2020 QCCQ 13463, 2020 QCCQ 13463

Protection de la jeunesse — 209352 2020 QCCQ 13463 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 640-41-002418-207 DATE: May 19, 2020 (written judgment rendered on November 16, 2020) ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X , born on [...], 2013 [SOCIAL WORKER 1] , Youth Protection worker, duly authorized by the Director of Youth Protection A, working in [...] Applicant and A, residing and domiciled at [...] Mother and B, residing and domiciled at [...] Father ______________________________________________________________________ JUDGMENT (Section 38 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 declare the security and development of the child X, born on [...], 2013, endangered under

section 38 (b) (1) ii [1] of the Youth Protection Act . [ 2 ] The DYP asks to entrust the child to a foster family until July 31, 2020. Position of the parties [ 3 ] The mother is present and represented by Me Cassandra Neptune. She recognizes that the security and development of her child are endangered and she agrees with the measures. [ 4 ] The father is absent and not represented. He recognizes that the security and development of his child are in danger and he agrees with the measures. [ 5 ] X who is 6 years old is absent, but represented by Me Angèle Tommasel.

She submits to the Court that the security and development of the child are endangered and the measures are in her best interest. History of the situation [ 6 ] On August 30, 2018 , the DYP received a report regarding neglect in terms of medical needs. At that moment, X had been diagnosed with a kidney failure and her medical situation was degenerating. The parents have six children, and the mother was pregnant. Doing so, they were not able to give all the time she needed nor to escort her in Town A. [ 7 ] On October 23, 2018 , the DYP concluded that the security and development of the child were endangered under

section 38 (b) (1) ii. The DYP worker present at the hearing ignores why it took so long to finalize the evaluation of the report. [ 8 ] On January 8, 2019 , the parents signed a voluntary measure for a period of one year. They agreed to entrust their daughter to a foster family. This long delay between the conclusion of the report and the signature of the report was due to the fact that the DYP was looking for a foster family. X was residing at Town B, but this option was a temporary one.

X had to be entrusted to a foster family. [ 9 ] On January 7, 2020 , the parents signed a new voluntary measures to the same effect for a period of three months, to complete the maximum delay of 18 months prescribed by the law. Facts [ 10 ] The parents have seven children. The oldest is 12 and half years old. The youngest is 9 months old. X is the fourth one. The

family is known from the DYP since 2015, because of four reports received mostly regarding neglect.

Regarding two reports, the facts were founded, but for none of those reports, the security and development were endangered. [ 11 ] Except for the oldest one who lives with his maternal grandmother under a family agreement, and X who is fostered, all the other children live with the parents in the community Town C. [ 12 ] The father does not work while the mother generally works on a full-time basis for the land holding. [ 13 ] On August 15, 2018, X had to go to Town A for medical reason and she never went back to Town C. She lives in her current foster family, with Mr. C and Ms.

D since December 11, 2018. [ 14 ] The youngest child has important health issues, and the mother had to go to Montreal with him. The father stayed at home with the other children. Considering he does not work, and the mother is not there, he has financial difficulties to provide for his children and finished to seek help through the Social Services and the DYP. [ 15 ] Considering her very specific medical conditions, X is in Town A since quite two years now. She misses her parents and siblings a lot.

She is very emotional when she speaks with them. [ 16 ] The DYP worker explains that the parents never refused to provide the medical services to their daughter. They are just unable to attend the appointment with her and to remain in Montreal with the five other children to take care of. [ 17 ] The Court asks the DYP if it is more a question of availability of the parents or more an incapacity from the nursing in Town C to offer the appropriate service.

According to the DYP worker, it is both as even if the parents would be available to accompany her at the nursing in Town C a few times a week, X would have had to come in Montreal at one point because she needs a transplant. [ 18 ] Ms. Sonia Champoux nurse, and Dr. Indra Gupta pediatrician, at the Montreal Children's Hospital confirm [2] that X suffers from a congenital nephrotic syndrome and she has only one kidney. She will need dialysis and a kidney transplant in a near future.

