2017 QCCQ 17673, 2017 QCCQ 17673

Protection de la jeunesse — 177947 2017 QCCQ 17673 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 145-41-000479-151 DATE: October 3, 2017 ______________________________________________________________________ BY THE HONOURABLE CELESTINA ALMEIDA, J.C.Q. ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION Applicant -and- X born on [...], 2010 Child -and- A -and- B Parents ______________________________________________________________________ JUDGMENT ______________________________________________________________________ JA1013 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 (DYP) asks the Court to revise and extend the order rendered on July 23, 2015, in respect of the child, in order to be entrusted to a foster family until her majority. [ 2 ] At the hearing, the parents are present but only the mother is represented. The parents mostly agree with the recommendations of the DYP except concerning the foster family. They both wish that their daughter be entrusted to the maternal grandmother until her majority.

They also agree with the filing of the reports to value as testimony of their authors but they preserve their rights to cross- examine them. [ 3 ] The child is not present but duly represented. Her counsel consents with the recommendations of the DYP. She also agrees with the filing of the reports to value the testimony of their authors. [ 4 ] The placement of the child is not contested. In fact, the debate concerns to whom the child should be entrusted until her majority.

The DYP asks that it be her current foster family and for the parents, it should be the maternal grandmother. [ 5 ] The evidence of the DYP is based on documentary evidence and the testimonies of [Social Worker 1], [Social Worker 2], C, D, E and F . [ 6 ] For the mother, her evidence is constituted of her testimony as well as the testimonies of G and H. As to the father, he testifies for himself. Finally, the maternal grandmother also testifies in this case. [ 7 ] In August 2014, the mother was charged with an assault against her daughter. This event led to the child’s placement.

She was entrusted to her current foster family. The child is almost seven years old and she has been living with the same foster family for many years except for short periods of time when she returned to live with her mother and her maternal grandfather. [ 8 ] Since the child has been living with her current foster family, the grandmother has visits with her from time to time. At first, she was not able to have any contact with her granddaughter considering she was on bad terms with the mother. The mother had forbidden

her to have access to the child. However, they managed to settle their misunderstandings and after a while, the visits resumed. [ 9 ] Actually, this feud is the reason why the grandmother was not evaluated as a foster family. On the other hand, when the child’s initial placement occurred, the DYP evaluated other possible family environments for her, namely the ones of G, H and I. [ 10 ] The grandmother has been living in City A for the past years. When she comes to City B, she always calls the DYP to have access to her granddaughter.

On July 23, 2016, the grandmother sent a letter to the youth delegate to communicate her intention to gain custody of her granddaughter. The grandmother already cares for other grandchildren. [ 11 ] The youth protection delegate, [Social Worker 1] was the original case worker in the file when the child was first remove. She was involved with this family until August of last year. She had the opportunity to see the child with her foster family. She was able to notice a strong bond between her and the mother of the foster family (E). She observed that connection on numerous occasions.

The child even calls her mom. [ 12 ] The child has been living with the foster family for a few years now. She is really attached to them. Their home is also located in the community of City B. The child reports that she enjoys spending time with her grandmother but she is always eager to come back to the foster home. [ 13 ] At the beginning of the placement, the child had a really hard time adjusting to her new environment. She was depending on her foster family. She had nightmares and it was tough because of everything she experienced while living with her mother.

The foster family worked hard and spent a lot of time with the child in order for her to get better. [ 14 ] Approximately one year ago, while the child was already entrusted to her current family, her grandmother contacted the DYP to have access to the child and obtained it. Some visits occurred in City A and others in City B. [ 15 ] The youth delegate [Social Worker 2], is now in charge since January 2017. Previously, she was also involved in this case. In fact, she is the one who evaluated the family member’s environments. She explains the history of placement of the child.

In fact, in August of 2012 there was a situation where the DYP had to come to be involved with the child. At the initial intervention they contacted family members for her placement. [ 16 ] At that time, her aunt G was already accredited as a foster family, but she refused the placement. They spoke to I, the maternal grandfather, who also refused. The grandmother was not considered because of the mother’s wishes. Then, the child was for the first time entrusted to her current foster family.

She remained there until November 25, 2012. [ 17 ] At one point, I the maternal grandfather came forward and asked to have the child. Because, of their beliefs system and policy of the City B community Social Services, families have the priority. She stayed with him until July 3, 2013. [ 18 ] In August 2014, a second placement took place when the DYP had to intervene on a physical abuse call. This led to the present file. Once again, family members were approached namely G, H and I, at that point they all declined to have the child. Again, the mother refused that the grandmother be contacted.

