r v. DIRECTOR OF YOUTH PROTECTION, 2011 QCCA 1488

Unofficial English Translation Adoption — 11228 2011 QCCA 1488 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-08-000368-110 and 500-08-000369-118 (755-43-000363-084) DATE: AUGUST 15, 2011 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. JACQUES A. LÉGER, J.A. NICHOLAS KASIRER, J.A. A APPELLANT (500-08-000368-110) – father and B APPELLANT (500-08-000369-118) – mother v.

DIRECTOR OF YOUTH PROTECTION OF THE CENTRE JEUNESSE DE LA MONTÉRÉGIE RESPONDENT – applicant and COMMISSION DES DROITS DE LA PERSONNE ET DE LA JEUNESSE RESPONDENT – impleaded party JUDGMENT [ 1 ] The appellants appeal from a judgment of the Court of Quebec, Youth Division, District of Iberville (the Honourable Judge Mireille Allaire), rendered on December 23, 2010, which declared their child eligible for adoption; [ 2 ] For the reasons of Kasirer, J.A., with which Chamberland and Léger, JJ.A. agree: [ 3 ] DISMISSES the appeal, without costs. JACQUES CHAMBERLAND, J.A. JACQUES A. LÉGER, J.A. NICHOLAS KASIRER, J.A.

Mtre Sandra Fontaine BLANCHETTE ET ASSOCIÉS For the appellant - father Mtre Patrick Cormier For the appellant - mother Mtre Lise Barbusci CENTRE JEUNESSE DE LA MONTÉRÉGIE For the respondent - applicant

Mtre Serge Lavallée For the child Date of hearing: July 6, 2011 REASONS OF KASIRER, J.A. [ 4 ] The appellants appeal from a judgment of the Court of Quebec, Youth Division, District of Iberville (the Honourable Judge Mireille Allaire) rendered on December 23, 2010, which declared their child eligible for adoption. [ 5 ] Ruling in accordance with article 559(2) CCQ , the judge was of the opinion that the mother and father did not in fact take in hand the care, maintenance, and education of the child X for at least six months preceding service of the motion for a declaration of eligibility of adoption. At the conclusion of her analysis under

article 561 CCQ , the judge ruled that it was unlikely that X’s parents would resume custody and take in hand his care, maintenance, and education. Further to her assessment of the evidence, she found that it was in the child’s interest to declare him eligible for adoption. [ 6 ] The parents challenge all three aspects of the judge’s decision. They seek to have the trial judgment set aside and to have the application for a declaration of eligibility for adoption dismissed. Facts [ 7 ] A and B are the parents of X, born on ..., 2006. They have been in a relationship for some years. Mr.

A was incarcerated at the time of X’s birth, after having been convicted of assault with a weapon. He had previously served several long-term prison sentences for various offences, including conspiracy to commit murder and the use of explosives, and he was for a long time part of a criminal motorcycle gang. Ms. B has had drug problems since adolescence. She has two older children, Y and Z, from a previous relationship.

These children were placed in foster care until the age of majority following a complaint initially lodged by their maternal grandmother, who was concerned by her daughter’s drug problem and the degree of violence in her life. Ms. B speaks to her two children occasionally by telephone, but at the time of the trial, she no longer saw them. [ 8 ] Finally, Ms. B and Mr. A have another child, A, born on ..., 2008. I will address this later. [ 9 ] At birth, X showed signs of withdrawal and was declared to be positive for amphetamines by the hospital staff. Ms. B admitted having used drugs shortly before giving birth.

At the hospital, it was observed that Ms. B was not sufficiently attentive to the newborn’s needs. A report that the security and development of X were in danger was filed with the Director of Youth Protection of the Centre jeunesse de la Montérégie (the “DYP”), who then took charge of him. [ 10 ] X remained in the hospital for six days after his birth, and on November 21, 2006, he was placed in temporary foster care. On March 14, 2007, the DYP decided to place the child in a permanent foster home (previously called a mixed-bank foster home), despite his parents’ objections.

