2013 QCCQ 10112, 2013 QCCQ 10112

Adoption — 13158 2013 QCCQ 10112 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC [...] « Youth Division » N° : 105-43-000132-115 DATE : June 3 rd , 2013 ______________________________________________________________________ BY HONOURABLE HERMINA POPESCU J.C.Q.

PRESIDING ______________________________________________________________________ DIRECTOR OF YOUTH PROTECTION Petitioner vs C Mother and D Father ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Petitioner asks this Court to render a judgement X (DOB: […], 2007) ("the child") eligible for adoption. His Motion is dated October 20, 2011. [ 2 ] The mother contests this demand. [ 3 ] The father is absent from the child's life almost since his birth. He is also absent at the hearing.

THE FACTS: [ 4 ] The Petitioner is present in the child's life since his first year of life because of his parents' neglect. [ 5 ] On June 2, 2008 this Court declared endangered the security and development of the child (

X) because of the parents' neglect. X was entrusted to a foster family and the Court ordered a progressive integration with his mother, to be completed until November 10, 2008. The Court underlines that it is important that the mother improves rapidly different aspects of her life and in the way she deals with the daily care of X. [ 6 ] On November 10, 2008 the Court reviewed this order and entrusted X to a foster family until June 30, 2009.

This review was necessary because of the fact that the mother was not able to take care of him: she lived in a relationship tinted by domestic violence, she had an unstable lifestyle and drinking problems. [ 7 ] On October 2, 2009 the Court reviewed the judgement rendered on November 10, 2008.

This judgement entrusted X to a foster family until his majority and ordered contacts between him and his mother. [ 8 ] This judgement was motivated mainly because of the fact that the mother was unstable, that she moved many times with new boyfriends, that she attempted suicide on few occasions and because she spent a few periods of time in jail. [ 9 ] The Court underlines the fact that the mother did not do the psychiatric and psychological assessments, as recommended in the past. [ 10 ] The father was serving a 30 months jail sentence in […] because of drug related convictions. [ 11 ] At the hearing, the Petitioner indicated that he had first projected an adoption for X, but then amended the conclusions and rather asked that he be entrusted to the foster family where he was living until his majority. [ 12 ] On January 14, 2011 this Court reviewed the judgement rendered on October 2, 2009.

This judgement reduced the duration and frequency of the contacts between the mother and X and ordered that these contacts be supervised. It also delegated to the X's foster

family all legal authority concerning any consent or authorisation with regard to his health services, education, leisure activities and passport needs. [ 13 ] This judgement was mainly motivated by the fact that many contacts between the mother and X aborted because of the mother's behaviour. She was unstable, there was no real affective bond between X and her, as she often prioritized her own needs and interests. [ 14 ] Even if the mother complained of the fact the contacts were insufficient, she did not take fully advantage of the planned contacts.

In the circumstances, the judge decided that the best interest of X required that a " lien de connaissance " be substituted to a " lien parental " and therefore reduced that duration and frequency of the contacts. [ 15 ] The mother's situation was stagnant and did not change in a positive way. [ 16 ] X is now 6 years old. He was first entrusted to a foster family, for about a week, when he was only one month old. During the summer of 2007, he lived with his grandmother for four month. [ 17 ] He was entrusted to a foster family following the judgement of June 2, 2008 and was not returned to his mother.

He changed twice his foster family and lives in the same one since June 2009. [ 18 ] The mother was born in […], where her family lives. She is young (27 years old) and did not have an easy life. She has five children: Y, X, Z who are entrusted to foster families. On […], 2012 she gave birth to premature twins, A and B who spent the first months of their lives in the hospital and were entrusted as well to a foster family immediately after their release from the hospital. [ 19 ] In July 2010, the mother informed the Petitioner that she has also a 7 years old son that she gave to her sister in […].

The child does not know who his biological mother is. [ 20 ] The mother's relationships are tinted with domestic violence and instability. [ 21 ] Y and Z are fathered by E. They split after having Y. [ 22 ] The mother had X with D and then got back with Mr E and gave birth to Z. [ 23 ] The twins are fathered by F. [ 24 ] The relationship between the mother and Mr. D was a chaotic one: they split and quarrelled often. On May 26, 2010 the mother informed the Petitioner that they were going to get married the next day. This marriage never took place.

Their relationship finally came to an end in August 2010. [ 25 ] She met Mr. F in New Brunswick during the summer of 2011 and started helping him in doing roofing jobs. She started living with him and they both came to live in […]. [ 26 ] The mother had drug and alcohol addictions. Also, criminal charges were brought against her in relation with violence against police officers and spouses, charges of which she was found guilty. [ 27 ] In April 2011, the mother went for a vacation at the end of March 2011 in […].

