2018 QCCQ 18093, 2018 QCCQ 18093

Protection de la jeunesse — 1811486 2018 QCCQ 18093 JO0374 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] Youth Division No: 525-41-030938-161 DATE : November 29, 2018 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE KAREN OHAYON, J.C.Q. ______________________________________________________________________ IN THE CASE OF: X Born on [...], 2009 Director of Youth Protection A Applicant A Father B Mother ______________________________________________________________________ JUDGMENT (Section 95, Y.P.A.) ______________________________________________________________________ WARNING: Within the framework of the Youth Protection Act, no person may publish or broadcast information allowing 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 (Y.P.A. sections 11.2.2 and 135). [ 1 ] The Director of Youth Protection (the Director) is asking the Court to extend the order rendered on June 15, 2016, declaring the security and development of the child X endangered and entrusting her to a confidential foster family with a social follow-up and other corrective measures for a period of eight months. [ 2 ] The Director submits that the mother’s situation is relatively unchanged.

She continues to deny the state of endangerment and offers very little cooperation to youth protection services. Although the father maintains regular contact with his daughter, his mental health issues prevent him from assuming any parental responsibilities.

Meanwhile, the child has adjusted well to her current setting and is receiving all the services that she requires for her special needs. [ 3 ] Consequently, the Director is recommending that the child remain in the care of her current foster home with specific health services and a social follow-up for another six months. [ 4 ] The mother is of the opinion that nothing justifies the continuation of her child’s placement or the intervention of youth protection. She argues that she is a good mother and that the child has always progressed adequately under her care.

She likens the youth protection workers to mafia and considers that their intervention is prejudicial to her daughter’s welfare. [ 5 ] The father agrees that the mother is a capable parent and best suited to care for their daughter. He considers the placement unjustified and mistrusts the Director’s intentions. Although he briefly considered asking that the child be entrusted to him, he now agrees that his mental health issues make it impossible. [ 6 ] The child’s lawyer is of the opinion that the evidence justifies the extension of the order.

He further considers that the Director’s recommendation is in the child’s interests. He adds, however, that the evidence reveals an unfortunate lack of cooperation between youth protection services and the CLSC that offers the mother support services. He submits that the child’s interest requires that both organizations work in conjunction in the hope of better assisting the mother.

The Situation [ 7 ] The presentation of the evidence required eight days and was spread out over a period of 18 months for various reasons, namely, an inaccurate assessment of the time required to complete the hearing, unforeseen delays in securing an expert report, a change of position by the father implicating a request for a further delay as well as the inherent difficulties related to availability and agendas.

[ 8 ] Over this period of time, the child has remained in her foster family and the delays provided for in

section 91.1 of the Youth Protection Act (the Act) have since expired. By the end of the hearing, the Director nevertheless maintained her request for a six month order, essentially citing procedural fairness. On the other hand, she clearly states that her intention is to submit a permanent plan at the expiration of this delay. [ 9 ] From the evidence presented, the court retains the following:

A) The Mother : (

i) Regarding the state of endangerment: [ 10 ] The evidence as a whole shows little change in the mother’s situation. She continues to perceive [Center A] services with suspicion and animosity. For example, she considers that the social worker in charge of the application of measures is a liar and an intimidator with violent tendencies [1] .

She further submits that her daughter is a victim of sexual abuse and exploitation within her foster home [2] . [ 11 ] It should be immediately noted that none of these accusations find any support in the evidence presented. [ 12 ] The unfortunate impact of the mother’s state of mind is her lack of cooperation with youth protection services. For the most part, she has refused to attend most social follow-up meetings or to effectively participate in elaborating an intervention plan. When she does attend a meeting, most of her time is spent in confrontation with the social worker.

Her opposition and resistance to the services proposed are persistent and unconstructive. Her hostility towards the social worker, whom she accuses of sabotaging her relationship with her daughter, continually intensifies. [ 13 ] Of note, the mother’s cross-examination of the social worker was centered almost exclusively on establishing her alleged lack of professionalism, bias, incompetency and bad faith, without success however. [ 14 ] This attitude obstructs the progression of the intervention on many levels.

For example, the social worker’s attempts to assess the mother’s home for the purpose of home visits have been unsuccessful. Despite being informed that these visits can only be implemented following a positive assessment of the home, the mother effectively refuses access by failing to provide availability. Accordingly, no home visits have been authorized despite the mother’s repeated requests to that effect. [ 15 ] The mother’s interaction with other professionals who work in cooperation with [Center A] services is also difficult.

