2020 QCCQ 12768, 2020 QCCQ 12768

Protection de la jeunesse — 209337 2020 QCCQ 12768 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT […] TOWN […] Youth Division No: 640-41-001897-153 DATE: April 15, 2020 (written judgment rendered on November 16, 2020) ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X , born on [...], 2003 [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 A, district A (Quebec) ______________________________________________________________________ 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 revise a decision rendered on April 15, 2019, regarding the adolescent X, born on [...], 2003.

At that date the Court declared the security and development still endangered and entrusts her to a rehabilitation centre, recommending the Town A’s with a possible reintegration in a foster family in Town A as soon as the situation allows it, until April 30, 2020. [ 2 ] The DYP submits that the situation does not allow to return the youth to Mr. B and recommends entrusting her to a rehabilitation centre with a gradual reintegration in a foster family as soon as the situation allows it, for a period of one year. Position of the parties [ 3 ] Mr. B is present and represented by Me Villemur.

He ignores most of the allegations, and he agrees with the recommendations. [ 4 ] X, who is now 17, is present and represented by Me Neptune. She admits most of the allegations, and she agrees to remain in a rehabilitation centre, but prefers to be in Montreal instead of Town B. After, she wishes to go with C as a foster family.

Historical situation [ 5 ] The Court reproduces the history of the situation as it was drawn by the undersigned in the previous decision. [ 6 ] On March 3, 2015 , an emergency hearing was held and the Court entrusted X to the foster family of D and E (aunt and uncle). [ 7 ] On March 19, 2015 , the Court was seized with another emergency hearing and entrusted X and her brother to a foster family. [ 8 ] On May 7, 2015 , the Court heard the application for protection. X was 12 years old. The mother passed away in January 2011.

After the death of the mother, the grandmother took care of her until September 2014, when she also passed away. After X and her brother were moved from one family member to another one, but no one was reliable enough. Finally, they went to live with an aunt, Ms. F, in Town B. The aunt was hesitant about a long-term involvement with the children, but she accepted. Mr. B hopes to have a new house soon and to be able to have the children back with him. The children developed some attachment problems.

The Court declares that the security and development of the child are endangered and entrusted her to a foster family until the end of January 2016. [ 9 ] On December 9, 2015 , the Court revised the decision. After being with a foster family in Town B, who decided not to continue, the children were entrusted with Ms. G, an aunt who also gave up. They were entrusted to a cousin for two nights, but it became necessary to separate X and Y. X was entrusted to a foster family in Town A and Y went back with G, in another community. Mr. B reduced his alcohol consumption, but always accepted consumers in his place.

After a few behavioural issues and threats and after being entrusted to a rehabilitation centre, X is doing better. The Court entrusted her to a foster family until August 17, 2016.

[ 10 ] On January 13, 2016 , the situation of X was getting worse and the Court was seized with an emergency measure. As she was nowhere to be found, the Court order a warrant under

section 35.2 YPA. [ 11 ] On January 19, 2016 , X had been found and brought to the Group Home, but she ran away. The Court entrusted her to a rehabilitation centre. [ 12 ] On March 17, 2016 , the Court noted that it had been necessary to entrusted X to a Group Home because, since December 2015, she ran away many times, she displayed suicidal ideation and self-mutilation. During her running away, Mr. B was aware that the DYP was looking for her, but he helped her to hide from the workers.

The Court entrusted her to a rehabilitation centre until August 17, 2016. [ 13 ] On July 20, 2016 , X underwent to a psychological assessment. Because she had a very aggressive behaviour, the child psychiatrist, who follows her since the death of her mother (January 2011), asked to investigate for a potential ADHD and FASD. The rehabilitation centre also noted that the schooling was very difficult even if it is offered in the centre. The psychologist indicated that her face let think that she could suffer from a FASD and Mr.

B, who was also met, reminds that the mother was drinking a lot during the pregnancy and after the birth. X started walking when she was between 2 and 3 years old and she started speaking when she was between 4 and 5 years old. The psychologist concluded that she is in the mild range of intellectual disability and cognitive potential with signs of ADHD for which she does not have medication. He highly recommended a neuropsychological assessment in conjunction with a referral to Dr.

