2013 QCCQ 14194, 2013 QCCQ 14194

Protection de la jeunesse — 134880 2013 QCCQ 14194 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] Youth Division No. 615-41-001842-136 DATE: September 6, 2013 ______________________________________________________________________ PRESENT: THE HONOURABLE RENÉE LEMOINE J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X, born on […], 2004 [SOCIAL WORKER 1] , social worker, exercising her profession at the Centre jeunesse A, having a place of business at […], in A City, District of A, […] Applicant v.

A , domiciled and residing at […], in B City, District of A, […] Mother ______________________________________________________________________ JUDGMENT ( sections 38 and 75 , Youth Protection Act ,

chapter P-34.1) ______________________________________________________________________ I – INTRODUCTION [ 1 ] The Court is seized of a motion for protection concerning the situation of X, born on […], 2004. [ 2 ] The mother was present and represented by Mtre. Claude Beaudet. The mother admitted all the allegations in the motion, with the exception of the fact that she occasionally resides at the Centre d’hébergement A. [ 3 ] She did not contest the recommendations of the applicant and agreed to participate in the measures ordered. [ 4 ] The child also admitted, through his attorney, Mtre.

Julie Beaumont-Lapointe, many of the allegations in the motion. He said he wants to return to live in his community of origin, A, and return to his former foster environment, that of B and C. II – QUESTIONS IN DISPUTE [ 5 ] There are really no questions in dispute, considering the admissions of the parties and their agreement with the measures proposed. [ 6 ] The Court will, however, examine the situation of the child from the standpoint of the violation of his rights, under

section 91 in fine of the Youth Protection Act . III – THE FACTS [ 7 ] On July 5, 2010, an agreement on voluntary measures was entered into between the mother and A Board of Health and Social Services of A regarding the situation of the child. [ 8 ] The mother acknowledged that she had abandoned the child for 10 days, without appearing during that time.

She was in prison. [ 9 ] The agreement provided for placement with a foster family for six months, with the services of the Director of Youth Protection for 12 months. [ 10 ] On July 5, 2011, a new agreement on voluntary measures was signed; it provided for the child’s placement with a foster family for 12 months. [ 11 ] On July 9, 2012, a third agreement on voluntary measures was entered into for 12 months.

The agreement provided for the placement of the child with a foster family until the mother assumed responsibility for her son. [ 12 ] The agreement specified that the mother was to receive the following services: ▪ The mother to attend a treatment center ▪ To receive counselling for her issues

▪ To see a psychologist ▪ To receive parenting skills [ sic ] [ 13 ] The mother had detoxification therapy at A therapy centre, over a period of six months ending in January 2013. [ 14 ] On March 1, 2013, Cree social services returned the child to his mother, without informing or asking for the cooperation of the Centre jeunesse A. [ 15 ] On March 29, 2013, the mother and her spouse had an episode of substance abuse in which conjugal violence occurred. When front-line services intervened, marks were noted on the faces of the mother and her spouse.

During that episode, the child was entrusted to a person in the community of B City . [ 16 ] During the week of May 12 to 19, 2013, the mother and her spouse had a second episode of substance abuse. The mother was placed with X and two other children in the “A” shelter in A City . [ 17 ] On May 19, 2013, the mother asked the staff of the shelter to keep her children, saying she was overwhelmed by the situation.

The staff refused and referred her to the youth centre social worker. [ 18 ] After that refusal, the mother left the youth centre, leaving her children at the shelter, without the consent of the centre’s staff. [ 19 ] An immediate protection measure was applied in order to entrust the child to a foster family.

Further to a provisional agreement, that measure was extended to June 19, 2013. [ 20 ] After the child was placed, the mother was involved in a number of violent events, including a violent dispute with her spouse. [ 21 ] Since June 5, 2013, the mother has left the community of A and has been living with friends. IV – ANALYSIS The declaration of endangerment [ 22 ] The evidence unequivocally shows that the child’s security and development must be declared in danger because of the mother’s way of life, which constitutes a risk of neglect in providing for the child’s basic needs, according to

section 38 ( b ) (2) of the Youth Protection Act . [ 23 ] The child is regularly exposed to conjugal violence, which constitutes, in the Court’s opinion, a situation of psychological ill- treatment because of the intensity of the family crises and the recurrence of violent situations. The security and development of the child are also in danger pursuant to

section 38 (

c) of the Youth Protection Act . [ 24 ] The Court added that, in light of the evidence and given the agreement on voluntary measures that was in effect between July 5, 2012 and July 5, 2013, the security and development of the child have never ceased to be in danger, as he was returned to his family environment with no follow-up for the family to ensure his security.

The applicable measures [ 25 ] Before discussing the measures applicable to the child’s situation, certain preliminary comments should be made concerning the services provided over the last few months and the lack of empathy by Cree social services for the child, given the decision to allow him to return to his family environment in unacceptable conditions. [ 26 ] Firstly, the child lived for three years with a foster family in the community of A.

The report by [Social Worker 2], A social worker, indicates that the foster family of B and C provided the child with a stable and loving environment. [ 27 ] The child returned to his mother very soon after her therapy ended, without any services being provided to her to maintain her sobriety and ensure that she was able to assume her parental responsibilities. [ 28 ] Furthermore, it was known that the child would move to a new environment, since the mother was living with her spouse in the A community of B City . The child is of A origin and speaks English and A.