Visits with the child are supervised in part by the community based agency [Center B]. The staff reports that the mother is regularly argumentative, contesting policies and rules applicable to all parents. [ 16 ] Ultimately, the mother is of the opinion that the youth protection intervention is entirely unjustified. She considers that she is an excellent mother, that she has nothing to work on or to change and that she is fully capable of providing the care that her daughter requires, without assistance.

It should be noted that the mother has consistently refused to participate in a parental capacity assessment. [ 17 ] The mother maintains that the child’s progress while in placement is comparable to the progress that was observed while in her care. She further questions the relevance of her daughter attending School A, considering that (in her opinion) she was progressing just as well in a regular school with “ normal people ” [3] . [ 18 ] This perception demonstrates that the mother’s understanding of her daughter’s needs remains flawed.

On the contrary, a comparison with the state of the situation at the time of the initial order establishes that the child has progressed remarkably well as a direct result of the services implemented at the social worker’s direction. [ 19 ] Furthermore, it has already been determined that the child’s development stagnated while at her previous establishment, School B [4] . There is no foundation for the mother’s assertion that the child was doing well in the regular program. Her belief to that effect represents a serious risk that she would prioritise a change of school if the decision were hers to make.

Such a situation would in fact cause serious prejudice to the child who is flourishing in her current environment. [ 20 ] The tragedy of this situation is that the mother truly loves her daughter and wants what is best for her. Unfortunately, her state of mind prevents her from assessing the situation realistically.

Her belief that her parenting skills are adequate, that her daughter develops well in her care, that her daughter can handle a regular academic curriculum are all indicators that she continues to present a risk to the child’s development. (ii) Contact with the child: [ 21 ] The mother has benefitted from regular supervised visits with the child. There has been lengthy testimony solicited by the mother regarding cancelled visits as an indication of the Director’s bad faith.

Without repeating all the details and explanations provided, the Court rejects the mother’s pretentions for the following reasons: [ 22 ] It is to be expected that schedules may require adjustments at times, sometimes with sufficient notice, sometimes at the last minute and for a multitude of reasons. Snow storms, illnesses, transport problems are just some examples. The mother’s lack of cooperation has also been a contributing factor. [ 23 ] As a whole, the evidence shows that for the most part, the changes made to the visiting

schedule by the social worker were reasonable and justified. When possible, attempts were made to notify the mother who is notoriously difficult to reach. Furthermore,

offers to replace cancelled dates or extend visiting hours to compensate were sometimes met with a refusal by the mother. [ 24 ] The testimony of multiple witnesses called on the Director’s behalf confirms the notion that the mother can be excessively rigid and has difficulty adjusting to change. Modifications made to the

schedule cause the mother to react with suspicion and hyper-vigilance, fuelling her belief in the social worker’s bad faith. [ 25 ] As far as the visits go, the bond between the daughter and her mother is undeniable. Their time together is spent mostly playing which the child undoubtedly enjoys. [ 26 ] Although it has been suggested to the mother to assume a more parental role, such as helping with homework, she refuses to do so because she considers they have very little time together.

For the same reason, she fails to adhere to advice given to her for the purpose of encouraging her daughter’s autonomy and independence. [ 27 ] For example, the mother has been informed that her daughter is capable of removing her coat and boots by herself and putting them away properly. Yet, the mother quickly takes over these tasks to save time despite the importance of letting the child accomplish them herself. [ 28 ] It has also been observed by those who supervise the visits that the mother remains anxious in public. Persuading her to take the child outdoors on mild days can be a struggle.

Of more concern is the fact that the mother tends to project her anxiety onto the child. [ 29 ] The mother’s insistence on restricting the visits to playtime also limits the development of her own parental capacities. The numerous attempts by various educators to assist her on that level have been unsuccessful. The mother’s difficulties implementing structure or discipline have not evolved despite the passage of time.

It is observed that the child frequently takes on the role of parent, directing her mother and imposing her wishes. [ 30 ] Although the visits overall are positive and contribute to maintaining the bond between mother and daughter, there is simply no identifiable progress as far as the mother’s parental capacities are concerned.

Her refusal to adhere to the advice offered by the educators or to participate in a concrete plan designed to assist her are significant hurdles that shows no signs of diminishing. (iii) The CLSC : [ 31 ] The mother has secured services from the CLSC that offer her support in the context of the youth protection intervention. Essentially, the professionals involved accompany her throughout the process and help her communicate more effectively with [Center A] services and their partners.