Kent Saylor, pediatric specialist in FASD at Montreal Children’s hospital. [ 14 ] On August 17, 2016 , the situation of X was revised. She was at the rehabilitation centre since January 2016. Her behaviour improves a lot, but she still needs rehabilitation services. Mr. B continued to reduce his alcohol consumption and had a stable job. He still needs to work to improve his parental skills. The Court entrusted X to a rehabilitation centre until [...], 2017. [ 15 ] On March 3, 2017 , the Court noted a recent improvement in her behaviour. The evidence also showed that X had a strong character.

During the month of January 2017, she ran away and stayed at her aunt’s place, Ms. E. Mr. B was still not able yet to have her back at home. The Court entrusted her to her aunt, E until January 28, 2018. [ 16 ] In July 2017 , as X was entrusted to her aunt with her brother, the DYP was informed that the aunt had alcohol consumption issues. X ran away for one week in July 2017. On August 1, 2017, she was found and entrusted to a foster family in Town B, but she did not respect the rules.

Between August 1, 2017, and September 20, 2017, she was entrusted to three different foster families. [ 17 ] On September 20, 2017 , the Court was seized with an emergency hearing and entrusted X to a rehabilitation centre and recommended that she would be entrusted in the Group Home of Town A. She ran away two hours after her arrival. She was suspected of stealing some food at the grocery store. She was found by the police only on November 11, 2017, while she was intoxicated.

As she revealed being raped, she was brought to the nursing, but ran away upon her arrival at the nursing. [ 18 ] On November 16, 2017 , she was found and entrusted to the Group Home in Town A. The Court was seized with the application for revision, entrusted X to a rehabilitation centre until the end of November 2018, and authorized the reintegration in a foster family in June 2018, if the situation allows it. [ 19 ] On November 21, 2018 , the undersigned was seized with an application for revision. X was still at the Group Home in Town A. Mr. B went a few times to see her, and it went very well.

She also came for home visits and she did very well. Doing so, and considering her behaviour did not request any more rehabilitation services, the DYP wished to start a progressive reintegration in a foster family in Town A, but X was very confused regarding the place she would like to live, being unable to project herself in the future. She liked being in Town A, but no foster families were available there, and in those circumstances, she would prefer to stay at the Group Home.

The evidence also revealed that X met with the child psychiatrist a few times, but the DYP ignored if she was evaluated for ADHD, nor for FASD by a neuropsychiatrist as it was highly recommended in 2016. [ 20 ] To allow the DYP to find the appropriate foster family, the Court maintained X to the Group Home with integration in a foster family as soon as possible. The Court also ordered that a FASD evaluation and a psychological evaluation be performed within two months. [ 21 ] On April 15, 2019 , the Court revised the situation. Since the last decision, X stayed at the Group Home in Town A.

She started working at the grocery store, went to school and performed very well. She still had difficulties to manage her emotions and made crisis sometimes, but generally she was doing very well at the Group Home. She frequently changed her mind regarding the place where she would like to live. The DYP is still looking for a foster family. X was assessed by Dr. Beltempo, psychologist. He concluded that she suffers from “ underlying attachment issues as well as possible attentional and impulsive traits.

She has an underlying depression — in particular dysthymia probably stemming from the separation and loss of her Grandmother with whom she lived with from 6 to 11 years old.” He recommended Progressive Muscle Relaxation, to reduce the alcohol and drug use, to address and be more patient to work within limits of her learning abilities at school, neuropsychological assessment in order to identify her academic strengths and weaknesses as well as whether these deficits may be related to Fetal Alcohol Spectrum Disorder (FASD). X was assessed by the neuropsychologist who notes the same characteristic as Dr.

Beltempo and notes that the FASD evaluation should have been done for many years. As Dr. Beltempo, she concludes to a persistent depressive disorder and a language disorder, but the dia-gnosis of intellectual disability was not retained.

