2012 QCCQ 13675, 2012 QCCQ 13675

Protection de la jeunesse — 125831 2012 QCCQ 13675 JC0B11 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] LOCALITY OF […] Youth Court Division No: 760-41-003695-106 DATE: August 29, 2012 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X , born on [...], 2003 Child THE DIRECTOR OF YOUTH PROTECTION OF LE CENTRE JEUNESSE A Petitioner -and- A -and- B Parents of the child JUDGMENT ______________________________________________________________________

[ 1 ] The Court is seized of a motion for revision of a Court decision concerning the child X, born on [...], 2003. The Director of Youth Protection alleges that the security and the development of the child are still in danger, for the reasons detailed more amply in paragraph 4 of the motion. [ 2 ] The Director submits that a permanency plan must be ordered, considering that the child has been in foster care since June 2009, period that exceeds the maximum allotted in virtue of the Youth Protection Act .

Although there is recognition of the mother's efforts to deal with her personal difficulties and stabilize her situation, the Director submits that her history renders inconceivable an imminent return of the children. As to the father, he is chronically inconsistent as to his implication and the intervention. The Director submits that the Court must consider a permanency plan and therefore order the placement in foster care until majority. [ 3 ] The Director also requests that supervised contacts be maintained between the child and his parents.

As an additional measure, is also requested the partial withdrawal of parental authority, in favour of the foster family. [ 4 ] The father is absent, although duly served of the proceedings. The Court proceeds in his absence. [ 5 ] The parties present consign their positions as to the allegations of the motions in the Court record. They do not challenge that the security and the development of the child continue to be compromised. [ 6 ] The mother contests the permanency plan, her contacts and the partial withdrawal of her parental authority.

She suggests a period of placement for one year and the gradual increase of her contacts. [ 7 ] Considering her age, the child offers no specific mandate to her attorney, who wisely chooses to reserve her position as to the measures for the conclusion of the hearing. She then pleads that the bests interests of her clients justify the measures suggested by the Director of Youth Protection. [ 8 ] SECURITY AND DEVELOPMENT [ 9 ] The child and her uterine sibling, Y, are the subjects of voluntary measures and consecutive court judgments since June 2009.

Albeit a short period in 2011, they have resided with their maternal grandparents. In this milieu, the children are thriving and receive proper response to all their needs. [ 10 ] The mother has a long history of drug and alcohol abuse and instability. She admits struggling with substance abuse for the last 10 years. Her difficulties have been punctuated by periods of abstinence during which she is able to persevere in undertaking concrete steps to address her personal issues and particularly, be available for her children.

In the past, she has attended treatment programs three times and her longest period of abstinence is two years. [ 11 ] The father's personal situation also denotes a struggle with dependency, as well as anger issues. Conjugal violence was present in the parent's relationship. He has been absent from his scheduled supervised visits since March 2012 and is of unknown address. [ 12 ] The previous judgment pronounced by Justice Linda Despots on September 19, 2011, details the failure of a provisional attempt to reintegrate the children with their mother.

The mother's situation having improved dramatically, the parties agreed to entrust the children to her care in August 2011. The children are returned to the care of their grandparents approximately one month later, after having been transient and witness to their mother's drug and alcohol use. The mother recognizes having relapsed during this time. [ 13 ] The evidence demonstrates the recent steps undertaken by the mother to stabilize her personal situation.

More particularly, the Court notes the following: • The mother is abstinent since autumn 2011. • She is living independently in an apartment since February 2012. • Since May 2011, she attends 10 parenting classes offered by A Program (M-1).

Individual sessions are to be scheduled. • Following an Inpatient Treatment program completed on February 14, 2011, she undertakes a 12-week After A Program, which will be completed in August 2012. • A comprehensive mental health assessment is requested by the mother with the A Services, towards receiving services. • She maintains regular supervised visits with her children since November 2011. [ 14 ] The mother has recently given birth to a son, of whom she retains the care. [ 15 ] THE LAW [ 16 ] The Court cites the articles of the Youth Protection Act which constitute the legislative basis for its evaluation: 91.1.

