r v. A, 2015 QCCQ 21060

Protection de la jeunesse — 155430 2015 QCCQ 21060 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 760-41-004928-159 DATE: October 29, 2015 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X Born: […] 2015 Child ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION OF LE CENTRE JEUNESSE A Petitioner v.

A Parent ______________________________________________________________________ JUDGMENT ______________________________________________________________________ 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 presents a motion for protection in regards to X, born on […] 2015.

Alleging a situation of endangerment in reason of a serious risk of neglect, the Director seeks a 9 month protective order, including the placement of the child in foster care and the supervision of his contacts with his mother. Furthermore, the Director asks that the Court take act of the elaboration of a life plan. [ 2 ] The Court proceeds in the absence of the mother, who receives service of the motion and is further advised by the caseworker of the date of the hearing. [ 3 ] The attorney for the child operates under a legal mandate.

After evaluating the evidence, she states being in agreement with the orientation put forth by the Director, save the issue of the elaboration of a permanency plan. She considers that such a conclusion is premature in the circumstances and doesn’t reflect the interests of her client. [ 4 ] Context [ 5 ] The Director of Youth Protection intervenes in the situation of the child the day of his birth. [ 6 ] The mother presents a history of instability, always unresolved notwithstanding a history of involvement with social services.

More notably, there are recurrent issues as to her residential stability, sources of income and refusal to seek services in regards to her established mental health issues. [ 7 ] The mother’s three other children are subject of protective measures and are not in her care. Her implication with the consequent follow-ups is minimal and her contacts with her children are inconsistent. [ 8 ] Since February 2015, the mother lives with Mr. B.

She doesn’t work and is financially dependant on her spouse. [ 9 ] During her pregnancy, the mother and her spouse initially plan putting the child up for adoption, but finally change their minds. The mother receives no medical follow-up throughout the pregnancy. [ 10 ] At the occasion of X birth, the mother presents hygiene issues which require her isolation (head lice). Citing this, as well as the prohibition to smoke cigarettes, the mother leaves the hospital the following day, leaving her son’s care to the medical personnel. She fails to sign the necessary forms documenting her son’s birth.

Afterwards, she calls the hospital to verify how he is doing.

[ 11 ] As to the child’s paternity, the mother verbalizes her boyfriend as being the biological father. He is not present at X birth and is not declared on the birth certificate. [ 12 ] On July 21, the parties sign a provisional agreement placing the child in foster care and providing supervised contacts for his parents. [ 13 ] The couple ceases their frequentations in August and Mr. B states that he is not X father and to not seeking any involvement. [ 14 ] To the caseworker, the mother recognizes that she has not put services in place in the past, but further states her wish to rectify the situation.

To this effect, she makes certain positive strides in her personal situation. In August, she presents herself to the Douglas Hospital and reactivates her file. She advises being on a waiting list for mental health services. She is receiving welfare and is currently residing with one of her siblings. [ 15 ] The mother’s visitation is initially scheduled for three times a week, on a supervised basis. The mother understands that her son’s best interests dictate him avoiding too much transportation and she agrees to travel from Ville A to Ville B for the visitation.

The mother’s presence to the contacts can be irregular, as she sometimes cancelling or is absent. Overall, she demonstrates good parental capacities during the contacts. [ 16 ] Following her separation, the mother cites having problems assuming the transport costs for her visitation and the Director agrees to assume half. The mother’s visitation is gradually reduced considering her difficulties being present at the initially agreed upon frequency.

The parties eventually agree to vary the frequency of the visits to once a week for two hours, with the mother confirming her presence. [ 17 ] The mother is present for her son’s vaccination. [ 18 ] On August 18, 2015, the mother agrees to the measures stipulated at the orientation table. Furthermore, the caseworker testifies that as of September 1 st , she advises the mother that there will be a transfer of X to a permanent foster family.

The mother agrees and states understanding this orientation. [ 19 ] Since this date, the mother is more irregular as to visitation. [ 20 ] The mother receives an e-mail confirming visitation as well as the next court date.

The caseworker recently meets with the mother who states that she thinks that a life plan would be an appropriate response for her son should ‘’things not work with her’’. [ 21 ] In view of the mother’s lack of transparency and participation in the intervention, in conjunction with her history and present instability, the Director declares being unconvinced of her ability to effectuate the level of change required and considers appropriate to proceed to the elaboration of an alternate life plan. [ 22 ] The Court questions the caseworker as to the impact of the judgment taking act of the elaboration of a life plan on the objectives of the intervention.