The neuropsychologist recommended: • Organising an appointment with a medical doctor specialised in FASD; • Helping X find a psychologist or a counsellor she trusts to work on her attachment issues, her depressed affects and her emotional regulation; • Encouraging her to use different relaxation techniques, other than alcohol and drugs, to decrease her anxiety and her insomnia; • Helping X in her academic pursuit by supporting her motivation for school, encouraging her to be more patient in the process and working within the limits of her learning abilities;

• Implementing an individualized Educational Plan (IEP) in school so that she could benefit from all the adaptations that are usually put into place for students suffering from a learning disability; • Adaptation of her to work in a quiet place, separate her tasks into smaller parts and avoid giving her too many instructions; • Considering she wishes to become an educator, it would be important for her to meet with a guidance counsellor to think about her future career and the upcoming academic years. It will be important to help her to find a program that leads to a job that will make her happy.

This process could help her to stay motivated in school. The request was made for the FASD evaluation, but it was difficult to make an appointment. The pressure will be maintained to have it done shortly. The Court maintained the youth to a rehabilitation centre, authorized a reintegration in a foster family, ordered that the FASD evaluation be performed, ordered that she meet with a psychologist or a counsellor for her issues, ordered that the recommendations of the psychologist and the neuropsychologist be implemented, the whole until April 30, 2020.

Facts [ 22 ] X remained at the Group Home in Town A until November 2019. After that, she was transferred to the Group Home in Town B. The transfer was requested because of her bad behaviours and negative influence on the other youths. [ 23 ] Also, still in August 2019, she started to forge her teacher’s signature, to skip school and to skip work. [ 24 ] She started running away in August 2019, for a few hours each time, but on September 19, 2019, she left and the police officers brought her back on November 22, 2019, four months later.

During this period, she came close to the Group Home to invite other youths to consume, and she broke and enter in the centre while everyone was outside for activities. She came to have a shower and to take back her belongings. When she went back with the police, she was aggressive, intoxicated, disorganized and injured. [ 25 ] The DYP was informed about this running away 21 days after, when the Group Home staff sent a message saying that because of X’s running away, it will be necessary to transfer her in a more secure unit.

The DYP worker ignores why the DYP was not informed before and she also ignores what was done after being aware, except that no warrant was asked. [ 26 ] According to the DYP, since her integration in A Group Home, despite some remaining issues such as disturbing when she does not have positive answer to her requests, she made great improvement. Surprisingly, X doesn’t have the same opinion. [ 27 ] She is not going to school, but works part-time at the Town A daycare. [ 28 ] Regarding her psychological follow-up, the DYP made requests to the CLSC and X was put on a waiting list.

But the DYP was informed on September 9, that it could take one year. Once transferred in Town A, the priority was to stabilize X in her new environment. [ 29 ] At the moment of writing the revision report dated on March 31, 2020, the DYP made verification with the CLSC and learned that X was not more eligible to receive services from Town A as she was no longer living there. Doing so, the DYP worker plans to make the same request at the CLSC of Town A and to verify if a psychologist is available there.

At the same moment, the DYP worker also read the previous decision and doing so, realized that the psychological follow-up was a Court order. [ 30 ] The Court questioned the DYP worker about the steps made while X was in Town A to make sure that she could receive the service without waiting one year, considering this service has been ordered by the Court.

At that moment, the current DYP worker was not assigned to the file, but she confirms that the previous worker filed the form requested by the CLSC and followed the steps imposed by the Social Services procedure, but no other pressure was put. [ 31 ] In 2018 and 2019, X requested to be assessed for a potential FASD. This evaluation was recommended twice by Dr. Beltempo and was also ordered by the Court.

The DYP worker testifies that three requests were made (December 2018, May 2019 and August 2019) but, according to her knowledge, the DYP never received any answer from the specialist. [ 32 ] The DYP worker explains that after August 2019, as X’s behaviour degenerated, the priority was not to assess her for a potential FASD, but was to stabilize her in her new environment. Again, while writing her revision report, she asked the intake worker at the CLSC to reiterate the request for FASD evaluation. [ 33 ] For a while, X had a boyfriend living in Town A at his mother’s place.