They further seek to ensure that her rights are respected as she navigates through all the procedures, meetings and protocols. [ 32 ] At their suggestion, the mother agreed to a psychological assessment to determine whether she suffered from Autism Spectrum Disorder. (ASD) That assessment was conducted by psychologist Christian Savard and the conclusion was positive, although the mother refutes his diagnosis. [ 33 ] In the course of his testimony [5] , the psychologist describes the characteristics generally associated with ASD. [ 34 ] He defines the first category of “social reciprocity” as the capacity to give and to receive in a social context.

In this category he explains that a person with ASD: - is inclined to be more rigid - has difficulty “reading” the intention of the person with whom he is interacting; - has difficulty trusting from the outset. [ 35 ] Regarding the second category of “communication”, a person with ASD has difficulty dissecting nuances and double meanings. Consequently, misunderstandings are not uncommon, leading to more rigidity or an escalation of the situation. [ 36 ] The third category is “repetitive behaviour”.

The psychologist explains that a person with ASD does not necessarily understand that such behaviour is inappropriate. [ 37 ] Essentially, the psychologist is of the opinion that the mother’s difficulties fall into these categories, although he considers that they are more subtle than most. On the other hand, this subtlety increases the likelihood of misinterpreting her behaviour, thereby leading to a power struggle.

He is of the opinion that social services can be trained to facilitate their interaction with the mother in order to avoid conflict. [ 38 ] The diagnosis of ASD is in fact compatible with the evidence of the mother’s difficulties and explains her inability to adjust her behaviour or her level of cooperation. [ 39 ] Regarding the services received from the CLSC workers [Social Worker A] and [Social Worker B], the Court understands the benefit of their involvement for the mother who feels supported by them. Both workers testify that different tools can be utilized to facilitate interactions with the mother.

They have made efforts to impart their techniques to youth protection workers, with varying degrees of success. [ 40 ] One aspect of their intervention is troubling however. Without a full understanding of the child’s situation, they tend to reinforce the mother’s belief that she is capable of adequately caring for her daughter at this time. Their testimony is centered on the mother’s rights and the adjustments that others should make to accommodate her. This one-sided effort disregards the risks for the child as already established by the evidence as a whole.

Although they are certainly in good faith, their opinion undermines the concept that the child’s interest is to be prioritized. Their intervention must be conducted with a measure of caution so as not to overstep the bounds.

The mother’s parental capacities are a serious issue that should not be dismissed so lightly.

B) The father : [ 41 ] The father continues to suffer from serious mental health issues but remained relatively stable until the spring of 2018. During that time, he benefited from regular contact with his daughter in a supervised setting. The grandfather always accompanied him and participated in these visits as well. [ 42 ] It has been observed that the father is mostly a passive participant. The grandfather generally takes the lead in talking or playing with the child who responds well.

Although it had been proposed to extend visits or to discontinue supervision, both the father and the grandfather were satisfied with the status quo. [ 43 ] Unexpectedly however, the father made the choice to cease taking his medication, leading to unpredictable behaviour. [ 44 ] On May 14, 2018, a disturbing incident occurred in the presence of the child. When the social worker arrived to pick the child up from a visit with the father, the father charged the caseworker, screaming that she could not leave with the child.

He placed the child behind him and physically prevented her from attempting to reach the worker. Hoping to de-escalate the situation, the worker offered to wait outside while the child and the father said their good-byes. However, the father locked the door and from the outside, the worker could hear the child screaming. [ 45 ] The paternal grandfather opened the door and let the worker back in. The child struggled against her father’s hold, demanding to leave but to no avail. He maintained his grip on her and continued screaming at the worker.

The grandfather attempted to intervene with his son but without success. [ 46 ] The police were called and it was only with their intervention, twenty-five minutes later, that the child was extracted from her father’s grip and allowed to return to the foster home. [ 47 ] Since then, the father has refused to see the social worker, for whom he expresses resentment and distrust.

There has been no contact with his daughter who was understandably distraught following the event. [ 48 ] On the other hand, the father has resumed psychiatric services and agrees to waive confidentiality of his medical file to the benefit of youth protection services in order to resume visits with his daughter. At this time however, he is not willing to resume communication with the social worker directly and this, for an undetermined period of time.

Consequently, he is not in a position to exercise his parental authority and measures must be taken to ensure that the child’s needs are met. [ 49 ] All parties agree that the events of May 14, 2018 are serious and need to be treated as such. In order to consider resuming contact, there must to be a proper understanding and assessment of the father’s mental health and stability. The court encourages him to follow the recommendations of the treating professionals. Furthermore, in his daughter’s interest, the court invites him to consider collaborating with the case worker.

