2020 QCCQ 12764, 2020 QCCQ 12764

Protection de la jeunesse — 209333 2020 QCCQ 12764 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT […] TOWN […] Youth Division No: 640-41-001201-091 DATE: April 17, 2020 (written judgment rendered on July 21, 2020) ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X , born on [...], 2009 [SOCIAL WORKER 1], Youth Protection worker, duly authorized by the Director of Youth Protection of the A C.Y.P.C., working in Town A, district A (Quebec) […] Applicant And A, deceased Mother And B , residing and domiciled at […] in Town B, district A (Quebec) […] Father ______________________________________________________________________ JUDGMENT (Section 95 of the Youth Protection Act ) ______________________________________________________________________ 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 extend a decision rendered on September 10, 2019, regarding the child X, born on [...], 2009. At that date, the Court declared the security and development still endangered and entrusted the child to a foster family. [ 2 ] The DYP submits that the situation does not allow a return of the child to his father and that the placement has to be extended. Position of the Parties [ 3 ] The father is absent, but represented by Me Laoun.

He recognizes that the security and development of his child are still endangered and he agrees with the measures, but wishes to have more contacts with his child. [ 4 ] The child is absent, but represented by Me Neptune. He agrees with the measures suggested by the DYP. History of the Situation [ 5 ] On July 16, 2009 , the situation of X was submitted to the Court. He was 2 months old. He was entrusted to a foster family in the region of Town C after his birth. The parents had alcohol and conjugal violence issues. The father was detained for violence against the mother and was released before the child’s birth.

The parents separated a few times. The mother consumed during her pregnancy and started again a few days after the child’s birth. When the parents had no alcohol, they used mouthwash to get intoxicated.

The Court declared that the security and development of the child were endangered [1] and entrusted the child to a foster family for a period of six months. [ 6 ] On December 9, 2009 , a provisional order was rendered and the child was maintained in a foster family. [ 7 ] On February 16, 2010 , the evidence revealed that despite their participation in a therapy, the parents still displayed alcohol and conjugal violence issues. A few police interventions were needed for violence between the parents and the last time, the father was injured and medevaced to Town C.

The mother was found guilty of assault and was sentenced to two years of detention. The Court entrusted the child to a foster family for a period of six months. [ 8 ] On July 15, 2010 , the evidence showed that X has stayed in the same foster family since the beginning of the placement and he was doing well. The parents recognized not being able to meet their son’s needs and agreed that he could be adopted.

The Court entrusted the child to a foster family for another six months in order to prepare a request of eligibility for adoption. [ 9 ] On January 12, 2011 , a provisional order was rendered and the child was maintained in a foster family.

[ 10 ] On May 17, 2011 , the DYP assessed the foster parents (C and

D) who have been taking care of X since he is 3 months old. They took very good care of the child and are very attached to him. The foster father has prior convictions of conjugal violence. The evidence also revealed that events of conjugal violence did not occur anymore and their conjugal situation was now stable. The father agreed with a long-term placement with this family.

The Court was convinced of the interest of the child to be fostered by them despite the prior convictions and the Court entrusted the child until he reaches his majority and gave them attributes of parental authority. [ 11 ] On April 13, 2017 , a provisional order was rendered and the child was entrusted to Ms. E. [ 12 ] On June 12, 2017 , the evidence revealed that the foster father was detained and the foster mother was hospitalized twice for mental health issues. Also X was exposed to substances abuse and conjugal violence. The child went to live at his foster mother’s parents with his foster mother in Town A.

The child is doing better there and the parents are able to take care of him while his foster mother is recovering. The child displayed attachment issues. His biological father was in jail, and his biological mother disappeared for many years. Recently, the child was transferred with his foster mother’s sister and he was doing well. The Court entrusted him to a foster family for one year. [ 13 ] On May 22, 2018 , the Court noted that since the last hearing, the child remained with E. A few times, he expressed that he missed his foster parents. The foster father came back from jail and asked to resume X’s care.

The foster parents made great efforts to demonstrate their willingness, but the foster mother’s mental health issues were too serious. In January 2018, the DYP agreed to return the child under their care. The foster parents were very happy and prepared his room. The day of his arrival, the foster mother disorganized herself, was arrested and was sent down South in jail. Another event occurred with the foster mother in April while she was walking in the street with a knife. She was injured during the police intervention and was hospitalized in Town C for a few days.

Because of the very strong bond and the capacity of the foster father to take good care of the child, the Court maintained him in a foster family until May 31, 2019. [ 14 ] On May 24, 2019, a provisional order was rendered and the previous orders were maintained. Those measures were extended on July 4, 2019 . [ 15 ] On September 10, 2019 , the Court was seized with an application for revision. The evidence showed that the child was entrusted to Ms. E one month after the last decision as his previous foster parents were in Town C for medical reasons.

