2013 QCCQ 9936, 2013 QCCQ 9936

Protection de la jeunesse — 132759 2013 QCCQ 9936 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 640-41-001357-117 DATE: May 10, 2013 ______________________________________________________________________ BY THE HONOURABLE NANCY McKENNA, J.C.Q. ______________________________________________________________________ [SOCIAL WORKER 1], Youth Protection worker duly authorized by the Director of Youth Protection of the A C.Y.P.C. working in A town Applicant -and- X, residing and domiciled in A town, Quebec, district A Child -and- A, hospitalized at the A Care Center in B town, Quebec, district B Mother -and- B, residing and domiciled in A town, Quebec, district A Father -and- THE PUBLIC CURATOR, […], […], […] floor, office […] in B town (Quebec) […] -and- LA COMMISSION DES DROITS DE LA PERSONNE ET DE LA JEUNESSE, […], […] , […] in B town (Quebec) […] Interested parties ______________________________________________________________________ JUDGMENT (Sec. 95 (par. 1) and 75 of the Youth Protection Act) ______________________________________________________________________ [ 1 ] The Director of Youth Protection makes an application for the review of a decision rendered by the Court on February 5, 2013, concerning X, born on […], 2003. [ 2 ] At the hearing, the child and the father are present, each of them is represented by their lawyer.

The mother is under Public Curatorship. The Public Curator was duly served and decided not to be present. ISSUE TO RESOLVE [ 3 ] The parties admit that the security and development of X remain endangered and that the parents are unable to care for X. The mother is in a neurological coma and lives at an extended care centre in B town. The father has yet to seek help for his personal issues, notably his addiction to marijuana. [ 4 ] The Director of Youth Protection seeks the placement of the child in a specialized foster home in C town and therefore requests that she be entrusted to a rehabilitation center.

The father and the child are in disagreement with the Director's recommendation and believe that X should continue to live with her uncle. THE FACTS [ 5 ] X has been victim of parental neglect, which led her to develop oppositional behaviour. Moreover, the child harbours significant emotional pain stemming from her past. In December 2011, she was entrusted to her aunt C who didn't care for her in a proper manner. In fact, the aunt left the community on a regular basis without the child, leaving her homeless. This situation only heightened the child's difficulties.

[ 6 ] However, at the time of the previous hearing, the child was living with her uncle and was showing a certain level of conformity to the rules set out by the uncle. Considering the child's sense of loss as well as the lack of services rendered by the Director of Youth Protection, the Court found it premature to uproot the child from her community and from her extended family. The Court therefore entrusted the child to a foster family, taking notice that she would remain in the care of her uncle.

The purpose of the short placement was to oversee X's behaviour as well as the services provided by the Director of Youth Protection. [ 7 ] For the purpose of the present decision, the Court studied the revision report as well as a psychological evaluation of the child. The goal of the assessment was to determine whether X continues to show signs of oppositional behaviour. Also, the Court heard the testimony of the applicant. [ 8 ] The revision report dated March 29, 2013, was written by [social worker 2].

It states that the child had gained a certain stability as she was respecting the house rules set out by her uncle and was coming home at night which was considered to be an improvement. Although X was attending school, the revision report highlights the fact that she refused to stay in the classroom and spent her time in the hallway. At the time the revision report was drafted the child had met the behavioural technician on a few occasions.

A slight improvement in class was noted for a week or so only to go back to the way things were before, in terms of the lack of participation by the child in class. [ 9 ] In regards to X's compliance to the rules set out by the foster family, the author of the revision report believed that the child and the uncle were in a honeymoon stage that might not last considering the child's history of oppositional behaviour. The Director of Youth Protection also provided services to X as well as to the uncle by way of weekly home visits and biweekly telephone meetings. [ 10 ] The psychologist Dr.

Joseph Beltempo completed a new assessment regarding the child's oppositional behaviour disorder. Dr. Beltempo reviewed his past psychological report, administered projective tests and conducted a clinical interview with the child. One of the psychological instruments was deemed invalid as the child refused to answer several questions. The psychologist reports that the unanswered portion of the test was likely to produce a negative image of X. In his opinion, the child may have avoided to complete some items of the test due to repressed emotional pain. Dr.

Beltempo confirms the child's oppositional defiance diagnosis and believes that a specialized foster home could offer the child a higher structured environment where she could work through her personal issues of abandonment and behaviour problems. [ 11 ] A few weeks before the hearing, there was a change of caseworker. Ms [social worker 2] was replaced by the applicant, [social worker 1]. Ms [social worker 1] already knew the family as she previously worked with them in the past.

Her testimony sheds new light on the child's situation. [ 12 ] According to her, the uncle is seemingly oblivious to his niece's needs and emotions. For example, in the last weeks the child's behaviour in class warranted her transfer into behaviour class. The applicant reports that the uncle shrugs off any concerns regarding X, simply stating that everything is fine. She adds that there is conflicting information with regards to X's whereabouts during evenings.

She also questions the child's eleven o'clock curfew set by the uncle and adds that it is insufficient structure for a 9-year-old child struggling with oppositional issues. Moreover, on April 23, 2013, the child told her that she was unhappy at her uncle's. The child senses that her uncle doesn't care for her. [ 13 ] In cross-examination, Ms [social worker 1] was questioned at length concerning the changes observed with respect to the child's situation since the completion of the revision report and as to why no complementary report was filed.