The child was entrusted once more to her current foster family, since it was a familiar environment. [ 19 ] [Social Worker 2], noticed since her involvement with the child a really strong bond between her and the foster family especially with E. The child sees her like a mother even if she knows that is not the case. She often saw them during activities in the community. [ 20 ] She also observed a good bond between the grandmother and the child, as it should be in such relations. The child shares that she likes her grandmother very much. She wants to continue visiting her and her cousins.

Although, she does not wish to live there permanently. She always wants to be back with the foster family. [ 21 ] The child mentions things about her grandmother. Such that she does not feel at ease to talk about her foster family in the presence of her grandmother.

Sometimes, when she speaks on the phone with her granddaughter, she often tells her that she will be coming living with her and that upsets the child. [ 22 ] The foster family does not obstruct the contacts between the child and the grandmother; on the contrary, they even change their plans to allow the child to go to family gatherings. [ 23 ] The foster family makes sure that the child is not in contact with untrustworthy people. They are able to protect her and to respond to all her needs. In the family she learns about her culture. The foster family’s father (

F) is strong on Mi’gmaq culture and values. He also speaks Mi’gmaq but even if he did not, it does not mean that he does not have strong beliefs. Besides, the Court will not decide the future of a child based on the language spoken. There are so many other things that should prevail. [ 24 ] Later on, the environment of the grandmother was evaluated. It is a suitable place and she also takes care of other grandchildren of hers. The only negative point is that she moves a lot. [ 25 ] A psychologist has been working with the child since October 2016.

She was able to observe the bond between the child and E when she brings her to the appointments. They have somewhat of a typical relation mother-daughter. When in trouble, she always calls for E. She does not wish to live with the grandmother. [ 26 ] Lately, she does not wish to speak with her grandmother because she feels she is the one fighting to gain her custody. When she does talk to her, she gives brief and short answers. She is afraid that she will make her leave her foster family. She has a physical reaction when returning from City A such as scratching herself.

She misses E when being away from her. [ 27 ] The psychologist was not able to observe the child in the presence of the grandmother. Clinically, a child most of the time

wishes to be back with the family even in the worst-case scenario but for this child, in particular, she wants to go live with her foster family. She wants to continue visiting her grandmother and see her cousins but not live there on a permanent basis. [ 28 ] Regarding the foster family, they are willing to take care of the child until her majority. At her arrival, she had a hard time to adjust to her new surroundings. She had nightmares. She refused to go out because she was afraid that a monster would get her. These experiences lasted on her nearly a year.

The foster family worked a lot with her to overcome her fears and state of mind. [ 29 ] The child is part of the family and she gets along with everyone in the family. They are well aware that the child has to keep a relationship with her biological family and they will continue to encourage it. They go to church but they will respect the family wishes not to bring the child there if asked. [ 30 ] Furthermore, the child attends the school in the community of City B.

There, she participates in activities involving traditional dancing. [ 31 ] Concerning the mother, she lives in City B, close to her daughter and her son. She benefits from visitations with her but only when sober. In that matter, she demonstrates inconsistency. When the contacts occur, they go well and they both appreciate them. The child also has a brother in the community who is entrusted to another foster family. They also visit each other as well. [ 32 ] The mother wants her daughter to go live with her mother. From her perspective, she is a role model and she is structured.

She explains that she has the means, the mentality and the nature to ensure her daughter’s well-being. She saw her girl with her mother and she is not tense, nor nervous or shy around her. [ 33 ] In the event, her daughter goes to live with the grandmother in City A, she will communicate with her through Skype. Anyway, even if she lives in the area she does not see her daughter more often. She is not allowed to see her as she pleases. In the near future, she plans to go and study in City A. [ 34 ] She made a mistake not letting her mother being evaluated as foster family to take care of her little girl.

She explains she was angry with her mother to have reported her to child services. Talking about her mother, she says that she provided for her while growing up a caring household. Her mother represents family and her mother is able to take care of her child. Moreover, she will be able to see her daughter more. [ 35 ] The evidence reveals that the mother is already living nearby and does not ask for more visits, besides she missed many planned contacts. In fact, she is inconsistent with visitations. Moreover, she grew up living with two alcoholic parents who were fighting a lot.