X was placed in a new foster home on April 25, 2007, where he remains to this day. The child has never lived with his parents. The only contact he has with them is during hour-long supervised visits held at the DYP offices, initially once every two weeks, and then once a month. [ 11 ] In the weeks following X’s birth, Ms. B entered a drug-treatment program, at the DYP’s suggestion, but was unsuccessful. She eventually completed a 28-day program, although the authorities of the treatment centre were critical of her behaviour. She then attended follow-up sessions. In March of 2007, Mr.

A was released from prison and soon after obtained the right to visit his son. [ 12 ] On September 10, 2007, Anne-Marie Jacques J. ordered that X be placed in foster care for six months. [1] She ruled that the security and development of the child were in danger within the meaning of

section 38 of the Youth Protection Act . [2] The judge was harsh toward the parents, concluding that they had not demonstrated their ability to take responsibility for themselves as adults, highlighting their inability to take responsibility for their 10-month old child. The judge also ordered the parents to participate in measures designed to resolve the situation that caused the security and development of their child to be endangered, specifically in Ms. B’s case, to continue her drug-treatment sessions and submit to drug tests.

She indicated that it would be necessary to consider a life plan for X if his parents’ situation remained the same over the next six months, but made no order in this regard. She preferred to fix the duration of the order at only six months in order to give the parents [ translation] “one last chance to quickly get organized”. [3] [ 13 ] On October 31, 2007, the DYP prepared an intervention plan with the parents in view of having X return to live with them.

The plan set out a series of objectives that the parents would have to achieve, including more open cooperation with the DYP, greater diligence with respect to attending supervised visits, drug-treatment follow-up sessions for the mother, and an improvement of their living conditions. [ 14 ] The Court order and the intervention plan did not have the desired effect. On February 20, 2008, the caseworker responsible for X’s file met with the parents in order to revise the intervention plan.

The meeting proved difficult, in particular because of the parents’ refusal to accept the caseworker’s assessment of the situation. The parents did not sign the revised plan. [ 15 ] As of February of 2008, the DYP began to consider X’s eligibility for adoption in view of the parents’ lack of involvement and openness, as well as the child’s attachment to his foster family. The parents were informed of this. [ 16 ] On June 10, 2008, Jacques J. granted a motion to extend the September 10, 2007 order. She noted that the development and

security of the child were still in danger, extended the order that X remain in foster care for one year, and indicated that the objective was now to establish a life plan for him. [4] The judge ruled that the parents still did not acknowledge the reasons why their child’s security and development were found to be in danger. [5] After three years of intervention with the mother and over a year with the father, their personal situations had not improved.

The parents’ problems with drugs and involvement in criminal activity were not resolved, and their lifestyle remained an obstacle to X’s reintegration into his family environment. [6] [ 17 ] Following this order, the DYP reduced the frequency of the supervised visits. From then on they took place only once a month, still for one hour, at the DYP offices. [ 18 ] As of this time, the parents, particularly the mother, were present for almost all of the supervised visits, whereas previously they had attended them only sporadically. [ 19 ] On ..., 2008, the mother gave birth to A.

The child was in good health and the drug tests administered on him came back negative. He was nevertheless the subject of a report to the DYP as soon as he was born, because of his parents’ [ translation] “history”; there was [ translation ] “a serious risk of negligence (mother’s drug problem, father’s instability)”. An assessment report was prepared on December 4, 2008, by M. [caseworker 1] of the Centre jeunesse de la Montérégie. The investigation revealed that the parents’ overall situation had improved.

It was nevertheless recommended that the status quo be maintained in view of the mother’s history of drug abuse and the instability of both parents. Considering the parents’ progress, however, the caseworker concluded that [ translation ] “we are thus directing A’s situation towards a minimal final intervention”. On January 27, 2009, M [caseworker 1] recommended closing A’s file since [ translation ] “Mr. A and Ms. B have demonstrated, over the course of our intervention, that they are capable of maintaining a regimented lifestyle corresponding to their son’s needs”.

