity of some other as yet unknown prospective adoptive family. That issue aside, there has been no other suitable candidate put forward who may satisfy the mother in respect of this consideration, and who would satisfy the considerations set out in

section 4 of the Act . The fact remains that I must consider all of the factors in

section 4 in determining the best interests of the children, and on that basis, and on the basis of the evidence before me, I cannot accede to the mother’s argument in these circumstances. [ 21 ] Applying the legislative framework set out earlier, it is apparent to me that the only appropriate order in this case is to order, pursuant to s. 37(2) , that each child be permanently committed to the Minister. B. Morgan, J