The mother and her sister committed suicide in March 2019, and the father has not been regularly involved in his child’s life for many years. His brother committed suicide in December 2018. Also, the DYP received a report regarding physical abuse on the child from the part of the previous foster parents. Despite this allegation, X remained attached to Ms. C and Mr. D, who are the most significant people in his life. He still has contacts with them, and the DYP worker does not consider necessary to supervise those contacts, as the violent physical event was an isolated one. Mr.

D lost patience because of all he had to deal with. He still loves X a lot and shows him all his affection. The Court entrusted the child to a foster family and strongly recommended that he be entrusted in the one of Ms. E, with services of an external educator. Finally, the Court ordered that a life plan be prepared. Ms. E is the sister of Ms. C and doing so, she knows X very well. Facts [ 16 ] Since the last order, X stayed at Ms. E’s place and is doing well. He is described as a playful, intelligent and energetic child.

Even if it takes time for him to open on his feelings, when he is at ease with someone, he finishes to express his emotions and he does it adequately. [ 17 ] The school has the same good comments. He attends school regularly and he is doing great academically and has a good behaviour. [ 18 ] X maintained regular contacts by phone with his previous foster parents (around twice a week). He only went once in Town A for a funeral, and the foster parents never went in Town A to visit him. [ 19 ] X is developing healthy and positive bonds with Ms.

E despite the concerns raised by the past regarding some attachment issues. [ 20 ] Ms. E consumes alcohol sometimes, but always ask her mother to babysit X and her children who are always safe. Ms. E is collaborating very well with the DYP and never use any inappropriate educational methods. Ms. E was never involved with the police. [ 21 ] Unfortunately, on March 19, 2020, X disclosed some physical abuse toward him from Ms. E. Ms. E denied it and her daughter confirmed that she never hit anyone in the house. On March 21, X confessed that he lied about the physical abuse because he would like to leave Ms.

E’s place, but he was not able to say why except that Ms. E’s daughter frequently hit him when they play. [ 22 ] Ms. E was met regarding this aspect and was very open to solve this issue. [ 23 ] X was also met to see if some other option could be evaluated, but he affirmed that he want to stay at Ms. E’s place. He just asked that the issues with Ms. E’s daughter be addressed. [ 24 ] Considering the situation with Ms. E’s daughter, X asked the DYP worker to prolong the placement for one year to see how the situation will evolve. Ms.

E, on her side, is ready to have X until he reaches his majority. [ 25 ] The Court questioned the DYP worker about her opinion regarding the reason why X lies about Ms. E, but she ignores it as the child never gave any reason. [ 26 ] The Court reminded the DYP worker that just before the previous hearing (September 2019), X did the same when he disclosed that Ms. E had an alcohol consumption issue.

[ 27 ] Doing so, and considering the suspected attachment issue, the Court raised the possibility that X could act as it is to jeopardize his long-term placement because he is scared to create bonds and to be possibly abandoned another time.

The DYP worker admitted that she did not see the situation as it, but recognized that it could be a possibility which should be evaluated seriously. [ 28 ] The Court asked detail about the aspects worked by the external educator, but the DYP worker answered that despite the order previously rendered, the service had never been provided to X. [ 29 ] The father’s situation remains the same. He had no physical nor phone contacts with his son.

Despite that, he is always concerns by his well-being and always asks questions about his development in his foster family and at school when the DYP call him. [ 30 ] At the hearing, by the voice of his lawyer, the father asks for contacts with his son. He understands that in the actual situation (Covid-19), only phone calls are possible considering they do not live in the same community. Even if the father never take the initiative to call the DYP, the DYP worker has no objection for those contacts and will facilitate it in the best interest of X. [ 31 ] He considers that his son is well taken care at Ms.

E’s place and he agrees that he stay there. Analysis [ 32 ] The evidence confirms, as the parties agree, that X’s situation remains endangered. [ 33 ] As mentioned at the hearing, when the undersigned saw the name of X on the docket, she was convinced that the DYP was asking for a long-term placement according to

section 91 YPA. Surprisingly, it is not the case. Despite the fact that the child had already been the object of a placement until majority and is entrusted to Ms. E since June 2018, a life project is still not prepared. However, this life plan was ordered. [ 34 ] For a long time, the DYP suspected that the child suffer from an attachment disorder, but this concern was never addressed to a specialist and doing so, never confirmed. [ 35 ] If he really has such an issue, his reactions toward Ms. E, always before a hearing, could be explained.

It is not a certitude, but it is a possibility which deserves to be explored. As mentioned, the maximum delays of placements were set to take into consideration the bonds between a child and his caregivers. The younger the child is, the less the delay is long for him to create such bonds, even if a young child does not have the same consciousness of his placement. [ 36 ] For the oldest child, the delay is longer, because it takes more time to create those bonds and the confidence between the child and his caregivers.