A’s file was then closed, even though, at trial, caseworker 1 indicated having concerns for the child because of his parents’ past. [ 20 ] From the time A was born, his mother brought him to almost all of the supervised visits, even though the caseworker advised her that she should focus exclusively on X during the visits.

X now knows his younger brother, but he remains generally aloof from him. [ 21 ] On November 19, 2008, two months before A’s file was closed, the DYP served the parents with the motion to institute proceedings seeking a declaration that X be judicially declared eligible for adoption. [ 22 ] In May of 2009, Daniel Fortier conducted a psychological assessment of the mother, on her request. In his report dated September 27, 2009, the expert noted that Ms.

B has difficulty demonstrating introspection, is impulsive, has a tendency to favour her own needs at the expense of others’, and that she sometimes embellishes reality, hindering her full rehabilitation. He concluded that she remains at risk to relapse into drug use and criminal activity. He acknowledged, however, that she has made efforts to improve, but he did not think that these efforts were sufficient to justify X’s return to his parents in the short run. Analysis [ 23 ] The Court must answer three questions in its analysis of this appeal: 1.

Did the trial judge err in ruling that the parents did not take in hand the care, maintenance, and education of the child during the six months preceding service of the motion for a declaration of eligibility of adoption (559(2) CCQ )? 2. Did the trial judge err in ruling that the parents did not rebut the presumption that it was unlikely that they would resume custody of the child and take in hand his care, maintenance, and education (561 CCQ )? 3. Did the trial judge err in ruling that the declaration of eligibility for adoption was in the child’s best interest? * * * 1.

Did the parents take in hand the care, maintenance, and education of the child during the six months preceding service of the motion? [ 24 ] The trial judge ruled that the parents did not take in hand X’s care, maintenance, and education during the six months preceding service of the motion to institute proceedings, i.e., from May 19, 2008 to November 19, 2008 (para [144] of the judgment a quo). [7]

[ 25 ] Ms. B and Mr. A claim that the judge erred in her assessment of the care that they provided to the child during the critical period. They assert that the protective measures regarding X since his birth significantly reduced their contact with the child.

The parents argue that in view of the restrictions that were placed on them, the Court should conclude that they properly respected their obligations in regard to X during the period at issue under article 559(2) CCQ . [ 26 ] Did the judge err in the application of article 559(2) CCQ ? [ 27 ] When a child is placed in foster care and it consequently becomes difficult for a significant emotional bond to form with his or her parents, the judge must consider the following non-exhaustive factors in the analysis under article 559(2) CCQ : the parents’ attitude towards the social intervention and level of cooperation with the various caseworkers; their attitude during, and punctuality for, supervised visits; the seriousness of the measures taken to correct the problems that initially resulted in the placement; and examples of maintenance, care, and education offered to the child. [8] [ 28 ] The analysis of the parents’ conduct must be objective, considered from the child’s perspective, and must not take into account the possible reasons justifying the parents’ deficiencies. [9] [ 29 ] In the present case, the judge correctly set out the relevant factors for this analysis (para [123]), and in my view, the appellants have not established any error in her assessment of the evidence that would justify the intervention of this Court .

They did not present any supported examples of care, maintenance, or education offered by them that the judge failed to take into account, even if we consider the restrictions placed on their relationship with X. [ 30 ] The parents’ attitude in regard to the DYP’s intervention varied over time, depending, for example, on the identity of the caseworker. Nevertheless, certain patterns emerge. The judge noted a significant lack of openness and cooperation from the parents, in particular with respect to their drug use and their budget (paras [129], [131], [139]).

The parents regularly failed to attend the pre- and post-visits organized by the caseworkers. Moreover, the mother often failed to undergo the drug testing set up by the DYP, despite her undertaking to do so (para [131]). [ 31 ] In the judge’s opinion, the parents were not always diligent in regard to the supervised visits, especially between February and June of 2008, while they were living in City A.

The judge was of the opinion that their move to [City A] did not justify their absences, nor did she accept the parents’ explanation that they were unable to exercise their visitation rights due to financial considerations (paras [135-136]). It is true that the mother attended almost all subsequent visits during the latter portion of the critical period and that the father was rarely absent.