This is far from a nurturing and caring environment. [ 36 ] The father is basically not involved with his daughter. The contacts between them are minimal not to say inexistent. At the beginning of the measures he called to have news but it did not last. He used to have visitations with her but then it stopped when he showed up smelling alcohol. He pretends that it would be in the best interest of his child to be entrusted to her maternal grandmother because she is family. [ 37 ] However, the Court cannot give much credit to his opinion knowing he is not involved at all in the child’s life for the past years.

He does not know anything about her likes and dislikes. They don’t speak with each other at all. He adds that if his daughter lives with her foster family she will not be able to visit his other children. The evidence reveals that she has not seen her father or her siblings for a long time. [ 38 ] Also, two of her great-aunts testified. They noticed a bond between the child and the grandmother. The child expresses her love for her.

On the other hand, the great-aunts don’t seem to have many contacts with the child except for special occasions such as Easter, summer vacations and Christmas sometimes. [ 39 ] One of them, even allowed the mother to come to her place knowing she was forbidden to be in contact with the child, so in fact participated in the commission of a breach of conditions. They were all aware of this condition as admitted in Court. [ 40 ] The other great-aunt also questions child services. She disclosed confidential information about the case through social media.

She even called for public manifestations or disturbance concerning this case. It is surprising since she herself is working in the court system. The Court reminds that this is a confidential matter about a minor child under the care of the DYP. [ 41 ] What about the grandmother? [ 42 ] She used to take care of the child when she was born. She stopped seeing her when she was about two or three years old because her daughter was angry with her. She respected her choice and did not speak nor see her granddaughter for a long period of time.

She was not even advised of her granddaughter’s placement. [ 43 ] When she reconciled with her daughter, she contacted social services to obtain contacts with her granddaughter. She always thought that her daughter would regain custody of the child, but, that was not the case. Afterwards, her daughter asked her to take care of her child. She then tried to communicate with social services but it was not easy from her point of view. [ 44 ] The grandmother is already entrusted with other grandchildren until majority.

She works in an organization for women and has access to many resources to help her granddaughter, if needed. She is family and they get along very well. She knows that all these changes will be difficult, for the child. Some adjustments will arise but she is there for her. She will go to school with her cousins. She will be able to educate her about things she did not learn like culture, values and traditions. [ 45 ] Concerning her relationship with the foster family, at the beginning it was cordial but it became tense when she started the proceedings to be entrusted with her granddaughter.

The relationship between them is not healthy in fact very emotional.

[ 46 ] The grandmother thinks the foster family is unsuitable for the child. She uses an aggressive tone when she speaks with them. The Court can notice the animosity in her voice while speaking about them. The grandmother disapproves many things done by the foster family such as bringing the child to church. Clearly, she does not like this family. [ 47 ] She was never denied access to her granddaughter. Moreover, the foster family had to adjust or change their own activities or plans in order to accommodate the visits with her family.

It is hard to believe that the youth delegate did not return her calls since every time she asked to see the child she was able to. How could she manage to have her, if her calls were not returned? Furthermore, the youth delegate indicates that the grandmother contacted her through her personal email address and sometimes outside office hours. [ 48 ] The grandmother denies talking to the child about her coming to live with her in City A or pressuring her about it. This contradicts what the youth says to the psychologist or foster family.

Nevertheless, while testifying the grandmother adds that it could be her cousins who said that to the child. The problem is how come her cousins heard about that if it is not the grandmother saying it and them repeating it? Even the cousins knew about the court hearing. How come children of such young age know about court proceeding, it is incomprehensible. [ 49 ] Since Easter, the grandmother indicates having problems communicating with her granddaughter. It seems the child does not want to call. The foster family says they have to force her to call.

The grandmother feels that it is the family who is obstructing the contacts because of her wish to seek custody of her. [ 50 ] There are a few concerns in regards with the grandmother. She does not respect an order. In fact, the mother was forbidden to have any contact with the child since charges were brought against her after having assaulted her. Even, if she knew about it she let her come to the house while the child was present. The rest of the family were also aware of it and did not intervene.

It shows that the grandmother cannot impose boundaries when it concerns her own daughter and even less respect conditions. [ 51 ] The other difficulty the court perceives is the collaboration of the grandmother with the services. She does not trust the DYP and even makes comments to that matter through social media. She does not respect the confidentiality required by the law in such cases involving a youth. In fact, she does not follow the rules. [ 52 ] The grandmother disclosed some personal information related to this case to family members.

