2019 QCCQ 4880, 2019 QCCQ 4880

Adoption — 19279 2019 QCCQ 4880 JB5047 COURT OF QUEBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] TOWN OF […] « Youth Division »

NO: 455-43-000216-180 DATE: August 7, 2019 ______________________________________________________________________ BY THE HONOURABLE PASCALE BERARDINO, J.C.Q. ______________________________________________________________________ IN THE SITUATION OF: X Born on […] [SOCIAL WORKER 1] , assistant to the Director of Youth Protection of CIUSSS A, working at [...] Applicant -and- A -and- B Child’s parents ______________________________________________________________________ JUDGMENT On an application for a declaration of eligibility foR adoption ______________________________________________________________________ WARNING : The judicial files respecting the adoption of a child are confidential and no information that would allow the identification of the child, his parents, his tutor or the adopters may be published or broadcast, except as required by law (sections 12 to 16 C.C.P. and 582 C.C.Q.). [ 1 ] The Court is seized of an application for a declaration of eligibility for adoption concerning the child X, born on […], in Town A. [ 2 ] The child has a maternal and paternal filiation proven by birth certificate. [ 3 ] The child does not have an appointed tutor. [ 4 ] The father and the mother were duly notified on October 9, 2018. [ 5 ] The mother made default to appear. [ 6 ] The father was represented by a lawyer, Me Caroline Rosa, who appeared in this file on December 5, 2018. [ 7 ] She filed the father’s defense on January 30, 2019 and the hearing was to be held on April 12, 2019. [ 8 ] On February 7, 2019, Me Rosa filed a notice to cease to represent the father.

[ 9 ] On March 29, 2019, the father was personally served with a notice to appoint another lawyer or intent to self-represent. [ 10 ] On April 3, 2019, Me Audrey-Tougas Dumesnil, then from the firm of Madore & Cadieux, appeared for the father. [ 11 ] On May 1, 2019, Me Dumesnil filed a notice for substitution of attorney as she joined the firm of Dunton, Rainville. [ 12 ] For reasons pertaining to the court schedule, the hearing was postponed to be held on July 18, 2019. [ 13 ] On July 5, 2019, Me Dumesnil filed a notice to cease to represent the father. [ 14 ] By a letter dated July 17, 2019, filed by the Director, she explains that she has tried on many occasions to meet with her client to no avail. [ 15 ] She affirms that the father was aware of the court date of July 18 th . [ 16 ] Her last conversation with the father was on July 5, 2019.

She reports the following: « Le 5 juillet dernier, nous l’avons recontacté à nouveau par téléphone pour prendre rendez-vous. A refuse la rencontre nous disant qu’il n’a aucun transport pour s’y rendre et qu’il n’a plus de domicile fix(sic), habitant présentement dans une tente, dans les bois, depuis quelques mois.

Il nous dit ne pas se souvenir de nous avoir parlé ni même qu’il a cherché un avocat. » [ 17 ] On July 11 th , the delegate sent the father a letter, to an address provided by the Ministère du Travail, de l’Emploi et de la Solidarité sociale (MTESS) , to remind him to be present on July 18, 2019 for the hearing. [ 18 ] On July 18, 2019, the father was called on two occasions throughout the courthouse to no avail. [ 19 ] The Tribunal notes the father’s absence and authorizes the Director to proceed ex parte . [ 20 ] All procedures provided for by the law, having been duly executed, the Court proceed to the hearing of the motion. [ 21 ] The child’s lawyer, after taking note of the evidence, argues that the Director has met his burden of proof and that the child should be declared admissible for adoption Situation of compromission [ 22 ] The Director alleges that the parents have not in fact assumed the care, maintenance or education of the child for at least six months. [ 23 ] The reference period is from April 9, 2018 to October 9, 2018. [ 24 ] This being said, the period of reference is not a vacuum.

It is the sequel of the family’s history.

To better analyze this period, we must know the historic of the child’s [1] . [ 25 ] [Social worker 2], Director’s delegate, testified before the Court and confirmed all the allegations contained in the declaration and the facts that appear in her report: [ 26 ] The child is subject of judicial protection measures since May 23, 2017, as it appears from the Court file bearing number […], filed as Exhibit D-2; [ 27 ] On May 23, 2017, the Honourable Michel Durand, J.C.Q., granted an application for provisional measures and ordered that the child X be entrusted to a foster family, ordered the confidentiality of the foster family coordinates, ordered supervised contacts between X and her parents, and allowed the mother and child to be entrusted to a resource such as [Centre A] for an assessment of parental capacities, upon availability.

The hearing was set to proceed on July 12, 2017. [ 28 ] On July 12 th , 2017, the Honourable Pascale Berardino, J.C.Q. granted a request to postpone the hearing, since the mother was still awaiting a place in such a resource, and maintained the provisional measures rendered on May 23 rd , 2017. The hearing was set to proceed on September 20 th , 2017. [ 29 ] On September 20 th , 2017, the Honourable Pascale Berardino, J.C.Q. granted a request to postpone the hearing, since the father requested to be represented by an attorney.

The Court ordered that the child X be entrusted to a foster family and maintained all other provisional measures ordered on May 23 rd , 2017.

