2019 QCCQ 14839, 2019 QCCQ 14839

Protection de la jeunesse — 1911148 2019 QCCQ 14839 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT […] TOWN […] Youth Division No: 640-41-002131-172 DATE: November 21, 2019 (written judgment rendered on January 23, 2020) ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X , born on [...], 2008 [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, residing and domiciled at […] in Town A, district A (Quebec) [...] Mother and B , deceased Father ______________________________________________________________________ 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 extend a decision rendered on July 25, 2018, regarding the child X, born on [...], 2008. At that date the Court declared the security and development still endangered and entrusted the child to a foster family, namely Ms. C, until July 12, 2019. [ 2 ] The DYP submits that the situation does not allow to return the child to his mother and suggests that he remains with Ms. C, until he reaches the age of majority.

Position of the parties [ 3 ] The mother is present and represented by Me Tommasel. She recognizes that the security and development of her child are still endangered, and she agrees with the measures. [ 4 ] X is present and represented by Me Migué. He recognizes that his security and development are still endangered and he agrees with the measures. History of the situation [ 5 ] On November 21, 2017 , the situation of X was submitted to the Court. He was 9 years old. His father was deceased. His mother suffered from schizophrenia which affected her parental capacities.

The mother did not respect her medical prescription. The situation of X and his older brother was known from the DYP since April 2014. Voluntary measures had been signed and since that time, the children were entrusted to a foster family. X was entrusted to many different foster families since the beginning of the DYP involvement (around two years). He was at that time with Ms. C and he was doing well. The mothers had irregular contacts with her son.

The Court declared that the security and development of X were endangered [1] and entrusted him to a foster family until July 25, 2018, with the help of an external educator. [ 6 ] On July 25, 2018 , the Court was seized with the revision and ratified a draft agreement. X improved his behaviour at school. He stayed at Ms. C, and he was still doing well. The Court entrusted him to Ms.

C until July 12, 2019. [ 7 ] On July 12, 2019 , because of the weather conditions, the family was not able to travel and the Court maintained the measures under a provisional order. [ 8 ] On September 9, 2019 , because X was hospitalized in Town B following an accident with a firearm, the file was postponed and X was maintained in a foster family. Facts

[ 9 ] Since the last order and until recently, X stayed at Ms. C. The beginning of his school year (2018-2019) was difficult because of his aggressive behaviour, but the situation improved a lot and no more intervention is needed on this aspect. [ 10 ] X appreciated the C’s family a lot. He was there since November 15, 2017. Before that, he was transferred 21 times. He was stabilized well at the C’s family, which brought the DYP to request firstly a majority placement. [ 11 ] Unfortunately, on August 14, 2019, a very sad accident occurred. X, after coming back home from hunting with Ms.

C’s spouse, was in the shack to store the firearms, but he made a bad manipulation and he shoots himself in the head. After being medevaced to Town A, he was transferred to Town B. He received surgery and stayed hospitalized more than two months. He was unable to move nor to speak, but after the surgery, he recovered very well and in November, when the Court proceeds, he was back in his village and was doing very well.

Despite the regular medical follow-up he will have for the rest of his life, as for now, no sequels are noted. [ 12 ] Once he was able to speak, he was seen by a child psychiatrist as the accident was considered as a suicidal attempt. X ensured that it was not in his intention and the medical staff confirmed that he had no worrisome behaviours nor ideation. [ 13 ] The mother did not go to Town B to see her son despite the facts that the DYP offered her to pay all her expenses. Moreover, since the last order, she was mostly absent of her children’s lives, and was very difficult to be reached by the DYP.

When the DYP worker goes to her place, the house always appears abandoned. She still consumes drugs such as marijuana, weed and crack and she still has mental health issues. [ 14 ] The C’s family stayed close to him in Town B during the whole hospitalization. Just before X been back following his discharge, the DYP realized that the C’s family was evaluated, but not accredited as a foster family. [ 15 ] The DYP worker explains the difference between the two processes. When a foster family is evaluated , only the main caregiver is evaluated which means that in this situation, only Ms. C went through the process.

When a foster family is accredited that it means that all the family members of 18 years old and more are evaluated including their criminal records. [ 16 ] Doing so, the DYP who requested at that time a majority placement, decided to proceed with the whole evaluation and looked at Mr. D’s priors. The DYP learned that Mr. D was founded guilty of sexual contacts on a minor-aged of less than 16 years old in 2010, and he was also guilty of sexual exploitation on a youth aged in between 16 to 18 years old in 2015. [ 17 ] Dr.

Beltempo, the psychologist who was supposed to meet with X, was informed of this situation and of the necessity to remove X from the C’s family. After his meeting with X, he told the DYP representative to be very careful during the transfer because the risk that X feels rejected from the C’s or guilty, was very high. [ 18 ] Considering this recommendation, the DYP worker was questioned about X’s reaction when he was made aware of this decision. The DYP worker was not present at that time because she was on vacation, and the other worker present did not take notes.

When she came back from her vacation, she did not ask questions to her colleagues to know what is happened. [ 19 ] X was entrusted to Ms. C’s daughter, Ms. E in the same village with a prohibition to be alone with Mr. D. Ms. E is not accredited as a foster family.