She came back to […] in November 2011. [ 28 ] When the mother was to […], she gave no address to the Petitioner. She was hard to reach during that period. [ 29 ] On August 22, 2011 the mother informed the Petitioner that she lived in […] with her mother. She finally came back to […], in […], in November 2011. [ 30 ] She moved with Mr.

F in an apartment in […] in May 2012, and they moved in July 2012 in a bigger apartment in […], where they lived until she got in jail. [ 31 ] At the date of the hearing, the mother was serving jail time as she was found guilty of breach of probation, bodily harm against F and mischief. A restraint order is in place preventing her to be in contact with Mr. F. [ 32 ] Mr. F is also serving jail time. [ 33 ] In spite of this, the mother claims that there was a "little event" between her and Mr. F, admitting, in cross-examination, that she bit his ear.

She wants the restraining order to be removed, as she wants to get back with Mr. F. She says that F is her fiancé and that everything is now fine with their relationship. [ 34 ] From April 2011 to November 2011, the mother had few contacts with the Petitioner. She did not ask news from X. [ 35 ] As X started school in September 2011, the mother was asked to give an authorization so that he will be able to attend English school but mother never gave this authorization. So X attends French school (pré-maternelle) since September 2011. [ 36 ] After coming back to [region A] the mother asked to see X.

During these visits, the mother acted correctly avec X, she had toys for him and played with him. They play together and have fun together, however X does not recognize her as his mother. [ 37 ] The mother last saw X in May 2012. She wanted to see him in August 2012 but she was not allowed to do so by the social worker because of an

interpretation of the January 14, 2011 judgement. [ 38 ] A visitation was asked for in December 2012 who could not take place as the mother was incarcerated.

[ 39 ] Since giving birth to her twins on […] 2012 the mother spent a lot of time in […] where the twins were hospitalized. [ 40 ] The mother recognizes that she had in the past mental health issues. She did not do the psychiatrist assessment, even if she met three times with a psychiatrist.

As per the psychological assessment, she did not like the psychologist she met in […], so she went to […] and met there a psychologist, but she does not remember his/her name and did not produce any document to prove this assertion. [ 41 ] When she will finish her jail time, the mother plans on returning living in […], where she will live in the barn of one of her friends, where she already lived in the past. If she will be able to have the restraining order with Mr. F removed, she plans on living with him again and help him on doing roofing jobs. [ 42 ] The mother explains that X is her number one priority.

She will do anything for him. She does believe that the eligibility for adoption is not in X's best interest. [ 43 ] The mother testifies that X was placed for an allegation that was not even true. She explains that she did nothing wrong, that she was a good mother and that her children had anything they needed, they were taken care of. [ 44 ] All along the years, the mother's collaboration with the Petitioner was not an easy one. [ 45 ] [Social Worker 1] is the authorized person for the Petitioner from 2009 to 2012.

She explains that she tried, unsuccessfully, to have information from the mother with regard to the psychiatrist and psychological assessments. She explains that the mother does not agree with X's placement to majority, therefore she does not collaborate. [ 46 ] During the contacts with X, the mother is focused on her needs, not on X's. She is centered on the present, and never asks X how is school or what activities he does. [ 47 ] During the last contact with his mother, X kept calling her by her name and not " Mommy ", as he did in the past.

At the end of the visit, he explained to Ms. [Social Worker 1] : "A does not like to be called by her name. " He does not try to get close to her or have any kind of affection for her. [ 48 ] X is living in the same foster family since June 2009. His foster mother, G, explains that her husband and she are ready to invest on a long term with X. [ 49 ] Ms. G explains that her husband and she don't have any children. Her husband has a 23 years old son from a previous marriage, who does not live with them. [ 50 ] X knows his story and reacts well with it. [ 51 ] X is a happy child, doing well in school.

He is above average in everything, except French. This situation is normal, as X speaks English at home, and he attends school in French. [ 52 ] X does plenty of activities: swimming, hockey, taekwondo, golf. His foster parents do many activities with him. X is very close to his foster parents. He tells them he loves them 20 times a day. [ 53 ] Ms. G and her husband are willing to adopt X. She testifies that they can give X stability, unconditional love, a stable and safe environment. X is the focus of their lives. THE LAW : [ 54 ] Here are the relevant sections of the Civil Code of Québec (C.C.Q.) : 33 .

