r v. A, 2015 QCCQ 15071

Protection de la jeunesse — 158139 2015 QCCQ 15071 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 760-41-003855-106 760-41-003856-104 760-41-003857-102 DATE: June 11, 2015 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X, born [...], 2004 Y, born [...], 2006 Z, born [...], 2007 Children ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION OF LE CENTRE JEUNESSE A Petitioner v.

A B Parents ______________________________________________________________________ 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 11.2, 11.2.1 and 135 Y.P.A.). [ 1 ] The Director of Youth Protection presents motions for the extension of protective measures in force in regards to the siblings X, Y and Z.

The Court proceeds to a joint hearing on the motions, by consent of the parties. [ 2 ] The children are the subject of protective measures in reason of parental neglect in the maternal environment, sexual abuse by the father (X and

Y) and risk of sexual abuse (Z).

In reason of this situation, as of 2010, the Court entrusts their care to their maternal grandfather and his spouse, Ms C. [ 3 ] On April 2, 2013, the Court revises the placement of Z after retaining a situation of physical abuse in her grandparent’s environment, and entrusts her to foster care. [ 4 ] The most recent judgment dates from September 4, 2013, and extends the protective measures for one year for X and Y, while returning Z to the care of her maternal grandfather. [ 5 ] Positions [ 6 ] The Director of Youth Protection contends that the parent’s respective situations continue to exclude the children being in their care.

Concurrently, the Director alleges that the children’s present environment demonstrates significant difficulties responding to their overall needs. [ 7 ] As for Z, the Director requests her placement in foster care until her majority. Z’s attorney, operating under a legal mandate, agrees with this evaluation and concurrently requests that the Court designate her specific entrustment in the foster family where she currently resides. [ 8 ] As for X and Y, the Director’s submissions evolve throughout the hearing.

While maintaining that the grandparents demonstrate continuing difficulties in responding to the children’s needs and cooperating with the intervention, initially a short period of measures is requested, in order to verify if the milieu is ultimately able to integrate durable changes. The grandparents withdrawing their collaboration during the hearing, the Director revises its recommendations and requests the removal of the children to foster care within a 6 month protective order.

[ 9 ] The mother agrees with a long term orientation for Z, but submits that the order terminate with the end of her primary schooling, namely in June 2018. Concerning X and Y, she agrees with their removal from their grandfather’s care and requests that they be entrusted to their maternal grandmother, with whom she resides. Concurrently, she contests the pursuit of the supervision of her contacts or, if so maintained, that the grandmother ensure said supervision. [ 10 ] The father continues to be incarcerated and is little involved with the intervention.

The caseworker testifies that in a recent phone conversation with him, he affirms being in agreement with the conclusions and the reports. In the circumstances, the Court proceeds in his absence. [ 11 ] X and Y leave the appreciation of the evidence to the Court. As to their contacts with their mother, X stipulates not seeing the need for supervision, while Y agrees to such by way of her maternal grandmother. [ 12 ] Context [ 13 ] Following Z’s return in her grandfather’s care, her problematic behaviours resurge and amplify. She exhibits such behaviours as throwing things, physical and verbal violence, yelling.

Physical interventions are sometimes necessary to respond to her outbursts. [ 14 ] The grandparents express being overwhelmed and seek her removal. [ 15 ] As of July 2014, the parties agree that Z progressively re-integrate foster care and, to this day, she remains in the same family with whom she creates a significant attachment.

Z projects herself in this environment until her majority and the family is ready to receive her on a long-term basis. [ 16 ] Z is now developing positively and her problematic behaviours have largely disappeared although she continues to exhibit certain anxiety behaviours in relation to the contacts with her mother. [ 17 ] On a more global basis, numerous issues remain problematic in regards to the maternal grandfather’s environment ability to respond to the children’s needs.

To this effect, the evidence establishes the following: ➢ The grandfather and his spouse lack sensitivity in their responses to the children; ➢ The children benefit from little affective presence; ➢ Ms C, the primary caregiver, can be harsh and demanding towards the children; ➢ The children don’t benefit from social or sports activities; ➢ Discipline is rigid and inconsistent.

Consequences are often illogical and not age-appropriate; ➢ Children are obligated to do their homework for hours on end; ➢ There is no supervision or verification of the children’s homework, nor signing of the agendas, although the children are sometimes obligated to do long hours of homework; [ 18 ] The environment is rigid and, until only recently, impermeable to change, and this, despite the accompaniment of the Director and repeated counsel. [ 19 ] An educator works with the maternal grandfather’s environment since summer 2013 in view of the children receiving a more global response to their needs.

