2011 QCCQ 7422, 2011 QCCQ 7422

Protection de la jeunesse — 111878 2011 QCCQ 7422 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 635-41-000290-095 DATE: April 14, 2011 ______________________________________________________________________ BY THE HONOURABLE NANCY McKENNA, J.C.Q. ______________________________________________________________________ [SOCIAL WORKER 1], youth protection worker, authorized by the Director of Youth Protection of A working in City A Applicant -and- X, residing and domiciled in City A, district A Child -and- A, residing and domiciled in City A, district A Mother -and- B, residing and domiciled in City A, district A Father ______________________________________________________________________ JUDGMENT (Sec. 95 (par.1) and 75 of the Youth Protection Act) ______________________________________________________________________ [ 1 ] The petitioner, [social worker 1], authorized by the Director of Youth Protection asks for the review and extension of an order under

section 95 of the Youth Protection Act , concerning the child X, born on […], 2002. [ 2 ] At the hearing, the child was present and represented by a lawyer, as was the mother. The father was also present although not represented by a lawyer. He nevertheless received some legal advice by the legal aid lawyer before the beginning of the hearing. THE FACTS [ 3 ] The D.Y.P. has been involved in the child's life since his early childhood.

Following different agreements on voluntary measures, the child was entrusted to a foster family for a period of 21 months. [ 4 ] On August 11, 2009, Roy J. declared the security and development of the child endangered due to the parents' problems with alcohol and violence. The child was placed in foster care for a period of 12 months. [ 5 ] Grimard J. reviewed that judgment on September 28, 2010, in accordance with

section 95 of the Youth Protection Act . The new facts submitted to Grimard J. were that both parents continued to have a violent behaviour, leading to many arrests and incarceration. The father attended the center program A for his alcoholism but started drinking again, two weeks later. The mother began the same program but quit before the end.

The reviewing judge considered that the security and development of the child remained endangered and ordered his placement for a period of four months, in order to elaborate a life project for him. [ 6 ] The following facts are admitted or proven on a balance of probabilities. [ 7 ] Since the last hearing, the situation of the father remains unchanged. He is presently serving a jail sentence and has not made any progress pertaining to his addiction to alcohol and his violent behaviour when intoxicated.

He collaborates poorly with the Youth Protection worker and doesn't hold himself accountable for the placement of X and his other children in foster care. At the hearing, he expressed these views quite clearly to the Court. [ 8 ] Contacts between the father and X have been, at best, irregular either because of the father's incarceration or because he was intoxicated during some visits or telephone contacts. However, it is reported that other supervised visits went well as X was happy to see both of his parents.

Moreover, several unauthorized contacts between X and his father occurred when X left his foster family to go at his father's home. On those occasions the parents failed to notify the foster family as well as the Director of Youth Protection.

[ 9 ] After a few attempts, the mother recently completed a treatment program in City B for her alcohol addiction. Upon her return in the community, she continued her relationship with the father rendering cooperation with the Youth Protection worker difficult. Since the father's arrest a few weeks ago, the mother has shown more openness towards the D.Y.P., by agreeing to meet a social worker on a few occasions. Nevertheless, she remains difficult to reach. Furthermore, the parents' relationship remains unclear. Recently, the father pointed a firearm at the mother, leading him in detention.

Violence seems to be deeply rooted within the couple. [ 10 ] X is developing well in his foster family environment. He is a happy and cheerful child who gets along well with others. Following a psychological assessment ordered by Grimard J., Dr.

Beltampo concludes that: o ''His intelligence potential is in the low-average range and the discrepancies in learning suggest a combination of ADHD, learning disabilities (with reversals) and several signs of FASD.'' o ''Specifically he has auditory short term memory problems, which lead to memory problems […]'' o X has a ''strong underlying need to be linked and accepted'', and ''he is experiencing anxieties which manifest themselves in indecisiveness, apprehension and inferiority.'' [ 11 ] Consequently, he is below average in most subject matters at school.

The authorities recently changed his language program from French to English, which has had a positive impact on his academic performances. On the child psychiatrist's recommendation, X is awaiting a follow-up with a psychologist for his anxiety issues. [ 12 ] Considering the lack of meaningful improvement in the parents lives, the security and development of the child remain endangered. MEASURES APPLICABLE [ 13 ] As previously mentioned, the D.Y.P. asks for the placement of X until his majority. The mother doesn't oppose to the proposed measure.

From the representations made by her lawyer, she acknowledges not being ready to care for her child but doesn't give up hope to one day being able to. [ 14 ] The father disagrees with the D.Y.P.'s request. However, he has no solution to propose to the Court other than to ask for a last chance. He voices the opinion that his common law wife and himself actually consume less alcohol when X is with them and in that sense, it is too difficult to have X live elsewhere. [ 15 ]

Section 91.1 of the Youth Protection Act limits the duration of a foster care measure to 24 months for children of the age of six years old and over.