Ms [social worker 1] replied that her testimony is the result of interviews conducted with school personnel, the foster family as well as with X. In regards to a complementary report, Ms. [social worker 1] states that she was unable to file one considering another urgent matter she had to attend to. In any event, such a report wouldn't have changed the recommendations. [ 14 ] In support of her recommendations, the applicant emphasizes the inadequate care provided by the uncle and the fact that X is still resistant to structure.

She adds that no other foster family in A town is willing to care for X because of her history of oppositional behaviour. The specialized foster home in C town offers a family like environment with the daily presence of two educators as well as counsellors. [ 15 ] It is to be noted that during the hearing the child seemed distraught. The Court's attempt to find out X's true feelings failed, as she remained unresponsive and tearful during the few questions put to her.

POSITION OF THE PARTIES [ 16 ] Counsels for the child and the father put into question the applicant's testimony, as it is somewhat irreconcilable with the revision report. Counsel for the father adds that a minimum standard of transparency on part of the D.Y.P. would have required a complementary report. In light of the information gathered in the revision report, the attorneys acting for the child and the father believe that it is in the best interest of the child that she remains in her foster family.

They also argue that separating X from her community and her family would be detrimental to her. [ 17 ] For his part, counsel for the applicant presses the Court to read the revision report as a whole. He adds that the testimony of the applicant only confirms the child's need for specialized help that cannot be provided in a foster home. ANALYSIS [ 18 ] At the outset, the Court feels the need to remind the Director of Youth Protection of

section 2.4 of the Youth Protection Act that provides: 2.4. Every person having responsibilities towards a child under this Act, and every person called upon to make decisions with respect to a child under this Act shall, in their interventions, take into account the necessity (1) of treating the child and the child's parents with courtesy, fairness and understanding, and in a manner that respects their dignity and

autonomy; […] (3) of ensuring that the parents have understood the information or explanations that must be furnished to them under this Act; […] (5) of opting for measures, in respect of the child and the child's parents, which allow action to be taken diligently to ensure the child's protection, considering that a child's perception of time differs from that of adults, and which take into consideration the following factors: (

a) the proximity of the chosen resource; (

b) the characteristics of cultural communities; (

c) the characteristics of Native communities. [ 19 ] The Court must also consider

section 3 Y.P.A. that states: 3. Decisions made under this Act must be in the interest of the child and respect his rights. In addition to the moral, intellectual, emotional and material needs of the child, his age, health, personality and family environment and the other aspects of his situation must be taken into account. [ 20 ] Everyone recognizes that the father cannot care for X.

He has not addressed his addiction to marijuana that seems to have become a lifestyle. [ 21 ] In light of the new information gathered by the applicant, the Court believes that a complementary report would have been helpful to better understand the child's situation and the applicant's recommendations. The Court believes this is part of the Director of Youth Protection's duty to provide relevant information to the parents. [ 22 ] This being said, the Court cannot put aside the applicant's testimony for the mere reason that her observations were not written in a complementary report.

In the Court's opinion the applicant's testimony must be viewed in a wider context. The child has been showing signs of oppositional behaviour since 2011, at least. The evidence shows that the care and structure provided by the uncle are inadequate in regards of the child's needs. The fact that X cried during a part of the hearing and disclosed to the applicant that she is not happy at her uncle's reveals emotional distress. Moreover, the Court lends credibility to the assessment made by Dr.

Beltempo as it's reflects the child's reality. [ 23 ] The testimony of the applicant proves that despite the services rendered, the child is in need of stability within a higher structured environment. The Court is convinced that, for now, the child's community and family are unable to provide the structure and the stability that she desperately needs. The Court is also concerned that if the child remains in her community her oppositional behavioural disorder will only heighten further endangering her development.

X needs the stability, the structured environment and the professional services of a specialized foster home. [ 24 ] The father must try to address his personal issues and support his daughter in her new living environment. He remains a meaningful person in X's life.

The Director of Youth Protection must therefore encourage contacts between both of them. [ 25 ] After careful consideration of the evidence, the Court concludes that the recommendations of the Director of Youth Protection are necessary and in the best interest of the child. [ 26 ] FOR THESE REASONS, THE COURT: [ 27 ] GRANTS the petition; [ 28 ] DECLARES that the security and development of X, born on […], 2003, are still endangered; [ 29 ] ORDERS that X be entrusted to a reception center for a period of six months; [ 30 ] TAKES NOTICE that the Director of Youth Protection intends to entrust X to a specialized foster home in C town; [ 31 ] ORDERS that the contacts between the child and her parents be supervised by the Director of Youth Protection as to terms and frequency; [ 32 ] RECOMMENDS that such contacts occur as often as possible, in the best interest of the child; [ 33 ] ORDERS that a person working for a institution or body provide aid, counsel and assistance to the child and her family for a period of six months; [ 34 ] ORDERS that the child benefits from a psychological follow-up; [ 35 ] ORDERS that the father seeks the necessary help to address his personal issues, notably his marijuana consumption; [ 36 ] ORDERS that the father play an active

part in the application of the measures ordered by the Court;

[ 37 ] ORDERS the police to collaborate in the execution of the present judgment; [ 38 ] ENTRUSTS the child's situation to the Director of Youth Protection for the purpose of executing the measures. __________________________________ NANCY McKENNA, J.C.Q. M e Robert-André Adam Cain Lamarre Casgrain Wells Lawyer for the D.Y.P. M e Cassandra Neptune Legal Aid A Lawyer for the child M e Sarah Plamondon Lawyer for the father Date of hearing: April 30 & May 1 st , 2013