Every decision concerning a child shall be taken in light of the child's interests and the respect of his rights. Consideration is given, in addition to the moral, intellectual, emotional and physical needs of the child, to the child's age, health, personality and family environment, and to the other aspects of his situation. 543. No adoption may take place except in the interest of the child and on the conditions prescribed by law. (…) 559.

The following may be judicially declared eligible for adoption: (1) a child over three months old, if neither his paternal filiation nor his maternal filiation has been established; (2) a child whose care, maintenance or education has not in fact been taken in hand by his mother, father or tutor for at least six months;

(3) a child whose father and mother have been deprived of parental authority, if he has no tutor; (4) a child who has neither father nor mother, if he has no tutor. 561. A child may not be declared eligible for adoption unless it is unlikely that his father, mother or tutor will resume custody of him and take in hand his care, maintenance or education. This unlikelihood is presumed. [ 55 ] The Appeal Court of Quebec [1] established clearly that under section 559(2) C.C.Q. the Court must follow a three steps process : 1. constater que "ni le père et mère, ni le tuteur n'ont assumé de fait le soin, l'entretien et l'éducation depuis au moins six mois" (

article 559 , alinéa 2, C.c.Q. ) 2. si oui, déterminer si les pères et mères ont repoussé la présomption qu'il est improbable que l'un d'entre eux "en reprenne la garde et en assume le soin, l'entretien ou l'éducation" (

article 561 C.c.Q. ); 3. si non, exercer, dans l'intérêt de l'enfant , la discrétion que notre cour a reconnue dans les arrêts Droit de la famille – 1544 et Droit de la famille – 1914 qui confirme Droit de la famille – 1914 (sic) [ 56 ] In order to determine if the mother and father did not in fact took in hand the care, maintenance or education of the child, the Court has to examine if the parent "… a assumé l'essentiel de la charge même s'il est à l'écart du quotidien" . [2] [ 57 ] The Appeal Court of Québec [3] establishes as follows the objective criteria to take into account in order to determine if the parent took in hand the care, maintenance or education of the child (559(2) C.C.Q.) : Ces études permettent, en effet, de retenir un certain nombre de critères objectifs pouvant être pris en compte pour déterminer si les parents ont assumé de fait le soin, l'entretien ou l'éducation: - Les parents ont participé activement au plan d'intervention sociale visant à mettre fin à la situation de compromission ayant justifié la mise sous protection de l'enfant. - Les parents ont continué de s'intéresser à leur enfant en démontrant une réelle préoccupation pour son bien-être. - Les parents ont posé des gestes concrets et répétés dénotant qu'ils portent une attention véritable à l'enfant. - Les parents ont contribué financièrement à l'entretien et à l'éducation de l'enfant lorsque la situation le permet. - Les parents ont développé un lien affectif avec l'enfant.

Ce dernier critère n'étant toutefois pas nécessairement requis, selon le juge Dalphond. [ 58 ] With regard to the second step of the analysis, here is what the Appeal Court writes : [4] [47] La Cour, à l'occasion de trois arrêts de principe, a fixé les critères qui doivent guider le juge de première instance dans la difficile tâche d'apprécier la probabilité d'une reprise en charge d'un enfant.

Je les rappelle brièvement. [48] En premier lieu, la capacité parentale doit être appréciée non de manière générale, mais spécifiquement en relation avec l'enfant dont il s'agit : la capacité de donner des parents ne suffit pas, encore faut-il aussi que l'enfant puisse recevoir utilement ce que les parents ont à offrir.

Cela suppose la possibilité d'établir un lien affectif avec l'enfant dont la preuve incombe, encore une fois, aux parents. [49] En second lieu, notre Cour a exigé que le parent fasse la preuve que la reprise de contacts avec son enfant est dans le meilleur intérêt de ce dernier. [50] Enfin, toute la preuve soumise dans le cadre de l'

article 561 C.c.Q. doit être analysée sous l'angle de l'enfant, non sous celui de ses parents et sans référence aux intentions de ces derniers. ANALYSIS AND DECISION : 1. Has the mother taken in hand the care, maintenance or education of X during the last six months? [ 59 ] The dominant evidence demonstrates that the mother did not take in hand the care, maintenance or education of X. [ 60 ] X lived very little with his mother since he has been born. He lives in the same foster family since he was 2 years old. [ 61 ] The mother has an unstable life style. After X was born, she went back to live with Mr.

E, even if their relationship was tinted with separations and violence. She had another child with him. During this time, X was in foster home. Instability is still a part of her life.