Although these visits generally went well, the caseworkers nevertheless had some criticism in regard to the mother, who, at times tended to favour her own gratification over that of the child, for example by taking too many photos or making him cry for no reason. [ 32 ] With respect to the parents’ efforts to correct the problems that caused the child’s security and development to be in danger, the assessment is mixed. The mother participated in a drug-treatment program and attended several follow-up sessions.

She relapsed, however, in December of 2007, and refused to undergo a psychological assessment until May of 2009. The father generally refused the help offered to him by the DYP. Both parents also refused or neglected to participate in job-search and budgeting workshops (para [131]). Finally, the police were called to intervene at the parents’ home under nebulous circumstances, although no charges were laid. It was established, however, that the parents appeared in court in May of 2008 to answer charges of possession of illegal substances and theft.

The judge concluded that, overall, [ translation ] “neither of the parents ever acknowledged the grounds causing the child’s security and development to be in danger nor the soundness of the protective measures” (para [132]). [ 33 ] The appellants blame the DYP for all of their parental deficiencies, alleging that its intervention caused X to become distant from his parents, justifying their conduct. It is worth repeating that the DYP’s interventions were circumscribed by the decisions of Jacques, J., which the parents did not appeal.

Moreover, the present case is distinguishable from Adoption-09158 , [10] which the parents invoke in support of their argument. In the present case, the DYP’s intervention was justified by the lifestyle adopted by the parents and the impact of their conduct on the child’s life.

The appellants did not establish that this intervention had the effect of unduly distancing them from their child, as was the case in Adoption-09158 . [11] Moreover, the trial judge noted that the DYP consistently encouraged the parents to regain control of their lives, even after their child was placed in the mixed-bank foster home (para [142]), contrary to the situation in Adoption-09158 . [12] The DYP’s intervention does not appear to justify the parental deficiencies in this case. The appellants have not, therefore, demonstrated that the judge erred in her assessment of the evidence in this regard. 2.

Did the parents rebut the presumption that it was unlikely that they would resume custody of the child and take in hand his care, maintenance, and education? [ 34 ] This is the heart of the matter. [ 35 ] The appellants argue that they regained control over their lives in the fall of 2008 and that their conduct since then justifies the reversal of the presumption set out at

article 561 CCQ. Their situation improved significantly, they say, as of A’s birth in October of 2008. They assert that the judge neglected to consider the evidence in this regard and did not sufficiently take into consideration the appellants’ parenting abilities as demonstrated by the care they have been providing to A, X’s younger brother. [ 36 ] The analysis of the probability or improbability that the parents will resume custody must be conducted in relation to both the situation of the parents and that of the child.

The Court must therefore assess the parents’ ability to offer what the child needs, on the one hand, and the child’s ability to receive what the parents can offer, on the other. [13] The second stage of the analysis is concerned with the parents’ conduct on the whole, both before service of the proceedings and afterwards. [14] Above all else, this exercise must be performed from the child’s perspective. [ 37 ] In order to establish their ability to offer, the parents must demonstrate that they now possess sufficient personal, material, and psychological resources to satisfy the emotional and material needs of their child. [15] The evidence must be analyzed from the perspective of the child at issue, not that of other children. [16] The parents must convince the judge that they can, in the short run, offer a stable life environment to the child.

[ 38 ] The analysis of the child’s ability to receive requires consideration of several factors, including the duration of the parents’ absence from the child’s life, the child’s reactions to his or her parents, and the relationship that has developed between the child and his or her foster family. [17] We must be careful, however, not to compare the parents of origin to the foster parents. [18] [ 39 ] The evidence indicates that the parents’ situation did indeed improve as of the summer of 2008. [ 40 ] Did the judge err in omitting to highlight this improvement in her reasons respecting this stage of the analysis? [ 41 ] It is true that the parents live in suitable housing and that their relationship appears stable.

