2012 QCCQ 19078, 2012 QCCQ 19078

Protection de la jeunesse — 128182 2012 QCCQ 19078 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division NO: 640-41-001484-127 DATE: September 6, 2012 ______________________________________________________________________ BY THE HONOURABLE LUCILLE CHABOT, J.C.Q ______________________________________________________________________ [SOCIAL WORKER 1], youth protection worker duly authorized by the Director of Youth Protection of the A Board of Health and Social Services of A PETITIONER AND X Born on […], 2007 CHILD AND A MOTHER ______________________________________________________________________ JUDGMENT (Sections 38 and 91 of the Youth Protection Act ) ______________________________________________________________________ [ 1 ] The Director of Youth Protection submits a motion asking the court to declare the security and the development of X, four years old, endangered, pursuant to

section 38

d) of the Youth Protection Act , namely that she was the victim of sexual abuse. [ 2 ] At the hearing, the mother is present. In spite of the fact that she challenges the motion, she declines to be represented by counsel. M e Daniel Ouellette acts on behalf of the young child.

Because of the young age of the child, M e Ouellette declares that he will take position after having heard all of the evidence. [ 3 ] Were called as witnesses: − The mother, A; − The petitioner, [social worker 1]; − X's aunt, B; [ 4 ] Were filed as evidence: − The agreement on voluntary measures signed on May 26, 2012; − The undertaking signed by the mother's boyfriend, C dated June 7, 2012; − The social report signed by [social worker 1]; [ 5 ] On a balance of probabilities, the evidence reveals the following facts: [ 6 ] On March 24, 2012, X disclosed to one of her aunts that C, who is the mother's boyfriend, had touched her private parts and she added that it hurt. [ 7 ] The aunt asked B, another of X's aunts, to come and check on the child.

Mrs. B went to the washroom where X was. The child said that she was sore. She pulled her pants down and, pointing to her genital area, added that C touched her there. The aunt did not question X before the child made this revelation. Mrs. B met the mother and told her that she thought that C did something to X. The mother did not react. Mrs. B has never spoken to X again about this situation.

A few hours later, X was placed in a foster home under a provisional agreement signed by the mother. [ 8 ] On May 26, the mother signed an agreement on voluntary measures and the child remained placed in a foster family for a period of six months. [ 9 ] On June 7, the child was met for a video interview conducted by one of the investigators of the Sûreté du Québec.

[ 10 ] The child was left alone with the police officer. The applicant witnessed the interview from an adjacent room through a one- way mirror. At first, the child seemed composed, but when the police asked what happened to her, X started getting nervous. Whenever the subject of sexual abuse was raised, the child would point to the lower part of her body, cry, and call "mommy" again and again. The child went to the translator to be comforted and she calmed down. When the police asked X who did that, she answered "C" and cried again. [ 11 ] Mr.

C was arrested on June 7, 2012, and released with the condition: "Abstain from communicating with X (sic) ". [ 12 ] The mother never discussed the situation with the two aunts nor asked any questions to her boyfriend in March when the child was placed in foster family. Even since her boyfriend was arrested in June, she has never talked the subject of sexual abuse over with him. Cross-examined by the child's counsel, the mother states that even if C is found guilty, it won't change her mind. [ 13 ] The mother's explanation about the child's pain is that she needed a bath.

A nurse told her that it was caused by poor hygiene. [ 14 ] If the mother's contention can explain the soreness, it cannot in any way explain the words spoken by the child when she disclosed, pointing to her genital area, that C touched her. [ 15 ] Before Mrs. B and Mrs. [social worker 1] testified, the child's counsel asked the Court to declare that his young client was not competent to testify in court.