[ 62 ] The evolution of X's situation is clearly stated in the judgements rendered in Youth Protection matters. The mother clearly had her chance to correct the situation that endangered X, but she did nothing to correct it. [ 63 ] The mother did not participate to the intervention plan. She moved often and she did not have contact on a regular basis with the Petitioner. She did not take advantage of the services available to her and suitable to help her correct the situation of danger regarding X.

Instability is always present in her life. [ 64 ] Following the judgement rendered by the Youth Division on October 2, 2009, X was entrusted to a foster family until his majority. The mother knew then that the Petitioner's initial intent was to ask for eligibility for adoption. [ 65 ] By mentioning this in the judgment, the Court clearly sent a message to the mother: if there are not going to be any improvements to the situation, the necessary steps will be taken in order to declare X eligible for adoption. [ 66 ] Unfortunately, there was no positive evolution on the mother's side.

It is in these circumstances that the Youth Division rendered the judgment of January 14, 2011, reducing the contacts between the mother and X. [ 67 ] Following this judgement, the mother did not take advantage of the services available to her. She did not collaborate with Petitioner's representatives. [ 68 ] Even at the hearing in front of this Court, after so many judgements rendered by the Youth Division, the mother maintained that X was placed following allegation that was not true.

That she did nothing wrong and she took appropriate care of X. [ 69 ] Having this point of view, she did not participate in any way to the interventions of the Petitioner in order to put an end to the situation of endangerment. [ 70 ] She decided to go for a vacation […] in March 2011, and came back to […] in November 2011. [ 71 ] The dominant evidence demonstrates that during this time frame she did not contact the Petitioner's representatives, she did not ask for news from X, of how he was doing, in his foster family or at school. [ 72 ] She loves X but she does not translate this love in concrete gestures that can show X she is his mother.

She does ignore what X's day to day routine is made off, what his life is like. [ 73 ] Even if X is aware of the fact that she is his biological mother, he does not call her " Mommy ", as he did before. They play the few times they get together, but he does not get close to her or have any kind of affection for her. [ 74 ] X's behaviour is normal. He does not have regular contacts with his mother. For him, she is not his " Mommy ". [ 75 ] He has a significant relationship with his foster family, who takes good care of him since he was 2 years old.

It is because of their love, support and stability that X is now a happy child, who does well in school and is doing many activities well suited for his age. [ 76 ] The mother complains of the fact that the Petitioner did not apply correctly the terms of the judgment rendered on January 14, 2011, thus preventing her from seeing X. This argument is not supported by the evidence. And even if it were, if she truly believed that, she could have taken the necessary legal steps in front of the Youth Division, which she did not. 2.

If not, did the mother reverse the presumption that it is unlikely that she will take in hands the care, maintenance or education of X? [ 77 ] The mother did not reverse the presumption that it is unlikely that she will take in hand the care, maintenance or education of X. [ 78 ] The mother is in jail at the time of the hearing. When asked about her plans when getting out of jail, she mentions she wants remove her restraining order with Mr. F, and that she will live and work with him. [ 79 ] In planning to get back with Mr. F, the mother repeats the pattern of her relationship with Mr. E.

These relationships are tinted with violence and instability. [ 80 ] The evidence shows that her future plans are vague, imprecise and do not consider X's best interest. [ 81 ] Also, the affective link between X and his mother is not present. X is well integrated in his foster family, who is willing to adopt him. All his needs are answered by the foster family. His mother is only a play partner for him. 3.

Is it in X's best interest to be declared eligible for adoption? [ 82 ] The Court concludes that it is in X's best interest to be declared eligible for adoption. [ 83 ] If X has a sense of what a family represents, it is because of his foster family who took care of him for the past 5 years. [ 84 ] X has the right to enjoy a normal child's life. The foster family is the only one to offer this life, the stability and love that he needs. THEREFORE THE COURT : [ 85 ] GRANTS the Petition for a Declaration of Eligibility for Adoption; [ 86 ] DECLARES that X (born on […], 2007) is eligible for adoption;

[ 87 ] DESIGNATES the Director of Youth Protection A to exercise parental authority with regard to X ; [ 88 ] ORDERS this Court's clerk to notify this judgement to the parties' attorneys. __________________________ Hermina Popescu j.c.Q. Me Louyse Andrée Lemieux Paradis, Smith & Lemieux, Avocates Attorney for the Plaintiff Me Réal Grenier grenier grenier &grenier, avocats Attorney for the child Me Andrée Rioux Attorney for the mother Date of hearing : April 9 &10, 2013