Despite an intensity of services, little change is observable. [ 20 ] Ms C’s health is declining, creating impairments impeding her functioning (tremors, diabetes, asthma). She struggles to accomplish certain tasks and requires the support of her husband and sometimes the children. [ 21 ] X and Y’s school results are in decline and, as of November, they are failing major subjects.

Although the grandparents pressure the children to succeed, there is little in the way of effective accompaniment or support. [ 22 ] The situation seeing little improvement, in January 2015, the Director gives specific and unambiguous objectives to the maternal grandfather and his spouse, while intensifying the services in order to verify their capacity for change.

The grandparents are made aware that the next six months will serve to clarify their abilities to respond to the children’s needs on a long term basis. [ 23 ] This situation is little changed at the hearing dates, notwithstanding the Director’s declared orientation. Although they clearly understand what is asked of them, they continue to offer only minimal compliance. [ 24 ] Ms C’s testimony demonstrates little acknowledgement of any difficulties. She states that the children are well taken care of and have response to their needs.

She confirms being available to assume the custody of X and Y on a long term basis. [ 25 ] Furthermore, the grandparents declare to withdrawing their cooperation with the services in place and this, in view of their perceptions of the evidence brought forth by the Director to the Court. [ 26 ] At his own initiative, X testifies before the Court. He states wanting to live with his mother because the rules are too rigid at his grandfather’s. He knows there won’t be as many rules because they’re nicer and he won’t be pushed all around. He cites that he has little friends because he can’t visit anyone.

He thinks he would be happier with his mother, but would like to visit his grandparents. [ 27 ] The mother sees the children under the supervision of the Director on a monthly basis. She respects the visitation schedule, but maintains difficulty integrating the counsel and tools designed to improve her parenting skills, a situation which persists since the

Director’s intervention. She still has problems putting in place a structure or discipline. The caseworker has to intervene on a regular basis to structure the contacts and help the mother respond to the children in an appropriate manner. [ 28 ] The supervision permits the organizing and structuring of the activities, which is reassuring for the children. [ 29 ] As to the intervention, the mother rarely presents herself to meeting with the caseworker, citing not understanding the reasons for such. [ 30 ] On a personal level, the mother’s situation is improved.

She completes a program on parental skills and receives counselling in order to help her deal with issues from her past. She demonstrates positive goals, namely of furthering her education in order to find work and eventually live independently. [ 31 ] The father remains incarcerated and faces new charges of sexual crimes, including incidents regarding Z.

He is little involved in the intervention and rarely communicates with the caseworker. [ 32 ] After being absent from the children’s lives for about 18 months, the maternal grandmother resumes contacts with the children in March 2015, by integrating the mother’s contacts. These contacts are positive. During these visits, the grandmother takes on a leading role with the children. [ 33 ] The maternal grandmother testifies before the Court.

She is ready to receive the X and Y in her care, although she is unable to offer a concrete plan as to the response to their needs and the protective measures. [ 34 ] She doesn’t understand the reasons constituting the situation of endangerment, nor of the supervision of her daughter’s contacts with the children. She states that her daughter has never really discussed this issue with her.

She supports her daughter’s request for unsupervised access, which will facilitate that children be in her care, considering her daughter resides under the same roof. [ 35 ] Analysis and decision [ 36 ] That the situation of the children remains in danger is not a live issue, all parties stipulating that such is the case and the evidence justifying this conclusion. [ 37 ] The contestation lies as to the protective measures.

The parties submit different evaluations of the children’s needs as to their living environment, as well as the contacts with their mother. [ 38 ] The children are removed from their parental milieus more than five years ago. [ 39 ] Within the last judgment, the Court establishes that the maximum delays of placement are long expired, justifying the establishment of a permanency plan.

Notwithstanding, after considering the ongoing difficulties in the grandparent’s milieu, the Court suspends this process, stipulating the following: [16] However, the interests of the children dictate that the Court disregard this obligation for the time being, and provide an additional period of provisional placement in order to verify the long-term viability of the grandparent's environment.