X went there in January 2020, and everything went well. X asked to be authorized to live there. Another home visit took place in March, but this visit did not go well. X and her boyfriend fought together and the mother refused to foster X. Moreover, a few days later, the DYP was informed about serious gesture of violence on X from her boyfriend. Analysis [ 34 ] Obviously, X’s situation remains endangered. [ 35 ] In 2018, the undersigned rendered a decision and noted, at that time that X did not receive the services she was supposed to and she was suffering a lot.

Six months later, the undersigned revised again the situation and underlined the intensity of service provided this time by the former DYP worker, Ms. [social worker 2] to make sure that X could finally receive the medical services she needed. [ 36 ] Thanks to those steps taken by Ms. [social worker 2], X benefitted from a second psychological evaluation which confirmed the necessity to obtain a FASD evaluation.

The psychologist also insisted on X’s important potential saying that it was not too late to address the issues, but it becomes very urgent that she receive the services with the proper intensity. [ 37 ] After one year, we have no other choice than to conclude that those recommendded services were not provided as nothing was

done to make sure that she could receive it. [ 38 ] In the South, the Tribunal declares that the rights of children are wronged when children do not receive the medical service within delay of five, six and seven months. X is waiting since 2016. We are not speaking about months in this situation.

We are speaking about years. [ 39 ] X will turn 18 years old soon and as too many Inuk children she will become an adult without having receive the adequate services and it will be much more difficult for her to receive services. [ 40 ] When the DYP concludes that the situation and development of a child are endangered and the Court confirms this declaration, the situation of the child is entrusted to the DYP for the execution of the decision.

The purpose of the services to be rendered is to put an end to the situation in which the child is in danger and to make sure that such situation will not reoccur. [ 41 ] This objective, prescribe by

section 2.3

a) YPA, is the same everywhere in the province of Quebec. [ 42 ] Moreover, as prescribe by

section 92 YPA, to reach this objective, the health organization has to facilitate the DYP to access the appropriate services. Refusing to take steps to obtain the service, or neglecting to obtain the services constitute an encroachment of rights prescribed at

section 8 YPA. [ 43 ] As Justice Bédard wrote in 2000 [1] : […] la mesure ordonnée peut, avant de recevoir application, nécessiter un délai lié à l’organisation des services, mais ce délai ne doit pas être de nature à rendre la mesure ordonnée sans effet. Ni équivaloir à faire en sorte que le jugement du Tribunal soit sans effet. En somme, un délai d’exécution auquel peut s’apparenter un outrage au Tribunal. [ 44 ] Speaking about

section 92 YPA, Justice Bédard mentions: 30 Sauf appel ou révision de la décision, il s’agit d’une responsabilité qui entraîne une obligation de résultat. […] [ 45 ] Finally, Justice Bédard insists on the fact that children followed by DYP are entitled to receive services more urgently than other children who are not followed by the DYP: 32 Autrement dit, le citoyen dont la situation n’est pas prise en charge par l’État, le citoyen dont la situation n’est pas judiciarisée peut fort bien requérir un suivi psychologique et devoir attendre. Si ce citoyen considère que le délai d’attente est trop long, il peut loger une plainte selon la procédure prévue à la

Loi sur les services de santé et services sociaux . 33 Mais un enfant dont la situation sociale amène une intervention de la Directrice de la protection, des mesures d’urgence, une judiciarisation, une déclaration de compromission et une décision du Tribunal qui comprend des mesures pour corriger la situation, ne peut certainement pas se retrouver sur un pied d’égalité, par exemple, avec un enfant dont la situation n’a jamais été signalée à la directrice. 34 Penser le contraire reviendrait à affirmer qu’il n’y a aucune différence de traitement entre une situation de compromission et une situation qui ne l’est pas. 35 Se poserait alors la question de la pertinence de signaler une situation, si aucune différence ne peut être perçue dans le traitement. [ 46 ] The Court shares this position which was also shared recently by Justice Dutilly [2] . [ 47 ] The Court is very disappointed to see that we render decisions for revision after decisions for revision, and nothing changes. [ 48 ] In 2019, the evidence showed that X had dreams for her future.