He had to attend a French-language school that also provided services in B language, two languages totally unknown to the child. He had major learning problems. The school authorities in fact questioned the child’s cognitive abilities because of his very limited knowledge and his learning delay as a whole. [ 29 ] The social assessment report by [Social Worker 1], social work at the Centre jeunesse A, also indicates that the child has problems in his relations with peers. He lacks assurance and has low self-esteem.

His integration into a community that is completely unknown to him and whose members speak a language foreign to him certainly did not favour his development or improve his self- esteem. [ 30 ] Considering the circumstances as a whole and bearing in mind the child’s interest, he must be returned to the community of A so as to have the stability he needs for his development. [ 31 ] The foster family of C and B provides an environment he is familiar with and to which he wants to return. [ 32 ] Contact between the mother and the child should be supervised by the Director of Youth Protection and take place in the

community of A.

Furthermore, the child is very attached to his siblings and contact with them should be encouraged so that, when it occurs, it is possible for the mother to have contact in the community of A. [ 33 ] The child will be placed in a foster family for six months in order to assess a life plan for him and evaluate the bond of attachment between the child and his mother in the coming months. [ 34 ] The Court specifically specifies that the child should not be returned to the family environment during that period or before the Court is seized of his situation. [ 35 ] The mother, for her part, should have substance abuse therapy and receive services to maintain her sobriety after the therapy.

Furthermore, she should receive psychological follow-up and continue to receive such services as long as the professional deems that they are appropriate. [ 36 ] Lastly, and although this order was not issued verbally at the hearing, the Court believes that a psychological assessment of the child is necessary in order to confirm or reject the theory of a cognitive delay and be able to help the child by providing him with the services required to promote his learning at school. Violation of rights [ 37 ]

Section 91 in fine of the Youth Protection Act provides for the following: Where the tribunal concludes that the rights of a child in difficulty have been wronged by persons, bodies or institutions, it may order the situation to be corrected. [ 38 ] The power exercised by the Court was described as follows in the decision rendered by the Honourable Élaine Demers in the situation of F.J.R.-G. [1] [TRANSLATION] [58] It is now clearly recognized that the nature of the power exercised by the Court regarding rights that have been violated is similar to a superintending and reforming power. [59] Determining the violation of a right is, above all, determining the elements that constitute that right, under the Convention on the Rights of the Child ( articles 2 and 3 ), the Québec Charter of human rights and freedoms (

section 39 ), the Civil Code of Québec ( articles 32 et seq. ) and the Youth Protection Act (

section 8 ). [60] All these laws state that the child is entitled to protection, security and the necessary attention; the child is entitled to receive adequate health care, social services and educational services. [61] Hence, in our society, the protection of the child is a fundamental value. The Youth Protection Act clearly establishes the framework for intervention by the government administration in providing support, or if that is not possible, in substituting for family or parental shortcomings. [ 39 ] Thus, when a child is the subject of voluntary measures in accordance with

section 54 of the Youth Protection Act , the Director of Youth Protection must ensure that the services are provided to the child or his or her parents as part of the implementation of voluntary measures. [ 40 ] Regarding the circumstances in this case, the Court has no hesitation in declaring that the child’s rights have been violated, since he was returned to his family environment without any support or follow-up, and without an adequate assessment of the situation.

Remedies [ 41 ] The Court may, in the case of the violation of rights, order that the situation be corrected (section 91 in fine ). [ 42 ] The correction measure must promote the child’s interest and be in keeping with his rights, and provide a concrete remedy for the violation of rights so as to orient the case.

IN THE CIRCUMSTANCES, THE COURT: [ 43 ] ORDERS that the child be placed specifically in the foster family of C and B for a period of six (6) months; [ 44 ] ORDERS that no return to the family environment be attempted during that period; [ 45 ] ORDERS A Board of Health and Social Services of A to cooperate with the Director of Youth Protection of A in the execution of this order; [ 46 ] RECOMMENDS that the Commission des droits de la personne et des droits de la jeunesse investigate the situation of this child and ensure that he receives the services ordered; [ 47 ] ORDERS that the Commission des droits de la personne et des droits de la jeuenesse be notified of this decision;

MORE GENERALLY, THE COURT: [ 48 ] DECLARES that the child’s security and development are in danger; [ 49 ] ORDERS the placement of the child with the foster family of B and C in order to evaluate a life plan for the child; [ 50 ] ORDERS that contact between the mother and the child be supervised by the Director of Youth Protection as regards its frequency, terms and conditions, and the presence of a third party; [ 51 ] ORDERS the mother to participate in substance abuse therapy for as long as deemed necessary by the professional; [ 52 ] ORDERS that the mother participate in psychological follow-up for as long as deemed necessary by the professional; [ 53 ] ORDERS that the mother participate actively in the measures proposed by the Director of Youth Protection; [ 54 ] RECOMMENDS that the Director of Youth Protection facilitate transportation so that the mother can visit the child; [ 55 ] ORDERS assessment of the bond of attachment between the child and the mother; [ 56 ] ORDERS that aid, counselling and assistance be given to the child and the mother for a period of six (6) months; [ 57 ] ORDERS a psychological assessment of the child in order to measure his cognitive potential and direct him to the services that will promote his learning; [ 58 ] ORDERS any peace officer to cooperate in the execution of this order, if required by the Director of Youth Protection; [ 59 ] ENTRUSTS the situation of the child to the Director of Youth Protection for the execution of this order. __________________________________ RENÉE LEMOINE J.C.Q.

Mtre. Julie Beaumont-Lapointe For the child Mtre. Claude Beaudet For the mother Mtre. Valérie Martel For the applicant Date of hearing: July 11, 2013