She is followed on a regular basis with the following specialists: nephrology, cardiology, pneumology, ENT, speech specialist, dentist, immunology, ophthalmology and audiology. She has a lot of medication to take on a daily basis following a very strict schedule. [ 19 ] In their letter dated on October 3, 2019, the nurse and the pediatrician give more detail about each diagnosis. [ 20 ] X is actually living with her current foster family since December 2018.

Despite her important health issues, she is developing well there. [ 21 ] According to the pediatrician and the nurse who signed the letter on October 3, 2019: […] La famille d’accueil de D et C nous a démontré à maintes reprises leur capacité de soutenir X en lui procurant sécurité, amour, vie familiale et en assurant le suivi médical approprié. Il est très difficile de trouver des familles d’accueil si dévouées. La famille d’accueil de X est une famille militant pour s’assurer que tous les besoins de X soient pris en charge.

Madame D est celle qui nous a alertés du problème de vision de X, ceci n’étant qu’un exemple de sa contribution au bien-être de cette enfant. La famille doit donner des injections sous-cutanées douloureuses tous les jours. Ce que la famille d’accueil fait pour X est héroïque. Étant donné l’état de santé si fragile et grave de X, sans compter la quantité de soins requis et les multiples visites à l’hôpital, c’est quasi impossible de trouver une famille d’accueil prête à s’investir de cette façon.

C’est une chance unique d’avoir réussi à avoir une famille d’accueil si dévouée auprès de X. [ 22 ] For those professionals, X has to live in a stable environment to be eligible to a transplant. [ 23 ] Still in this letter, the nurse and the pediatrician mention that: Lorsque X était à Ville C, le personnel sur place ne se sentait plus en mesure de donner des soins sécuritaires étant donné la condition de X. De plus, certains tests n’étaient pas disponibles comme le gaz sanguin.

En étant greffé ou en insuffisance rénale, il n’est pas rare d’avoir besoin de tests et résultats rapidement, ce que Ville C ne pouvait pas offrir. De plus, les parents biologiques de X n’étaient pas en mesure de prodiguer tous les soins requis pour éviter une détérioration de la santé de celle-ci.

Ce sont des parents aimants, mais incapables de fournir les soins médicaux dont X a besoin. [ 24 ] The Court does not retain those comments which are based only on hearsay. [ 25 ] On another aspect, the Court is concerned by the fact that the numerous praises given by the specialists to the foster family are not totally shared by the DYP collaborator from the region of Town A.

For a better understanding and for the purpose of a potential revision of the situation, the Court reproduces some relevant extracts of her report [3] dated on November 1, 2019: […] Le milieu d’accueil éprouve des difficultés importantes à être assidu au suivi orthophonique. […] La fréquence et l’intensité requises par les suivis sont difficilement viables pour le milieu d’accueil. […] Ainsi, X n’a pas eu de nouveau bilan orthophonique depuis mai dernier et elle est en attente de prise en charge par le Centre de réadaptation A.

Au printemps ainsi que durant la période estivale, nous avons dû recadrer le milieu d’accueil qui était réfractaire concernant les contacts avec les parents. […] le milieu d’accueil tient un discours ambivalent concernant les contacts avec les parents. En effet, ils sont en mesure de comprendre l’importance et la pertinence de maintenir un contact avec les parents. Ils mentionnent toutefois que les parents ne se prévalent pas de leurs contacts, ne lui posent pas de questions sur la situation de l’enfant et sont irrités par l’organisation précaire des derniers contacts en présence.

Ils questionnent également le niveau de sécurité de ce type de contact pour l’enfant et adhèrent à la position médicale en ce sens. […] […] nous avons dû recentrer le milieu d’accueil à plusieurs reprises, afin qu’ils respectent leurs engagements en ce qui a trait au suivi mensuel en orthophonie au Children’s Hospital et qu’ils se présentent aux rendez-vous demandés. […] Madame D explique toutefois ces

éléments par la lourdeur associée aux différents suivis. Dès le printemps 2019, le milieu d’accueil souligne l’ampleur de la tâche associée aux divers suivis de l’enfant et les difficultés occasionnées par la conciliation travail-famille. […] Ainsi, elle demande une plus grande reconnaissance financière pour supporter le maintien du placement de l’enfant dans son milieu. À ce moment, nous en informons le Centre jeunesse de Ville A. Au mois d’août 2019, le milieu d’accueil (madame