The Court therefore takes act that the Director of Youth Protection intends to complete its elaboration of a permanency plan within the framework of the measures. [ 40 ] As to Z , she is residing in her foster family for more than a year and this, as the paternal grandparents cannot deal with her more rambunctious behaviours. She is functioning positively in this environment and is no longer exhibiting the difficulties previously seen.

She foresees herself staying with this family until her majority. [ 41 ] Z has had to deal with significant changes in her life, consequent to the inability of her various environments to respond to her needs for constancy and serenity. The fact that her previous oppositional behaviours are no longer present in foster care, testifies to this fact. [ 42 ] Z still struggles with anxiety and requires assurance of her future. [ 43 ] The Court concludes to the expiration of the delays of placement provided under

article 91.1 Y.P.A. , that the security or the development of Z are still in danger and that a return with the parents is not possible. The Court must therefore render an order which aims at ensuring the continuity of her care, stable relationships and stable living conditions corresponding to her needs and age and this, on a permanent basis. [ 44 ] This evaluation establishes that it is in Z’s best interests that the Court maintains the status quo as to her placement until her majority and this, in order to allow her to stabilize herself.

The mother’s position for a three year order is not reflective of the Z’s present situation, or of her own, which precludes a return to her mother’s care.

Notwithstanding, the Court underlines that should there be significant changes, the parties retain the right to seek the revision of the judgment. [ 45 ] As to X and Y , their situations summon a more detailed evaluation. [ 46 ] The Court must firstly evaluate the children’s present environment in regards to privileging their stability. [ 47 ] Despite an intensity of services offered to the grandparents since the children are in their care, the situation remains largely static.

Although the children’s basic needs are adequately seen to, there is a consistent failure to recognize that they have other needs on an emotional, social and academic level. [ 48 ] This failure to perceive and identify the needs of the children, other than basic food and shelter underscore a lack of sensitivity which is negatively affecting the children.

[ 49 ] In fact, it is only recently that certain changes and this, seemingly in a conformist manner to respond to the Director considering removal. But this is not sufficient, as to make the changes necessary to better respond to the children’s needs, the Court must conclude that the grandparent’s grasp the underlying fact that the children require more than a roof and food. Such is not the case, as appears from Ms C’s testimony.

This, in conjunction with the declared refusal to continue their implication with the services, precludes the rehabilitation of their parental capacities. [ 50 ] It is no longer possible to retain that this environment can see as to accompanying the children in the future. It is clear that the grandparents are challenged by the growing needs of the children and that changes cannot be reasonably envisioned in view of their superficial cooperation with the protective measures in place for numerous years.

Although certain positive changes are recently observed, this is not sufficient to overcome the chronicity of the situation and convince the Court that integrated change is a possibility. [ 51 ] X’s testimony is particularly telling as to the repercussions stemming from the lack of overall support and affection at his grandfather’s. It is to the point that he able to verbalize wanting to live with his mother and grandmother and, as a last resort, in foster care.

This cry of distress is a reflection of his needs and cannot go without response, as has been the case for the last years. [ 52 ] For all these reasons, the Court therefore comes to the conclusion that the grandparents no longer offer a viable environment to ensure the security and the development of the children on a long term basis. [ 53 ] This being the case, the Court considers the alternate environments suggested, namely the maternal grandmother or foster care. [ 54 ] After evaluating the evidence, the Court does not retain that maternal grandmother is being able to respond to the children’s needs and this, for the following reasons. [ 55 ] The mother resides with the maternal grandmother.

As is amply documented in the Court file, she presents significant limitations which affect her parental capacities and require the structuring of her contacts with her children. Such is still the case. [ 56 ] Although the maternal grandmother is well-intentioned, numerous factors do not favour her environment for the children at the present time. [ 57 ] In the past, the maternal grandmother is withdrawn as the supervisor of the children’s access with the mother, in view of the conflicts within the household.

Although the mother mentions that such is no longer the case, remains that it is a factor of precariousness still pertinent to the evaluation of the children’s best interests. [ 58 ] The maternal grandmother’s testimony demonstrates that her allegiances are primarily to augmenting her daughter’s role with her children. She has consistently rejected the reasons justifying supervision of the access rights between her daughter and the children, and such is still the case.

She considers that the Director of Youth Protection is the primary reason her daughter cannot see her children freely. [ 59 ] Furthermore, to entrust the children to their maternal grandmother would constitute a fundamental shift in the orientation, whereby the mother would be a constant presence with her children, residing in the same environment. Such is not consistent with the evidence whereby the mother still has substantial limitations as to her parental capacities.