This time, the Court heard nothing about those dreams. The Court only heard about runaway for many weeks, not attending school despite her potential, attempt to entrust her in a foster family without success and violence against her. [ 49 ] The Court clearly expressed at this hearing that this time, the services will have to be rendered properly as recommended by the specialist, as ordered by the Court and, moreover, as requested by X herself.

FOR THOSE REASONS, THE COURT: [ 50 ] GRANTS the application; [ 51 ] DECLARES that the security and development of youth X, born on [...], 2003, are still endangered; [ 52 ] DECLARES that the rights of X were wronged by the Director of Youth Protection under

section 2.3, 8 and 92 of the Youth Protection Act ; [ 53 ] ORDER that the youth be entrusted to an institution operating a rehabilitation centre, chosen by the institution operating a child and youth protection centre; [ 54 ] ORDER that the youth be gradually integrated in a foster family as soon as the situation allows it; [ 55 ] ORDER that the modalities, the frequency and the degree of supervision of the contacts between the youth and the interested party be determined by the Director of Youth Protection;

[ 56 ] ORDER that the interested party report periodically to the Director of Youth Protection on the measures he applies in his own regard or in the youth’s regard to put an end to the situation in which the security and development of the youth are in danger; [ 57 ] ORDER that the youth and the interested party take an active

part in the application of any of the measures ordered by the Court; [ 58 ] ORDER that the youth and the interested party report in person, at regular intervals, to the Director of Youth Protection to inform him of the current situation; [ 59 ] ORDER that the interested party remain sober and without any violent behaviour in the presence of the youth; [ 60 ] RECOMMEND that the interested party seek help through the Social Services concerning his personal issues; [ 61 ] ORDER that a person working for an institution or body, provide aid, counselling or assistance to the youth and her family; [ 62 ] ENTRUSTS the situation of the youth X , to the Director of Youth Protection of the A C.Y.P.C., who shall then see that the measures are carried out; [ 63 ] ORDERS the police to collaborate to the execution of the enactment; [ 64 ] THE WHOLE until [...], 2021.

AS CORRECTIVE MEASURES: [ 65 ] ORDERS that X met with a doctor specialized in FASD to confirm or disprove the diagnosis of FASD, without any delay; [ 66 ] AUTHORIZES this professional to have access to Dr. Beltempo’s evaluation, Dr.

Amira Amane’s evaluation and to the entire medical and schooling files of X; [ 67 ] ORDERS that all recommendations set out by the professional are followed including any other evaluation he or she could suggest; [ 68 ] ORDERS that X benefit from a follow-up with a psychologist or a counsellor she trusts, to work on her attachment issues, her depressed affects, her emotional regulation and her learning difficulties on a weekly basis for one hour of Psychotherapy; [ 69 ] AUTORIZES the psychologist or the counsellor to have access to a copy of Dr. Beltempo’s evaluation and Dr.

Amira Amane’s evaluation; [ 70 ] ORDERS that all the recommendations set out by Dr. Beltempo and Dr. Amane be followed without any delay; [ 71 ] ORDERS that the psychological evaluation, the neuro-psychological assessment and the conclusions are explained to X; [ 72 ] ORDERS that a copy of the present decision be notified to Commission des droits de la personne et des droits de la jeunesse and to the Commission Laurent; [ 73 ] ORDERS that a censored copy be notified to the Director of the Régie régionale de la santé et des services sociaux A. __________________________________ PEGGY WAROLIN , J.C.Q.

Me Adèle Cyr, attorney for the Director of Youth Protection Me Cassandra Neptune, attorney for the youth Me Éliane Villemur, attorney for the interested party Date of hearing: April 15, 2020