Everyone agreed with that motion and the Court made a ruling to this effect. [ 16 ] The declarations made by X to the aunt, to the police officer, and witnessed by the applicant, are admissible in evidence. [ 17 ] These declarations are preponderant evidence of sexual abuse, namely: − The words spoken by the child about having been touched on her genitals, declaration made to two different persons with a lapse of more than two months between the two declarations; − The fact that she added that it hurt; − The gestures made toward her genital area; − The fact that no one discussed the sexual abuse with her between March 27 and June 7, 2012 and, despite the two-month period that elapsed, that she maintained the same version when she was met by the Sûreté du Québec investigator; − The fact that before the police officer started talking about sexual abuse, she was calm and, abruptly, her mood totally changed when it came to sexual abuse; − She always identified the same person as her abuser; [ 18 ] The Court is also convinced that the mother doesn't want to find out the truth about what her child disclosed because it would endanger her conjugal situation.

The mother has a 20-month old child with Mr. C and will give birth to another at the beginning of January. [ 19 ] From the events of the last months, we can consider that the relationship between the mother and X is not a close one. Since X's placement, the mother has not communicated with the foster family nor has she cared to find out how X was doing. Mainly, it is the foster family who brought X to the store where the mother works in order for them to see each other. [ 20 ] The mother is still in a relationship with Mr. C.

She prioritizes her own needs over those of her child. [ 21 ] Because of the position she has taken in court, it is unlikely that the mother will bring her conjugal situation into question or that she will confront Mr. C about the whole situation. The only conclusion that can be reached is that the mother does not want to know what happened to her child. [ 22 ] For these reasons, she failed to take any steps to put an end to the situation. Moreover, because of her inaction, she cannot protect her child from her boyfriend.

After having heard the testimonies, the child's lawyer agrees with the petition and asks the Court to declare that the security and the development of X are endangered not only because she was a victim of sexual abuse but also because there is still a risk for her to be a victim of sexual abuse due to the position taken by the mother regarding her relationship with Mr. C. [ 23 ] Given the evidence, the Court concludes that the security and the development of X are endangered on both grounds (38 d) 1) and 38 d) 2) of the Youth Protection Act ).

APPLICABLE MEASURES: [ 24 ] The Director of Youth Protection asks that X be placed in a foster family for a period of one year. [ 25 ] The mother opposes this recommendation and requests that the child be returned to her custody. M e Ouellette, on behalf of X, is of the opinion that a one-year placement is the adequate measure to ensure the safety of the child. [ 26 ] X needs stability and protection. For the time being, the mother cannot protect her child properly. [ 27 ] In a short-term period, the mother will have to decide on both the appropriateness of continuing her relationship with Mr.

C and whether she is willing to prioritize her daughter. [ 28 ] Considering the position of the mother and her incapacity or unwillingness to confront her boyfriend, the Court prohibits her from putting the child in presence of Mr. C when exercising her access rights to X.

[ 29 ] The child has been living in the same foster family since the end of March. She is thriving and she is well adapted to this family where she receives all the attention, the stability and the security she deserves and needs. [ 30 ] For these reasons, the Court: [ 31 ] GRANTS the motion; [ 32 ] DECLARES that the security and the development of X, born on […], 2007, are endangered; [ 33 ] ORDERS the placement of X in a foster family for a period of one (1) year; [ 34 ] PROHIBITS the mother from putting the child X in contact with Mr.

C for a period of one (1) year; [ 35 ] ORDERS that aid, counsel, and assistance be provided to X and her family for a period of one (1) year; [ 36 ] ORDERS that X receive all health care and health services as well as a psychological assessment and follow-up if necessary; [ 37 ] Given the consent of the mother, the Court ORDERS the mother to collaborate with a psychological assessment and follow the recommendations of the professional; [ 38 ] ORDERS that the access rights with the mother be supervised by the Director of Youth Protection for a period of one (1) year as to the frequency and the modalities; [ 39 ] ORDERS the Director of Youth Protection to accommodate visitations rights with the mother at the grand-parents' place when they are in the community if it is an adequate place to receive the child; [ 40 ] ORDERS any police force to collaborate to the execution of the court order if requested to do so by the Director of Youth Protection or one of its representatives; [ 41 ] Entrusts the situation of X to the Director of Youth Protection for the purpose of the execution of the court orders. __________________________________ LUCILLE CHABOT, J.C.Q.

M e Marianne Gagnon-Bourget Lawyer for the petitioner M e Daniel Ouellette Lawyer for the child A Mother Date of hearing: August 23, 2012