Furthermore, the grandmother not integrating the children’s need for protection, it is questionable whether she would be able to discern her daughter’s needs from her grandchildren’s. [ 60 ] Consequently, the Court considers that X and Y’s best interests dictate that the children be entrusted to a neutral and structuring environment able to see as to their needs. [ 61 ] As to the remaining issue of the children’s access to their mother, the Court must determine whether the present structure is in the children’s best interests or if, as suggests the mother, supervision is no longer a requirement. [ 62 ] The mother shows willingness to work with the Director and improve her parental skills, and the sincerity of her commitment translates through her testimony.

Furthermore, the evidence demonstrates that her persistent efforts result in notable strides as to her personal situation and parental capacities. [ 63 ] The observations during her contacts demonstrate that she still struggles with basic tenets of parenting to the point that supervision remains pertinent. [ 64 ] Although this is the case, the Court also considers that the children need to forge a more substantial bond with their mother and that concurrently; the mother is now available to progress in this vein.

The access rights need to be geared towards taking full advantage of the renewed beneficial nature of theses contacts and as such, the Court determines that monthly visits are no longer sufficient. [ 65 ] Although the determination of the contacts by mutual agreement is still advantageous as it permits to progress the contacts, the Court orders a minimum frequency of twice a month for three hours, to include the possibility of outside activities. [ 66 ] It is also in the children’s best interests that they maintain contacts with their grandparents, conditional to them not being put before negative comments concerning their parents and/or the intervention. [ 67 ] FOR ALL THESE REASONS, THE COURT: [ 68 ] GRANTS the motions; [ 69 ] DECLARES that the security and development of the children are still in danger; [ 70 ] REVISES and EXTENDS the Court order rendered on September 4, 2013; [ 71 ] AS TO Z:

[ 72 ] ENTRUSTS the child to a foster family chosen by the Director of Youth Protection A, namely the foster family of D and E; [ 73 ] ORDERS that the parents report periodically to the Director of Youth Protection on the measures they apply; [ 74 ] ORDERS that the parents take an active part to the measures ordered; [ 75 ] ORDERS that the contacts between the child and her mother be upon agreement between the parties and in the presence of a third party designated by the Director of Youth Protection; [ 76 ] TAKES ACT that the parties agree that Z may benefit from individualised access with her mother on a regular basis as well as visits in conjunction with her siblings; [ 77 ] FORBIDS any contact between the child and her father; [ 78 ] ORDERS that the contacts between the child and her grand-parents as well as Mrs.

C be upon agreement between the parties and conditional that they agree to not discuss any legal proceedings with the child nor the involvement of protective services; [ 79 ] ORDERS that a person working for an institution or body provides aid, counselling and assistance to the child and her family; [ 80 ] ALL THESE MEASURES until her majority, [...], 2025; [ 81 ] ENTRUSTS the situation of the child to the Director of Youth Protection A for the execution of the judgment; [ 82 ] AS TO X AND Y [ 83 ] ENTRUSTS the children to a foster family chosen by the Director of Youth Protection A; [ 84 ] TAKES ACT that Y will be entrusted to the same foster family as to her sister Z; [ 85 ] ORDERS that the parents report periodically to the Director of Youth Protection on the measures they apply; [ 86 ] ORDERS that the contacts between the children and their mother be upon agreement between the parties and in the presence of a third party designated by the Director of Youth Protection and in default of such an agreement: [ 87 ] ORDERS that the access progress minimally twice a month for 3 hours, including the possibility of outside activities; [ 88 ] ORDERS that the contacts between the children and their grand-parents as well as Mrs.

C be upon agreement between the parties and conditional that they agree to not discuss any legal proceedings with the children nor the involvement of protective services; [ 89 ] FORBIDS any contact between the children and their father; [ 90 ] ORDERS that a person working for an institution or body provides aid, counselling and assistance to the children and their family; [ 91 ] ALL THESE MEASURES for 6 months; [ 92 ] ENTRUSTS the situation of the children to the Director of Youth Protection A for the execution of the judgment. __________________________________ BÉATRICE CLÉMENT, J.C.Q. Mr.

Dany Nguyen Articling student for the Petitioner Me Maryse Fournier Attorney for the mother Me Karine P. Poissant Attorney for the children Dates of hearing: May 25, June 9 & 11, 2015