D) réitère ses difficultés à maintenir l’enfant chez elle considérant l’ampleur de ses besoins médicaux et elle remet en question le placement de X. […] elle est également hésitante à s’engager dans toute démarche à long terme dans l’incertitude d’une entente claire avec l’établissement considérant le maintien du placement de l’enfant. Cette dernière maintient sa demande d’obtenir une contribution quotidienne de 200 $, afin d’assurer les dépenses reliées au transport pour ses rendez- vous médicaux, ainsi que toutes autres dépenses reliées à sa fréquentation scolaire.

Elle nomme clairement que dans l’incapacité pour le Centre jeunesse de la soutenir en ce sens, un déplacement de l’enfant devra être organisé. Un rappel sur leurs rôles et responsabilités auprès de X a été nécessaire, car le milieu d’accueil nous a menacés d’amener l’enfant directement aux bureaux de l’établissement. […]

Malgré l’attachement significatif positif très présent envers l’enfant, le milieu d’accueil maintient sa position et demande un déplacement d’ici le 1 er décembre 2019, si l’établissement refuse leur demande à nouveau. […] Au moment de la rédaction, nous sommes toujours en attente d’une position claire du Centre jeunesse de Ville C concernant les ententes financières avec le milieu d’accueil. […] Le milieu d’accueil nous apparaît fragile, mais demeure à l’écoute des besoins de l’enfant et assure l’ensemble des suivis médicaux requis pas son état. […] [ 26 ] The DYP is conscious about those two positions.

A meeting was held with the doctors and the DYP worker present concluded that the doctor only see the medical aspect of X’s situation. The DYP had to intervene many times about the organization of the contacts and for the follow-up with the speech therapist. Currently, the DYP is looking for another foster family. The actual foster family is available to continue the placement until X start the dialysis, but not after.

The issue is the fact that the medical team impose that X be in a stable environment to be eligible to a transplant. [ 27 ] This evaluation of the foster parents was recently made in view of a long-term placement. This evaluation conclude that they cannot foster X on a long term basis mostly because of their indecision about welcoming X for a longer period of time and the family’s life plan do not correspond to X’s needs.

The foster parents come from another country and plan to go back living in their origin country. [ 28 ] The DYP started to look for another foster family during the summer 2019, but the specific needs of X make that difficult. And also more the time pass, more X develops bond with them. [ 29 ] The parents miss their daughter and she misses them also. She becomes very emotional when she speaks with them. According to the medical specialists, the visit in the North should not be authorized because she has to stay close to a hospital able to quickly answer any difficulty.

The parents thought about moving to Town A, but Town C is their town and they do not like the life in Town A. Also, it is very difficult for them to travel to Town A with six children and once there to meet X’s needs and at the same time taking care of the other children. [ 30 ] The parents now have internet access at home to favour the contact with X, but some difficulties occurred with the foster family who, as mentioned, does not favour those contacts.

The DYP worker considers that the contacts between X and her parents are very beneficial for her and by the past, those contacts were not organized as it should have been done. She recommends at least one weekly contacts. Regarding the contacts in person in Town C, currently it is impossible because of X’s fragile health and in Town A, it is necessary to be careful to prevent contamination between X and her siblings. [ 31 ] The mother testifies that she misses her daughter a lot. She is in Town A for two years now and the mother was able to travel to Town A only once.

This trip between Town C and Town A is not a direct one. When she arrived, she was authorized to see her daughter for only two hours. She is thankful for the foster parents who take care of her daughter, but at the same time, she is very sad to see the obstruction they make to prevent her from having contact with her daughter. She wants her daughter to be placed in another foster family, to foster parents who will answer the phone. Analysis [ 32 ] As admitted by the parties and sustained by the evidence, the situation of the child is endangered for neglect in terms of medical needs.

The Court wants to clarify the facts that the parents do not refuse that their child receive the medical attention she needs. They are in a very particular situation which prevents them from being able to accompany their daughter in Town A. [ 33 ] The child needs medical attention which is available only in a big city like Town A. The nursing in Town C is not equipped to answer her specific needs. The parents, on their side, have five children at home and only the mother works when she is not pregnant or on maternity leave. Also, their youngest child has specific health needs.