According to the law, at the end of this period the Court must render an order aimed at ensuring the continuous care, stable relationships and living conditions of the child. [ 16 ] From the case law developed on that matter, emerges two essential conditions that must be met before the Court can render a decision aimed at providing continuity of care, stable relationships and stable living conditions to the child on a permanent basis: 1) The prospect of the child's return with his family is unrealistic. 2) The existence of a life project by which the child is able to adapt and bond with his new family. [1] [ 17 ] In order to satisfy to the second condition, the Court must verify the true long-term commitment of the surrogate family towards the child as well as the level of attachment of the child to his new family. [ 18 ] Moreover, in order to avoid the shunting around of the child from one foster family to another, the Court must have the means to confirm and order that the child be entrusted to a specific foster family most likely to meet all of his needs.

This is in keeping with the objective of continuity and stability set forth by the Youth Protection Act and the

interpretation given by the Courts. [2] [ 19 ] In the case at bar, the evidence shows that X has been in foster care for more that 30 months. Furthermore, there is preponderant evidence that the parents are unable to provide the continuous care to the child. Considering the services offered to the parents and the amount of time given to them to resolve their personal struggles, the Court is of the opinion that the prospects that the child returns in his family environment are unrealistic.

This being said, the Court encourages the mother to preserve and continue the effort needed to achieve her goals. [ 20 ] The Court must take into account that the mother has yet to take concrete steps to protect her son from her violent relationship with the father. Moreover, the mother's recent sobriety has to be viewed in a wider context.

To that effect, Bédard J. best summarized the interest of a child in a context of cyclic alcohol consumption by the parents: For the Court, a sobriety period is at the most, a sign of improvement, and can never be considered as a safeguard against the risk of danger for the children, unless it can be maintained for a significant period of time and unless it is linked to other services such as support, therapy and guidance.

Excessive and cyclic alcohol consumption has deeper roots than availability of alcohol and in that sense, it can only be considered as a symptom of inner discomfort in relation with past history of the protagonist. If the Court sees necessary to specify the above, it is because the analysis of the child’s interest to reintegrate his family is often based on the sobriety of the parents over a short period of time and bypasses the need of the child to receive continuous care in a stable environment. [3] [ 21 ] The Court cannot ignore that X has special needs due to his memory problems and learning disabilities.

In that sense, X must grow up in a family able to provide him with stable living conditions adapted to his personal situation. [ 22 ] The child has been living in City A at C for the past 10 months. X is very happy there and Ms C is willing to care for him until

his majority. She has two kids of her own as well as a 13 year old foster child who's been living with her for the past four years. She is aware of X's special needs and is able to apply the repetition and rehearsal strategies recommended by Dr. Beltampo. The most important challenge she faces is the lack of cooperation from the parents especially regarding X's unauthorized visits at the parents' home. [ 23 ] Out of love for X, the Court presses the parents to support their son and his surrogate family. X is a vulnerable child with great need to be loved.

It would be a shame if the parents were to sabotage their son's chance to live in a stable family like environment in his own community. [ 24 ] This being said, the Court wishes that the parents remain significant and positive figures for their child.

Due to the instability displayed by both parents, it is preferable that the contacts be supervised. [ 25 ] In regards to X's intellectual and academic development, the D.Y.P. must work with school administrators in order to put into place the right tools and follow-up regarding his learning difficulties. [ 26 ] In light of the previous placements, the fact that the child cannot go back with the parents and considering the above-mentioned evidence concerning the child's foster family, the Court is convinced it is in the best interest of X to be placed in a foster family until his majority, provided he remains in the care of Ms C. [ 27 ] FOR THESE REASONS, THE COURT: [ 28 ] GRANTS the petition; [ 29 ] MAINTAINS that the security and development of X, born on […], 2002, remain endangered; [ 30 ] ENTRUSTS the child to a foster family until he reaches his majority; [ 31 ] ORDERS the placement of X with the foster family of C; [ 32 ] ORDERS that a person working for an institution or body provide aid, counselling or assistance to the child, his parents and Ms C; [ 33 ] ORDERS that the child receives certain health services such as a psychological follow-up as well as a psychoeducational assessment for the development of his intellectual and academic functioning; [ 34 ] ORDERS that the contacts and communications between the child and his parents be supervised by the D.Y.P. as to the terms and conditions; [ 35 ] GRANTS and ENCOURAGES contacts between the child and his brother and sister as long as the terms and conditions are closely supervised by the Youth Protection services; [ 36 ] ORDERS that the exercise of certain attributes of parental authority be withdraw from the parents and granted to the Director of Youth Protection and the foster family for primary medical health care, sports, leisure and school activities; [ 37 ] ORDERS the police to collaborate in the execution of the present order; [ 38 ] ENTRUSTS the child's situation to the Director of Youth Protection for the purpose of executing the measures ordered by the Court. __________________________________ NANCY McKENNA, J.C.Q.

M e Robert-André Adam Cain Lamarre Casgrain Wells Lawyer for the D.Y.P. M e Marie Claude De Gagné Lawyer for the child M e Denis Trottier Legal Aid A Lawyer for the mother Date of hearing: April 5, 2011