The DYP worker only know that her criminal record has been checked, but she ignores if the criminal records of the other adult living in her house have been checked, as she was not present during the transfer and she did not make verification before her testimony. [ 20 ] This hearing bring the Court to realize that the DYP created two different status of foster families: the evaluated ones and the accredited ones. This distinction does not exist in the YPA. The

section 91 YPA, which establishes the different measures the Court could order stipulates what follows: 91. Where the tribunal concludes that the security or development of the child is in danger, it may, for the period it determines, order the implementation of one or more of the following measures: […] (

e) that the child be entrusted to other persons; (e.1) that the child be entrusted to a kinship foster family chosen by the institution operating a child and youth protection centre; […] (

j) that the child be entrusted to an institution operating a rehabilitation centre or to a foster family, chosen by the institution operating a child and youth protection centre; [ 21 ] According to the law, a child could be entrusted to a significant person or a foster family. To be a “foster family” strict conditions have to be respected. There is not an intermediary notion of a “foster family.” When the Court entrusted children to a foster family, the Court cannot imagine that the child will be entrusted to a total foster family or maybe to a partial foster family.

Doing so, as soon as the beginning of the placement, the decision from the Court, who applied the law in which no partial foster family exists, was not respected. [ 22 ] As all the measures the Court can order, the placement in foster family is a tool to complete a given objective established by the law: the end of the endangerment. [ 23 ] Moreover, the law establishes the maximum period of placement at

section 91.1 which recognized the importance for a child to gain stability and to protect the bonds he positively created with his caregivers. The evidence is obvious that after being transferred many times, X finally had the chance to find a safe, loving and caring place to live: the house of the C’s family. Because they love him so

much and they were so scared for him, they stayed in Town B from mid-August to end of October, to be close to him during his surgery, and his recovering. [ 24 ] As widely expected, X also was very attached to this family. And because of this attachment, the psychologist recommends being very careful because of the impact a transfer could have on him.

Despite this recommendation, the DYP worker is totally unable to inform the Court of the modalities of the transfer and about X’s reaction. [ 25 ] Before the process of accreditation, the DYP was looking for a majority placement because X was well integrated in this family and the bonds between them were strong enough. Exactly what is excepting from a placement.

In another word, the message sends to the child is: “let’s create bonds, let’s gain stability and when you will feel secure, the accreditation process will take place and if the result is negative, you will be transferred again and maybe you will be able to create other secure bonds somewhere else!” [ 26 ] The objective of the law is to offer to children a safe place to stay when their parents are not able to provide it. The objective is not to be negligent to the point that one of the main responsibilities of the DYP is not fulfilled. [ 27 ] Today, X is living with an C family member.

Obviously, this diminishes the prejudice for him, as he knows Ms. E. But despite the lack of verification made for her parents, it is difficult to explain how it is possible for the DYP to proceed in the same way as it was done for her parents.

The other adults in the house are still not evaluated. [ 28 ] As corrective measure for the wronged rights, the Court will order that the process of accreditation has to take place urgently to reduce as much as possible the risk of prejudice for X who already had a very difficult year. [ 29 ] Because of the whole situation, the Court cannot proceed with a long-term placement, even if the period of 91.1 YPA is reached. He will have to wait again before making a long-term decision.

FOR THOSE REASONS, THE COURT: [ 30 ] GRANTS the application; [ 31 ] DECLARES that the security and development of the child X, born on [...], 2008, are still endangered; [ 32 ] DECLARES that the rights of X have been wronged by the DYP; [ 33 ] ENTRUSTS X under the care of Ms. E, as foster family if she is accredited as such; [ 34 ] ORDERS the Director of Youth Protection to prioritize the process of accreditation of Ms. E as a foster family; [ 35 ] Before this process of accreditation is completed, ORDERS the DYP to check the criminal record of all the adult living in Ms.

E’s house; [ 36 ] ORDERS that X never be left alone with Mr. D; [ 37 ] ORDERS that the child attend school on a daily basis; [ 38 ] ORDERS that X receive all health care and services required by his situation; [ 39 ] ORDERS that the recommendations of Dr. Joseph Beltempo in the situation of X, are followed including any other evaluation he could recommend; [ 40 ] ORDERS that Ms. E be informed of the recommendations made by Dr.

Beltempo and that she receive help to apply those recommendations; [ 41 ] ORDERS that any recommendations made by the psychologist regarding schooling be communicated to the school and ORDERS the Director of Youth Protection to make sure those recommendations be applied; [ 42 ] RECOMMENDS that the mother seek help through Social Services concerning her personal issues; [ 43 ] ORDERS that the mother take an active

part in the application of any of the measures ordered by the Court; [ 44 ] ORDERS that a person working for an institution or body, provide aid, counselling or assistance to the child, his family and his foster family; [ 45 ] ORDERS that the mother report in person, at regular intervals, to the Director of Youth Protection to inform her of the current situation; [ 46 ] ORDERS that the modalities, frequency and degree of supervision of the contacts between the child and his mother be determined by the Director of Youth Protection; [ 47 ] ORDERS that the mother remain sober in presence of her child; [ 48 ] ORDERS that the exercise of certain attributes of parental authority regarding X be withdrawn from the mother and granted to the Director of Youth Protection by the Court, namely regarding health; [ 49 ] RECOMMENDS to the Commission des Droits de la Personne et des Droits de la Jeunesse to do an investigation in this file and INVITES the Commission to make any other recommendations;

[ 50 ] ORDERS the clerk of the Court of Quebec, Youth Division to notify this decision to the Commission des Droits de la Personne et des Droits de la Jeunesse; [ 51 ] ORDERS the execution of the present decision by any peace officer; [ 52 ] ENTRUSTS the situation of the child X , to the Director of Youth Protection of the Inuulitsivik C.Y.P.C., who shall then see that the measures are carried out; [ 53 ] THE WHOLE until November 30, 2020. __________________________________ PEGGY WAROLIN , J.C.Q. Me Karianne Asselin, attorney for the Director of Youth Protection Me Laurence Migué, attorney for the child Me Angèle Tommasel, attorney for the mother Dates of hearing: November 20 and 21, 2019