Not doing so impedes all progress with respect to his role as a parent. [ 50 ] In the meantime, the grandfather sees the child on a regular basis in accordance with a

schedule agreed upon with the social worker. He describes the child as healthy and happy during the visits. The social worker confirms that there are no difficulties in organizing the visits with the grandfather and this aspect is in no way contentious. Consequently, no specific conclusion is required.

C) The child : [ 51 ] The child has flourished since the initial judgment was rendered. She now speaks in complete sentences and can fully participate in a conversation. She has progressed remarkably well academically and has been promoted to an advanced class. [ 52 ] Considering her progress, services from Miriam Home are no longer required although they have kept her file open if needed.

At Summit School, she receives services from: - A behavioural technician; - A social worker; - An educator; - An occupational therapist; - A speech therapist; - A physiotherapist; - A specialized teacher. [ 53 ] The school is also in close contact with the foster family who implements the strategies proposed to encourage her academic progress as well as the development of her daily living skills and autonomy. [ 54 ] The child has gradually developed a significant bond with the foster family and she has adjusted extremely well to their structure and routine.

Conclusion [ 55 ] Although her progress is significant, the child continues to require specialized services for her proper development. [ 56 ] The evidence demonstrates that the mother persists in refuting her role in the child’s state of endangerment. Moreover, she is of the opinion that she has nothing to change in her manner of raising her daughter. Her testimony serves to reinforce the Director’s position that there has been little progress in her situation. [ 57 ] The mother’s testimony confirms her lack of cooperation and mistrust of youth protection services.

She is particularly hostile towards the social worker and remains firm in her position that the worker acts in bad faith. [ 58 ] Consequently, the mother lacks insight into her own role in this unfortunate situation. Her assessment of her parental abilities is unsound and fails to take into account her past history with the child.

Her unwarranted hostility towards the caseworker, her conviction that she is a victim of a conspiracy, her unwavering belief that the child is abused and exploited at the foster home in the absence of any such evidence, all hinder her progress. [ 59 ] The Court agrees with the child’s lawyer that an alignment between youth protection services and the services offered at the CLSC may offer some assistance in breaking what is essentially an impasse. Such a solution nevertheless requires a degree of cooperation from the mother, something that is not presently forthcoming.

Moreover, as already mentioned, the opposing points of view between the two services can aggravate the situation if they are unable to find a middle ground.

The Court invites them to make a sustained effort at working together. [ 60 ] The Court concludes that the Director has established that the measures proposed are in the child’s best interest. [ 61 ] FOR THESE REASONS, [ 62 ] THE COURT, [ 63 ] GRANTS the motion; [ 64 ] DECLARES that the security and development of the child continues to be endangered as a result on negligence and the risk of negligence and as well as psychological ill-treatment; [ 65 ] ORDERS that the child remain in confidential foster home; [ 66 ] ORDERS that the frequency and modality of contact between the father and the child be determined by the Director after a consultation with the father’s treating psychiatrist and TAKES JUDICIAL NOTICE that the father authorizes the Director to consult his medical file; [ 67 ] ORDERS that the frequency and modality of contacts between the mother and the child be determined by the DYP, including supervision if deemed necessary and ORDERS a minimum frequency of two visits per week; [ 68 ] WITHDRAWS from the parents the exercise of certain parental attributes namely in regards to medical and health services, travel, passport and education and GRANTS them to the Director; [ 69 ] ORDERS that the child receive specific health care services as required by her situation, namely but not limited to, speech therapy and services for autism spectrum disorder; [ 70 ] RECOMMENDS a psychiatric assessment of the mother; [ 71 ] ORDERS that a person working for a Child and Youth Protection Centre provide aid, counsel and assistance to the child and her family; [ 72 ] ENTRUSTS the situation of the child, X, to the Director of Youth Protection A, who shall then see that the measures are carried out; [ 73 ] THE WHOLE for a period of six months.

SIGNED IN CITY A On November 29, 2018 __________________________________ KAREN OHAYON, J.C.Q. Me Marie-Josée Paiement Attorney for the D.Y.P. Me Jean-H ervé Thomas Attorney for the child

Me Michel Ferland Attorney for the father Dates of hearing: May 18 + 22, November 30 and December 5, 6 + 7, 2017; April 24 + 25 and November 13, 2018. KO/lf