It is important with older children to be sure that the match between the child and the family is the good one. That is the first aspect to consider. [ 37 ] But another important aspect with older children is the fact that they need that their future be decided in a timely manner. This decision helps them to root in their new environment and to have the feeling that they belong to this family. [ 38 ] The Court is concerned by the fact that, as for now, X seem to take action to jeopardize his placement and doing so prevent himself from creating healthy bonds.

The Court would have appreciated that a psychological evaluation be done before the present hearing to answer this concern. [ 39 ] As already said, this assertion is a supposition, but it should have been explored and done in a timely manner. Today, the Court should be provided with a life plan for the child, but as nothing is done, this child will not be able to be fixed on his future before another year. [ 40 ] The Court order was not respected regarding this life plan, as it was neither regarding the services of an external educator.

As the well-established jurisprudence mentions, a non-respect of a Court order constitutes an encroachment of rights. [ 41 ] The undersigned is well aware of the lack of resources in [Town A] to offer such services. But as consistently repeated, this situation is not an excuse to the lack of services as the turnover of staff is not an excuse either. [ 42 ] The DYP never mentioned that she was not able to provide these services and she never filed an appeal nor a revision of the decision rendered in September 2019.

Doing so, the services had to be provided and it would have helped to prepare a life plan for this child. [ 43 ] The Court declares that the rights of the child have been wronged and, as corrective measures, will order that the child be evaluated by a psychologist in a short delay and that services be offered intensively until the DYP hire an external educator.

FOR THOSE REASONS, THE COURT: [ 44 ] GRANTS the application; [ 45 ] DECLARES that the rights of the child have been wronged by the Director of Youth Protection; [ 46 ] DECLARES that the security and development of the child X, born on [...], 2009, are still endangered; [ 47 ] ENTRUSTS the child to a foster family chosen by the Director of Youth Protection; [ 48 ] STRONGLY RECOMMENDS that the foster family be the one of Ms. E in Town A; [ 49 ] ORDERS that the child and the father take an active

part in the application of any of the measures ordered by the Court;

[ 50 ] ORDERS that the father report in person, at regular intervals, to the Director of Youth Protection to inform her of his current situation; [ 51 ] ORDERS that the child attend school on a daily basis; [ 52 ] ORDERS that a person working for an institution or body, provide aid, counselling and assistance to the child, his father and Ms.

E; [ 53 ] ORDERS that the modalities, frequency and degree of supervision of the contacts between the child and the father be determined by the Director of Youth Protection; [ 54 ] TAKES JUDICIAL NOTICE that the Director of Youth Protection is open to orga-nize frequent contacts between the child and his father by any technological way and in person if the Public health authorizes the transportation between the two communities. [ 55 ] ORDERS the Director of Youth Protection to prepare a life plan for X; [ 56 ] ENTRUSTS the situation of the child X , to the Director of Youth Protection of the A C.Y.P.C., who shall then see that the measures are carried out; [ 57 ] THE WHOLE until the April 30, 2021.

AS CORRECTIVE MEASURES [ 58 ] ORDERS that the child benefit from a psychological evaluation in a maximum of two months to evaluate, among others, a possible attachment disorder and ORDERS the Director of Youth Protection to obtain the opinion of the professional regarding an appropriate life plan for the child; [ 59 ] ORDERS the Director of Youth Protection to provide to the psychologist a copy of the different reports (evaluation, orientation and revision) made regarding the child, a copy of the present decision and any other information the professional could request including medical and schooling files; [ 60 ] ORDERS the implementation of the psychologist’s recommendations without any delay; [ 61 ] ORDERS that the child and the foster family benefit from the services of an external educator at least once every two weeks; [ 62 ] Until the Director of Youth Protection hire an external educator, ORDERS the Director of Youth Protection to provide a weekly follow-up with the child and the foster family, by phone during the pandemic period, and in person as soon as the pandemic crisis will be finished; [ 63 ] ORDERS the clerk to notify the present decision to the Commission des Droits de la Personne et des Droits de la Jeunesse; [ 64 ] ORDERS the Director of Youth Protection to file a copy of the child’s psychological evaluation upon reception in the Court file, to transmit a copy to the child’s lawyer and to transmit a correspondence to the “greffe de la Cour itinérante – A” and to the child’s lawyer as soon as the external educator is hired; [ 65 ] ORDERS that according to

section 95.1 Y.P.A., the revision of this child will have to be heard by the undersigned. __________________________________ PEGGY WAROLIN , J.C.Q. Me Adèle Cyr, attorney for the Director of Youth Protection Me Cassandra Neptune, attorney for the child Me Ève Laoun, attorney for the father Date of hearing: April 17, 2020