She responds that such a conclusion would ensure stability for the child. She further states that there would be no impact on the visitation nor the services offered to the mother to aid her as to her personal difficulties. There would be an altering of the vision as to the rehabilitation of the mother’s parental capacities and their services wouldn’t be working towards a return of the child in his natural environment. [ 23 ] Analysis and decision [ 24 ] The evidence presented confirms that the mother presents a history of neglect and a precarious personal situation.

This, in conjunction with the extreme vulnerability of the child, permit to conclude to a serious risk of neglect requiring the application of protective measures. [ 25 ] As to these measures, the mother is unable to assume the care of her young son at the present time and this, considering the many elements of ongoing instability in her life.

The placement of the child in foster care, as well as the greater part of the other measures put forth by the Director of Youth Protection, reflect his best interests and the Court ratifies these. [ 26 ] The live issue is whether the Court should take act of the elaboration of alternate life plan within the course of the measures. [ 27 ] Within this evaluation, it is pertinent to refer to the pertinent dispositions of the Youth Protection Act: 4 . Every decision made under this Act must aim at keeping the child in the family environment.

If, in the interest of the child, it is not possible to keep the child in the family environment, the decision must aim at ensuring that the child benefits, insofar as possible with the persons most important to the child, in particular the grandparents or other members of the extended family, from continuity of care, stable relationships and stable living conditions corresponding to the child's needs and age and as nearly similar to those of a normal family environment as possible.

Moreover, the parents' involvement must always be fostered, with a view to encouraging and helping them to exercise their parental responsibilities. If, in the interest of the child, returning the child to the family is impossible, the decision must aim at ensuring continuity of care, stable relationships and stable living conditions corresponding to the child's needs and age on a permanent basis. [ 28 ] Within the Youth Protection Act , the legislator further defines the provisional period allotted for rehabilitation of a situation of

endangerment, during which the focus of the intervention remains a return of the child in its natural environment. As such, the Court cites (our underlining): 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. [ 29 ] Does the evidence support that the child’s best interests dictate that the Court take act of the Director of Youth Protection’s intention to elaborate an alternate life plan for the child? [ 30 ] The Director advances that the mother presents numerous personal difficulties which have consistently impeded her parental capacities and this, on a chronic basis.

As such, the Director evaluates that the mother offers little as a capacity for rehabilitation of her parental capacities and, as such, it is their intention to elaborate a life plan and this, notwithstanding that the maximum delays of placement are not attained. [ 31 ] The Director cites a decision of the judge Viviane Primeau ( Protection de la jeunesse – 14311 , 2014 QCCQ 6654 ), which, in similar circumstances, determines the following: [63] Il est vrai que le Tribunal ne pourrait à ce moment-ci rendre une ordonnance de nature permanente. [64] Toutefois, devant le portrait de la situation révélé par la preuve soumise, le Tribunal considère qu’il n’y a pas de contre- indication à prendre acte de l’engagement de la Directrice de la protection de la jeunesse à élaborer un projet de vie puisqu’une éventuelle réinsertion auprès de sa mère est une hypothèse qui n’est pas actuellement supportée par la preuve. [65] En outre, l’enfant nécessite de recevoir, dès à présent, réponse à tous ses besoins, notamment son besoin d’attachement. [66] Devant l’inconnu en ce qui a trait à la situation de la mère, il nous faut privilégier une alternative qui permettra à l’enfant de s’investir dans un milieu où il pourrait créer des liens d’attachement solides et durables, ce dans l’éventualité où la mère ne serait toujours pas apte à s’en occuper. [67] C’est donc en tenant compte de la preuve soumise relativement à la situation de la mère que le Tribunal estime justifiée de «prendre acte» du fait que la Directrice de la protection de la jeunesse entend élaborer un projet de vie pour cet enfant au cours de la prochaine année, car pour assurer une stabilité à l’enfant, il est pertinent de la diriger vers une famille d’accueil de permanence de façon à lui éviter un déplacement dans l’éventualité où la mère ne serait toujours pas en mesure de le reprendre. [ 32 ] With deference, the Court does not support this evaluation.