Afterwards, the information of confidential nature, was revealed by her as well as by her sister through social media, more particularly Facebook. This confirms she is not able to respect the system in place to help children, involved with the DYP. This brings the court to wonder if the grandmother would collaborate with the services since she has a poor opinion of them. [ 53 ] The grandmother argues that if the child does not reside with her she will lose her roots and cultural heritage. It appears from the evidence that the child resides in the community of City B.

The father of the foster family is a member of the Mi’gmaq community. The child attends school as well as the activities in City B. [ 54 ] The role of the grandmother is to have quality time, to share her experience and knowledge. The child already gets an education in City B. However, if it is insufficient in her opinion, she or the mother can palliate for the missing parts. The child stays in the community close to the mother, brother and other family members. For the time being the mother still lives in City B as well as most of her family.

So we cannot say that she will lose her family if entrusted to the foster family. [ 55 ] The objective of the law is to return the children with the parents or family members, if the situation permits it. However there is more than that. We have to acknowledge and assess the whole situation to determine the best interest of the child. Through that process, we have to consider everything surrounding the child, observe her behaviour and development. Likewise, we also have to hear her wishes about where she wants to live. [ 56 ] The roots and cultural heritage are important for the child as well as her family.

However living in a foster home does not mean she does not have a family anymore or that she is not allowed to have contacts or to see them. It is clear that a strong link exists between the grandmother and her granddaughter. This relationship has to prevail and be maintained. [ 57 ] The child is almost seven years old, at this point the legal delays of placement have expired. Since she was entrusted to her current foster family, she progressed positively.

She needs a stable, constant, dependable and nurturing environment. [ 58 ] Even if her grandmother’s surroundings are suitable for the child and that she sometimes goes there for visits, it is still a new and unknown environment for her. She goes there on vacation or on holidays but has never lived there on a daily basis. She only knows her cousins but does not have any other friends or siblings. She does not know the school in that area. [ 59 ] Furthermore, the child has been living with her foster family for at least the past three years.

She expresses her wishes to be in that family even to her psychologist who is an independent witness. She is well integrated in the foster family and she is doing great. She sees E as a mother. She lives in City B and she is part of that community. The majority of her family lives in the area. She already benefits from all the services she needs.

Her life is where she already lives. [ 60 ] Concerning the grandmother, many concerns arise namely her lack of collaboration with DYP, disclosing of confidential information and not respecting conditions. [ 61 ] Regardless, it is still important to maintain a relationship with the grandmother.

There is no doubt that the grandmother loves her granddaughter and they have a strong bond but as it should be for that type of relationship, meaning, grandmother and granddaughter. [ 62 ] After assessing the documentary and testimonial evidence and for all the reasons related above, the Court believes that the child should be entrusted to a foster family designated by DYP until her majority and acknowledges that this family should be the one of E and F; [ 63 ] The evidence demonstrates that the security and development of the child are still in danger. The Court considers that the DYP

has established, through preponderant evidence, that the application is well-founded. The suggested measures appear to be in the best interest of the child. THEREFORE, THE COURT: [ 64 ] GRANTS the application for revision and extension of order; [ 65 ] DECLARES that the security and development of X are still considered to be in danger according to

section 38 of the youth protection act ; [ 66 ] REVISES AND EXTENDS the Court order rendered on July 23, 2015; [ 67 ] ORDERS that the child be entrusted to a foster family designated by DYP until her age of majority ([...], 2028); [ 68 ] TAKES ACT that the foster family be that of E and F; [ 69 ] ORDERS that the visits with the parents be determined upon agreement between the parties and supervised by the DYP as long as deemed necessary; [ 70 ] RECOMMENDS that the visits between the child and the grandmother be encouraged; [ 71 ] RECOMMENDS that the child participate in a psychological evaluation and follow-up if deemed necessary; [ 72 ] ORDERS that all decision-making authority with regard to authorizations to be given concerning the routine or urgent health services, the social, academic, extracurricular and to obtain a passport, social insurance card, driver’s licence or any other legal document that may be needed and delegate such authority to the DYP of the Centre intégré de santé et de services sociaux A; [ 73 ] ORDERS that a person working for an establishment provides aid, counsel and assistance to the child and her family until [...], 2028; [ 74 ] 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 Louyse A. Lemieux for the applicant Me Annie Dupuis for the child Me Alexis Deschênes for the mother Mr. B the father Date of hearing: June 8, 2017