The hearing was set to proceed on October 4 th , 2017. [ 30 ] On October 4 th , 2017, the Honourable Julie Beauchesne, J.C.Q., granted an application for protection, declared that the security and development of the child X are in danger, entrusted X to a foster family, ordered that the foster family coordinated remained confidential, authorized supervised contacts between the child and her parents, according to the modalities set by the Director of Youth Protection, acknowledged the intention of the Director of Youth Protection to move the child to a long-term basis foster family and to clarify a life plan for the child, including adoption, and ordered a social follow-up for a period of one year. [ 31 ] The child is judicially eligible for adoption because her care, maintenance and education has not a fact been taken in hand by her mother nor her father for at least the past six months. [ 32 ] The mother has a child from a previous union, named Y.

The said child was entrusted by this Court to maternal relatives (grant- aunt and great-uncle) and then adopted by them, as appears from the Court of Québec files, Youth division, District of Saint-François,

bearing number […] and […], filed as Exhibit D-3, in a bundle. [ 33 ] The evidence in those files revealed that the mother has limited intellectual capacities that impair her ability to take proper care of a child. She needs constant supervision with her child and rapidly becomes overwhelmed by her child’s needs. [ 34 ] The father has a child from a previous union, named Z, who is under guardianship of his maternal grandmother.

The father has no contact with this child. [ 35 ] The assessment made by the Director of Youth Protection in the foresaid situation of the child Z, revealed that the father had difficulties in dealing with anger and aggressiveness but refused any kind of help in addressing those issues. [ 36 ] Following the Director of Youth Protection’s intervention, the mother and child integrated [Centre A] between August 3 rd and August 6 th , 2017.

The mother left the said resource after only three days, because it seemed very confronting for her to live separately from her spouse. [ 37 ] During this short stay, the workers observed very poor personal and parental capacities of the mother. [ 38 ] During the Director of Youth Protection’s intervention, the mother showed limited comprehension and ability to assimilate learnings, thus to improve her parental capacities.

She generally acknowledged that she cannot take care of her daughter. [ 39 ] On several occasions, the father has displayed aggressiveness towards the workers, sometimes using threats. [ 40 ] The father refuses to address his anger and aggressiveness problems by any means, claiming that he was always like this and does not intend to change his way of being.

On other occasions, the father tends to blame others or external factors for his impulsivity and aggressiveness problems. [ 41 ] The father uses drugs (cannabis) daily (5 to 10 joints per day) but does not consider that this consumption alters his parental capacities. [ 42 ] The father’s collaboration in the social follow-up has been inconsistent. He generally refuses to meet with the workers or discuss any intervention plan, modalities for visits, or the evolution of the child. [ 43 ] The father does not acknowledge any difficulty or grounds of endangerment retained by this Court.

He claims his daughter would receive better care with him and the mother than in a foster family. [ 44 ] The parents had been assiduous to their visits with the child. They missed only one visit due to a change of the calendar that they did not notice. [ 45 ] During the visits, the parents are generally adequate with the child. However, the mother needs significant support from the father while taking care of the child. [ 46 ] Over the past six months, X has displayed more and more reactions following her return from the visits with her parents.

Consequently the frequency of visits had to be reduced by the Director of Youth Protection. [ 47 ] In the last year, the parents never called the Director of Youth Protection to get news from their daughter or inquire about her development.

When given information at the worker initiative, the parents sometimes inquired about their daughter’s development, but not consistently enough to be able to answer the health professionals during the medical follow-ups. [ 48 ] Both parents did assume the payment of parental contribution for X’s foster care. [ 49 ] [Social worker 3], who replaced [social worker 2] as delegate for the following period because of a restraining order also testified as to the latest development in this situation. [ 50 ] [Social worker 3] confirmed that the parents continued to assume the parental contribution to this day. [ 51 ] However, she also mentions that the father has continued to be non-collaborative towards the Director’s services. [ 52 ] The father has been called, letters and documents were sent to him, and he always answered he was not interested in the Director’s services, being rude and disrespectful while saying so. [ 53 ] The father still has criminal accusations pending for having threatened [social worker 2]. [ 54 ] The parents did not call the delegate to inquire about their daughter after the period of reference.

ANALYSIS [ 55 ] To analyze an application in admissibility for adoption, The Court of Appeal invites us to a three step analysis : 1) Have the mother and father assumed in fact the care, maintenance or education of the child for at least six months? 2) If not, have the mother and father pushed away the presumption to the fact that it is improbable that one of them regain the custody and assume the care, maintenance or education of the child? 3) If neither mother nor father push away the presumption, the Tribunal must still valuate if it is in the child’s best interest that he be declared admissible to adoption.