If the tribunal orders a foster care measure under subparagraph j of the first paragraph of

section 91, the total period of the foster care may not exceed

(a) 12 months if the child is under two years of age on the date the order is made, (b) 18 months if the child is from two to five years of age on the date the order is made, or (c) 24 months if the child is six years of age or over on the date the order is made. When determining the duration of foster care, the tribunal must take into account the duration of any foster care measure applied to the same situation in an agreement on voluntary measures referred to in subparagraph j of the first paragraph of

section 54, as well as the duration of any prior foster care measure it ordered under the first paragraph. It may also take into account any prior period during which the child was placed or provided with foster care under this Act. If the security or development of the child is still in danger at the expiry of the periods specified in the first paragraph, the tribunal must make an order aimed at ensuring continuity of care, stable relationships and stable living conditions corresponding to the child's needs and age on a permanent basis.

However, the tribunal may disregard the periods specified in the first paragraph if it is expected that the child will be returned to his family in the short term, if the interest of the child requires it or for serious reasons, such as failure to provide the services agreed upon.

At any time during a period specified in the first paragraph, if the security or development of the child is still in danger, the tribunal may make an order aimed at ensuring continuity of care, stable relationships and stable living conditions corresponding to the child's needs and age on a permanent basis. [ 17 ] The notion of permanency as qualified by

article 91.1 of the Youth Protection Act has been the object of numerous judgments. The overriding principle remains the best interests of the child, which must be evaluated on a personalized basis. The Court is not bound to render an order to majority once the maximum provisional delays have expired, if such is not dictated by the children's best interests [1] . [ 18 ] ANALYSIS [ 19 ] Duration of Placement [ 20 ] The mother has made significant strides to ameliorate her situation, which is uncontested by the parties.

Notwithstanding, the evidence also demonstrates that she has cyclically progressed as to her addiction and stability, only to invariably return to her previous lifestyle. For this reason, the Court is unable to consider the mother's position of an additional provisional period of one year. Even should she maintain her progress for this period, it would be insufficient to permit the conclusion that the children would not be at further risk in her care, as she admits having previously been sober for a 2 year period.

The Court therefore considers that it is appropriate to render an order that will tend to stabilize them on a long-term basis. Remains to determine what is the appropriate term. [ 21 ] The Court is convinced of the mother's determination to stem the ebb and flow of her various issues, of which addiction remains the most arduous challenge. It cannot be disregarded that her main impetus is the reunification of her family, as well as the continued care of her newborn son.

She recognizes that a renewed regression will probably be fatal to her project. [ 22 ] The parties' respective positions each have merit and are reconcilable when considered within the global framework of the children's best interests. Although a return to the mother's care is not imminent or in a short delay, the Court is satisfied that there is sufficient progression to justify a median period of placement and stay an order until majority. [ 23 ] The children require stabilization on a long-term basis in their present milieu and to be shielded from their parent's respective personal difficulties.

Their interests also dictate that they continue to have an available and involved parent, which is the case for their mother presently. To discourage her efforts at this time would be counter-productive and possibly even detrimental to the continued stability of the children. [ 24 ] Consequently, the Court considers that a period of placement of three years reflects the precepts of the law and the best interests of the children.

This period will permit to verify the mother's evolution and more particularly, her ability to maintain her sobriety, acquire sustained stability, and be consistently available to her children. [ 25 ] This period will also permit the children to complete their primary school education in their present environment. [ 26 ] The Court also considers that at the end of this period, the children will be of an age to verbalize their position as to their future.

[ 27 ] Contacts [ 28 ] For the same reasons as noted above, the Court considers that the children's best interests dictate that the contacts with their mother remain supervised. The children must kept exempt from any possible degeneration or instability; at least until it can be reasonably considered that she is no longer at risk of returning to her previous lifestyle. [ 29 ] Furthermore, the contacts should evolve to reflect the progress the mother's situation and this, as to the degree, and perhaps an eventual withdrawal, of supervision.

The Court is confident that this orientation can be adequately administrated by mutual agreement of the parties and in default, by way of judicial revision. [ 30 ] The father's situation is presently unknown.