The onus of evidence is on the petitioner, in this case the Director of Youth Protection, to establish that a requested conclusion is in the child’s best interests in regards to the established principles of the Youth Protection Act . [ 33 ] The Youth Protection Act providing that any intervention must tend first and foremost to working to the return to the child in its

natural environment, the evidence cannot simply establish that an eventual reinsertion in the family environment is a hypothesis not supported by the evidence, but that the evidence supports that it is improbable to envision the return of the child in its natural environment. [ 34 ] This distinction is important as in the first case; there results a reversal of the onus on the opposing party to prove that reinsertion is a viable hypothesis.

When the maximum delays of placement are not attained, such comes in direct contradiction with the objective of applying measures towards the rehabilitation of the family environment. [ 35 ] Consequently, to take act of the elaboration of a permanency plan before the expiration of the delay provided by law requires that the evidence establish that such is, in the best interests of the child. [ 36 ] Protective measures are defined by the law, permitting the Court to render orders or make recommendations, the whole in respect of the child’s best interests.

Although not a protective measure per se, the Court may also take act of a given fact. In its evaluation, the Court must consider the weight of such of conclusion.

As is the case with the legislator, the Court should not pronounce itself without reason and even a judicial notice is as much a reflection of an evaluation of the child’s best interests as a standard order. [ 37 ] Such is particularly pertinent within the realm of a permanency plan, where it is necessary to carefully consider the impacts of such a conclusion, again, more notably when the maximum delays of placement provided by the legislator are not attained . [ 38 ] In the present case, when asked if and how such a conclusion would affect the application of the measures, the caseworker is transparent in affirming that such is the case, in that their services will cease working towards the rehabilitation of the family environment and focus on stabilizing the child in his environment while maintaining a mother/child bond. [ 39 ] Therefore, in point of fact, the Court taking act of the elaboration of a life plan will constitute the approval of the undertaking of the process towards the final establishment of an alternate life plan, deterring from the ongoing obligation to promote the rehabilitation of the family environment. [ 40 ] It is also pertinent to consider the mother’s perception of such a conclusion by the Court and the possible detrimental effect on her involvement, which also deters from the objective of rehabilitation. [ 41 ] The Court’s approbation is not required for the Director to elaborate a permanency plan, an administrative task that falls clearly within their purview.

In point of fact, the child already being in a foster family being able to receive him on a long-term basis, his stability is ensured, should such be required if the family environment cannot assume its responsibilities within the timeframe provided by law. [ 42 ] It is essential that the protective measures retained by the Court be concordant with the law, as well as coherent with the objectives of the intervention. [ 43 ] At this juncture, the Court considers the following factors: ➢ The child’s young age; ➢ The mother’s general availability for her son; ➢ The mother’s demonstration of adequate parental skills during the contacts; ➢ The strides made by the mother to respond to her personal difficulties; [ 44 ] Furthermore, the objective of stabilizing the child for the next period of measures is acquired as he is already in a foster family able to receive him on a permanent basis. [ 45 ] Consequently, the Court considers that the conclusion requested by the Director of Youth Protection, if not legally binding, diverts from the primary objective of the measures and therefore, cannot receive the Court’s approbation in the best interests of the child.

The Director must actively pursue its mandate towards the rehabilitation of the family environment and this, even though the Court recognizes the substantial challenges of such [ 46 ] FOR ALL THESE REASONS, THE COURT: [ 47 ] GRANTS the amended motion for protection; [ 48 ] DECLARES that the security and the development of the child are in danger in reason of a serious risk of neglect (article 38 b) 2)

i) Youth Protection Act ); [ 49 ] ORDERS that the child be entrusted to a foster family chosen by the Director of Youth Protection A; [ 50 ] ORDERS that the mother report periodically (every two weeks) to the Director of Youth Protection on the measures she applies in her own regards or in the child's regard to put an end at the situation in which the security or development of the child is in danger; [ 51 ] ORDERS that the contacts between the child and his mother be determined upon agreement between the parties, in the presence of a third party chosen by the Director; [ 52 ] ORDERS that the mother of the child take an active

part in the application of the measures ordered; [ 53 ] ORDERS that a person working for an institution or body provide aid, counselling or assistance to the child and his family;

[ 54 ] RECOMMENDS that the mother receives services for her mental health; [ 55 ] ALL THESE MEASURES for 9 months; [ 56 ] ENTRUSTS the situation of the child to the Director of Youth Protection A for the execution of the judgment. __________________________________ BÉATRICE CLÉMENT, J.C.Q. Me Sarah Gaudry Staub Attorney for the Petitioner Me Karine P. Poissant Attorney for the child Dates of hearing: October 14 and 29, 2015