1) Have the parents assumed in fact the care, maintenance or education of the child for at least six months? [ 56 ] At this step of the analysis, the Court must look at the evidence objectively and from the child’s point of view [2] .

a) Measures taken by the parents to put an end to the situation of compromission [ 57 ] Judge Monique Lavallée, J.C.Q., after reviewing the authorities regarding this criteria mentioned that the first responsibility of a parent is to take all means to put an end to the situation of compromission that led to placement and at the same time, maintain with the child a significant attachment. [ 58 ] As well pointed out by the Director’s lawyer, the first step in order to resolve the situation of compromission is to recognize it. [ 59 ] The mother is able to recognize her limitations and parental incapacities but the father’s recognition of the mother’s limits has varied. [ 60 ] The mother also lets the father speak for them both and is not able to take her own place. [ 61 ] The father’s own shortcomings were not recognized by him.

His aggressiveness and impulsivity has remained constant and the father is not willing to address this issue. [ 62 ] It went as far as threatening the delegates to the point where [social worker 2] filed a criminal complaint against the father, leading to a restraining undertaking. [ 63 ] Furthermore, the father has no faith in the services provided by the Director. [ 64 ] He has rejected them time and again all the help that was suggested to overcome his personal issues. [ 65 ] Not satisfied by only refusing services, he has been making disparaging and insulting remarks to the delegates who communicated with him. [ 66 ] The father also has a drug consumption problem.

He smokes marijuana on a regular basis.

At one time, he admitted smoking 5 to 10 joints a day. [ 67 ] He minimizes his consumption and does not recognize that his drug use can interfere with his parental capacity, his availability to the child or his vigilance to protect her. [ 68 ] The parents have even presented themselves to contacts heavily smelling of marijuana. [ 69 ] The parents have not involved themselves in any social follow up. [ 70 ] Although they have been diligent in attending their supervised contacts with the child, they have never accepted to receive the feedback from the workers, thus not working on their parental capacity. [ 71 ] They have refused to participate in the Intervention Plan. [ 72 ] Although the father participated in the [Program A], he did not participate much, mentioned he found the course ridiculous and even said he accepted to go there in order to create a group of parents against DYP. [ 73 ] In short, the parents have not taken steps to put an end to the situation of compromission.

b) The parents’ sensitivity to the child’s needs [ 74 ] Although the parents have been regularly attending the supervised visits, they have not inquired about the child’s routine and her needs or stage of development. [ 75 ] The visits were mostly to their own benefit and not the child’s. [ 76 ] The father even refused to sign the authorization for the child to attend daycare, stating that the foster home should be taking care of her, not taking into consideration his child’s needs for stimulation, socialization and development. [ 77 ] To their credit, the parents have signed medical authorization and even participated in medical appointments. [ 78 ] They have also paid in full and more, their parental contribution. [ 79 ] But that is not enough.

In the child’s perspective, the parents must interest themselves in how she is doing, if she reaches her development milestone, etc. [ 80 ] The parents have never inquired about this. [ 81 ] In fact, they have never contacted the delegate to obtain news about their child to see how she was doing. [ 82 ] When the child started to react to contacts, they were not able to understand from the child’s point of view that she was not feeling well during and after the contacts. [ 83 ] When they were finally suspended after the child had a skin reaction after the contact, the father said that their contacts were stopped for no good reason.

[ 84 ] The father, particularly, has shown very insensitive to his child’s needs.

c) The emotional link between the parents and the child [ 85 ] The parents were not able to create such attachment with the child, the mother, for lack of parental skills and the father, for lack of parental sensitivity. [ 86 ] The fact that they were not willing to participate in the social follow-up after the visits to improve their relationship with the child made it so that they failed to create an emotional link. [ 87 ] Having examined the evidence, heard the persons authorized by the Director of Youth Protection, the Court comes to the conclusion that the parents have not taken in hand the care, the maintenance and education of the child for the last six months; 2) Have the parents pushed away the presumption to the fact that it is improbable that one of them regain the custody and assume the care, maintenance or education of the child? [ 88 ] Neither parent was present in court to present with a concrete and realistic plan in order to regain custody and assume the care, maintenance or education of the child, as is requested by the jurisprudence. [ 89 ] Far from it, there has been no step to put an end to the situation of compromission. [ 90 ] The presumption edited in

article 561 of the Quebec Civil Code , to the effect that it is unlikely that the father or the mother will resume custody of the child and take in hand their daughter’s care, maintenance and education, has not been overturned. 3) Is it in the child’s best interest that he be declared admissible to adoption? [ 91 ] The child X resides in her current foster family since October 16, 2017. [ 92 ] X is well integrated and has created a significant affective bond with her foster parents. [ 93 ] All of the child’s needs are met in her foster home. [ 94 ] The foster parents desire to assume the child care on a long term basis and would like to adopt her. [ 95 ] It is in the best interest of the child X to be judicially declared admissible for adoption.

FOR THESE REASONS THE COURT: [ 96 ] GRANTS the application for a declaration of eligibility for adoption; [ 97 ] DECLARES the child X, born on […], judicially eligible for adoption; [ 98 ] DESIGNATES the Director of Youth Protection of CIUSSS A to exercise parental authority in regards to the child X; [ 99 ] ORDERS to the clerk of the Quebec Court to transmit to the parties a copy of the present written judgment . ___________________________________ PASCALE BERARDINO, J.C.Q.

M e Christine Loubier Attorney for the Director of Youth Protection M e René Sévigny Attorney for the child Date of Hearing: July 18, 2019 Exhibits: D-6