His contacts will remain under supervision and following agreement between the parties. [ 31 ] Parental Authority [ 32 ] As to the issue of the partial withdrawal of parental authority, the parent's situations being distinct, the Court will deal with each separately. [ 33 ] For the mother, the Petitioner submits that such an order is necessary as there have been difficulties to reach her in the past to obtain her consent or signature.

She further affirms that the mother is mostly available to them presently and that the previous events arose during periods of transience and instability, all of which occurred before the last judgment. [ 34 ] The mother admits that in September 2011, she refused to allow the children to accompany their grandparents to Florida. The Petitioner forwards that this was an inadequate decision, of which the surmised basis was to punish the children following their return to their grandparents care.

The evidence is not conclusive as to the mother's motivations and the Court cannot retain this situation as foundation for a partial withdrawal of parental authority on the myriad of issues requested by the Director. [ 35 ] Parental authority is the cornerstone of a parent's rights and obligations, and can only suffer being restricted when the evidence clearly demonstrates their inability or unwillingness to make decisions in the best interests of their children.

The withdrawal of parental authority, even partially, cannot be justified to simply facilitate the intervention or circumvent anticipated disputes. [ 36 ] In this case, the mother is present and available to make decisions of importance concerning her children. Should her specific decisions be contested within this framework, the Court is the forum available to the parties for resolution. [ 37 ] Notwithstanding, considering the mother's previous history, the Court makes provision to permit decisions in the event that she becomes unavailable.

As to vacation periods with the grandparents, the Court will deal with it specifically by granting two weeks of yearly vacation time. [ 38 ] The father being unavailable and non-cooperative, the Director's request is appropriate and reflects the child's best interests. [ 39 ] FOR ALL THESE REASONS, THE COURT: [ 40 ] GRANTS the motion; [ 41 ] DECLARES that the security and the development of the child X are still in danger; [ 42 ] REVISES AND EXTENDS the measures pronounced on September 19, 2011; [ 43 ] ORDERS that the child be entrusted to a foster family for a period of three years; [ 44 ] TAKES ACT that the foster family parents are the maternal grandparents; [ 45 ] ORDERS that the contacts between the child and the parents be determined following mutual agreement and in the presence of a third party designated by the Director of Youth Protection; [ 46 ] PERMITS the withdrawal of supervision as to the mother's contacts, by consent of the mother and the Director of Youth Protection, the whole in function of the evolution of her situation; [ 47 ] RECOMMENDS that the mother participate in mental health counselling; [ 48 ] WITHDRAWS certain attributes of the father's parental authority and authorizeS the foster parents to act on his behalf and in the best interest of the child, as to all decisions regarding schooling, medical purposes, travel within Canada, extra curricular activities, day camp or summer camp and passport. [ 49 ] ORDERS the mother to respond within 48 hours to individual requests concerning issues pertaining to the child's schooling, medical purposes, travel within Canada, extra curricular activities, day camp or summer camp and passport. [ 50 ] IN DEFAULT OF SUCH: [ 51 ] WITHDRAWS certain attributes of the mother's parental authority and authorizeS the foster parents to act on her behalf and in the best interest of the child, as to specific decisions regarding schooling, medical purposes, travel within Canada, extra curricular activities, day camp or summer camp and passport. [ 52 ] AUTHORIZES the grand-parents two weeks of vacation with the child per year, consecutive or not, without the necessity of obtaining consent from the mother and conditional to her being advised of the details of the vacation, at least 30 days in advance;

[ 53 ] RECOMMENDS that the mother and the grandparents participate in family counselling; [ 54 ] ORDERS that aid, counsel and assistance be provided to the child and her family for the duration of the measures; [ 55 ] ENTRUSTS the situation of the child to the Director of Youth Protection of the Centre Jeunesse A for the execution of the measures. __________________________________ BEATRICE CLEMENT, J.C.Q. Me Caterine Caron Attorney for the Petitioner Me Michel Robert Attorney for the mother Me Maryse Fournier Attorney for the child Date of hearing: June 8, 2012