The mother has apparently stopped taking drugs. It would seem that the father no longer maintain ties with criminal gangs. He took a training course to improve his parenting skills in the winter of 2009. Moreover, the grandmother’s testimony revealed that she plays a role in the lives of the mother and the children, including Z and Y, who have been placed in foster care until they reach the age of majority. [ 42 ] It cannot be said, however, that the trial judge did not take these improvements in the parents’ lifestyle into consideration.

She summarized the evidence presented by the parents in detail before beginning her analysis. She considered, among other things, the favourable testimonies of caseworker 1 (at para [73] et seq .) and Ms. B’s mother (at para [105] et seq ). [ 43 ] The judge explained, however, that the parents’ situation is far from being irreproachable. She criticized the father’s failure to attend the visits on a regular basis (para [134]) and, as in the case of the mother, his refusal to acknowledge the soundness of the grounds upon which the child’s security and development were found to be in danger (para [132]).

With respect to the mother, as the judge clearly noted in her reasons, the psychologist Mr. Fortier was of the opinion that Ms. B has not definitively solved her problems and that she still has emotional problems, favouring her own needs over those of others. The judge cited Mr. Fortier’s report and noted that he was of the opinion that she remains at risk of relapsing into drug use and a marginal or troubled lifestyle (paras [102-103]). In accordance with this assessment, the judge accepted that the changes in the mother’s life were not based on thorough self-questioning (para [150]).

The fact that she no longer attends the planned visits with her two other children placed in foster care, as a form of protest against the DYP’s intervention, tends to confirm the psychologist’s prognosis. [ 44 ] On the whole, the judge had doubts in regard to the parents’ sincerity in their interactions with X. She stated that [ translation ] “their conduct in no way exemplifies their words, quite the contrary” (para [152]). Once again, the appellants did not attenuate the judge’s conclusion to the point of justifying this Court’s intervention in regard to the presumption set out at

article 561 CCQ. [ 45 ] Did the judge err in not giving more weight to the fact that the parents are adequately caring for their son A? [ 46 ] The parents assert that they have demonstrated that they are adequately taking in hand the care, maintenance, and education of X’s younger brother, with which the DYP agrees, such that it would be wrong to conclude that it is unlikely that they will resume custody of X. As I noted above, A was the subject of a DYP report from the time of his birth because of his parents’ history.

In January of 2009, after inquiry and follow up, the DYP decided to close its file since the parents appeared to be sufficiently responding to their son’s needs. Moreover, between the closing of A’s file in January of 2009 and the judgment of the Court of Quebec in regard to X in December of 2010, the parents were not subject to any DYP measures. [ 47 ] Supporting the arguments put forth by the parents on this point, the child’s attorney is of the view that the judge’s treatment of the evidence concerning A was incomplete.

He sees a contradiction in the fact that, at the same time, or almost, the DYP ended its initial intervention in regard to A, and filed its motion for a declaration of eligibility for adoption in regard to X. The decision to apply for adoption was thus taken, according to the attorney, without considering the improvements in parenting abilities noted in A’s file. [ 48 ] Examining the trial judgment carefully, it cannot be said that the judge ignored or unduly minimized A’s situation in the analysis of the parents’ parenting abilities in regard to X.

She provided a detailed account of the testimonies of caseworker 1 and the grandmother on this point. She considered the parents’ testimonies, according to which their parenting abilities are confirmed by their experience with A and the fact that the DYP closed its file in his regard. Moreover, the judge raised the important nuance that the caseworker who assessed A’s situation informed the parents of his concerns in regard to A in view of their history, as she noted in her judgment (para [82]).

With respect for the contrary opinion, I do not see any error in the assessment of the evidence concerning A that would justify the intervention of this Court. [ 49 ] Parenting abilities demonstrated in regard to a particular child are not necessarily an indication of parenting abilities in regard to another child.

Case law has established that the ability of the child involved in the motion to receive what the parents can offer is as essential as the parents’ abilities assessed in the abstract. [19] In a leading case on this aspect of the analysis, the Court stated that [ translation ] “as prepared as the parent may be to offer , the parent will only be able to assume responsibility if the child is able to effectively receive ”. [20] This exercise must be conducted in respect to X, whose situation is different than that of A, even though they have the same parents. [ 50 ] In her arguments on appeal, Ms.