Despite all their willingness, it is impossible for those parents to give all the attention X needs without neglecting their other children. [ 34 ] The other option would be for the parents to move in Town A, but they do not like the life in a big city and it would force their other children to move far from their culture and extended family. It would be exaggerating to impose such moving to this family from Town C. [ 35 ] The child has to remain in a foster family in Town A to be able to benefit from all the services that she needs.

But unfortunately, it is very sad to see that she created bonds with a foster family who will not be able nor willing to continue fostering her. And knowing what she will have to go through in a near future, it is very disappointing not to be able to offer the stability she deserves. [ 36 ] When another foster family will be found, the evaluation of their commitment with X on all the aspects of her specific situation including her emotional needs will have to be seriously verified to be sure that the life plan answers the criteria established by the Court

of Appeal. [ 37 ] On the question of the accesses, the Court has the evidence that the contacts with the parents are beneficial for X. They miss each other which is totally normal. X lived almost five years in the community of Town C with her parents and her siblings. She developed bonds with them and it is understandable that she reacts when she sees them. According to

section 4 YPA, the contacts have to be favoured and the cultural bonds between the child and her community should be maintained. [ 38 ] The parents do not have to hesitate to communicate with their daughter, and they should feel at ease to do so. They do not have to feel disruptive when they call at the foster parents. They should feel welcome.

For this reason, the Court will encourage very frequent contacts between the child, her parents and her siblings, and to be sure that the parents initiate freely those contacts, the Court will specifically authorize two weekly contacts by video call and four contacts in person per year. [ 39 ] The time of those weekly contacts will have to be decided after discussion between the parents, the foster parents and the DYP worker. It would be convenient to organize this contacts every week at the same time, but if the parties prefer, it could be at a different time every week.

FOR THOSE REASONS, THE COURT: [ 40 ] GRANTS the application; [ 41 ] DECLARES that the security and development of the child X, born on [...], 2013, are endangered under

section 38 (b) (1) ii of the Youth Protection Act ; [ 42 ] ENTRUSTS the child to a foster family, chosen by the institution operating a child and youth protection centre; [ 43 ] ORDERS that the parents take an active

part in the implementation of any of the measures ordered by the Court; [ 44 ] ORDERS that the parents report in person, at regular intervals to the Director of Youth Protection to inform him of the current situation; [ 45 ] ORDERS that the child receive specific health care and services; [ 46 ] ORDERS that the parents be maintained informed of the medical situation of their daughter on a regular basis (minimally once a month), by the Youth Protection worker; [ 47 ] ORDERS that the child attend a school or another place of learning adapted to her specific needs; [ 48 ] ORDERS that the school be maintained aware of any specific needs relevant for X’s schooling; [ 49 ] AUTHORIZES frequent contacts between the parents and the child; [ 50 ] ORDERS that a minimum of two weekly contacts be organized by video call or at least by phone between the child and the parents; [ 51 ] AUTHORIZES four physical contacts per year to be organized after taking into consideration the medical appointments and the capacity of the parents; [ 52 ] ORDERS the Director of Youth Protection to organize the calendar of contact with the parents and the foster parents; [ 53 ] ORDERS that a person working for an institution or body, provide aid, counselling or assistance to the child, the family and the foster family; [ 54 ] ORDERS that a copy of the present decision be communicated to the Director of Youth Protection collaborator in the region of Montreal; [ 55 ] ORDERS any police force to collaborate with the execution of the Court order if requested to do so by the Director of Youth Protection or one of his representatives; [ 56 ] ENTRUSTS the situation of the child X , to the Director of Youth Protection A, who shall then see that the measures are carried out; [ 57 ] THE WHOLE until May 31, 2020. __________________________________ PEGGY WAROLIN , J.C.Q.

Me Adèle Cyr, attorney for the Director of Youth Protection Me Angèle Tommasel, attorney for the child Me Cassandra Neptune, attorney for the mother Date of hearing: May 19, 2020