B acknowledges that [ translation ] “the situation of each child is unique and turns on its own facts”. X, born in ... 2006, has never lived with his parents. He has been in foster care since birth and has been living with his current foster family since April 2007. On the other hand, A, who is two years younger, has always lived with his parents. Their situation is not the same.

After setting out, on several occasions, various aspects of A’s situation, the judge concluded that [ translation ] “the fact that the parents have taken in hand the care and maintenance of their youngest child is not a guarantee that they will be able to take in hand the care, maintenance, and education of X, and, more importantly, that it is in his best interest that they do so” (para [148]).

There is no error in this assertion. [ 51 ] Moreover, the arguments of the appellants and the child’s attorney do not sufficiently consider X’s perspective in terms of his ability to receive what his parents claim to have to offer him, nor the differences between the two children. [ 52 ] The trial judge noted that [ translation ] “despite the parents’ displays of affection, X is gradually becoming more reserved in their regard and at times refuses physical contact with them” (para [61]).

She also mentioned that on at least one occasion, X sought refuge in the arms of a caseworker instead of going to see his mother (para [62]). In his testimony at trial, caseworker 2 stated,

[ translation ] “I have never seen, since the beginning of my involvement in this case, any display of affection initiated by baby X towards his parents”. X’s reactions raised a doubt in the judge’s mind as to his ability to receive the affection that his parents have to offer him (para [153]).

Once again, the parents did not succeed in challenging this conclusion. [ 53 ] It is also necessary to consider the bonds that have formed between X and his foster family in order to assess whether resuming contact with his parents of origin is in his best interest. [21] In her statement of the evidence, the judge accepted the testimony of a caseworker that [ translation] “ the child, for his part, has lived in foster care since birth and with the same family since April 30, 2007.

He is developing and growing in a warm environment, has formed significant emotional bonds, which provide him with a sense of security, with the members of the foster family, who are ready to accommodate him long term and even adopt him” (para [66]). X has been living with this family for over four years and has had only sporadic contact with the appellants during supervised visits. The passage of time, a crucial factor in a child’s life, [22] has reinforced the bonds between X and his foster family, while weakening those connecting him to his parents.

On this issue, the trial judge concluded that [ translation ] “breaking this bond with ‘ his [foster] family ’ would cause him serious harm and would be contrary to his best interest” (para [151]) [italics in original]. It cannot be said that the judge was mistaken in concluding that breaking the bond between X and his foster family would cause him harm. [ 54 ] Considering X’s point of view, as is required, [23] we note that the parents have not discharged their burden of proving that resuming his custody would meet his needs. The judge did not therefore err on this second step. 3.

Did the trial judge err in concluding that the declaration of eligibility for adoption was in his best interest? [ 55 ] The trial judge was of the opinion that [ translation ] “it is in X Lavigne’s best interest to be declared eligible for adoption” (para [154]). [ 56 ] The parents argue that the emotional bond between X and the foster family is not a sufficient reason to declare the child eligible for adoption to the detriment of the bond with the appellants. This, however, is not the meaning that should be ascribed to the trial judgment.

For the judge, the emotional bond with the foster family was an [ translation ] “important factor to consider” (para [151]), but it was not the sole basis of her judgment.

The judge, who had the advantage of hearing the evidence and the arguments of the parties, conducted an overall assessment of the best interests of X, and the appellants did not establish that she committed an error in the exercise of her discretionary power at this stage. [ 57 ] The attorney for the child asserted in his oral argument that the declaration of eligibility for adoption is contrary to X’s best interest because it would have the effect of [ translation ] “uprooting” the child from his natural environment. Adoption, once ordered, clearly has this effect.

We cannot maintain, however, in the absence of any error by the judge and on the sole basis of an assertion of the interest of the child, that the substitution of the filiation of origin by the effect of a possible adoption is sufficient to dismiss the application for eligibility for adoption. * * * [ 58 ] I would dismiss the appeal, without costs. NICHOLAS KASIRER, J.A.