2018 QCCQ 12, 2018 QCCQ 12

Adoption — 181 2018 QCCQ 12 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] LOCALITY OF [...] Youth Division No. 450-43-001502-175 DATE: JANUARY 03, 2018 ______________________________________________________________________ PRESENT: THE HONOURABLE MARIE-PIERRE JUTRAS J.C.Q. ______________________________________________________________________ In a matter of adoption : X Born on [...]2015 and [SOCIAL WORKER 1] , assistant to the Director of Youth Protection of the Centre jeunesse A Applicants and A and B Parents ______________________________________________________________________ JUDGMENT ______________________________________________________________________ WARNING: Judicial files dealing with the adoption of a child are confidential and no information making it possible to identify the child, or the child’s parents, tutor or adopters may be published or disseminated, except to comply with the law (article 815.4 of the Code of Civil Procedure and

article 582 of the Civil Code of Québec ). [ 1 ] The Director of Youth Protection (the Director) is asking the Court to declare the child X, aged two years and [...], eligible for adoption. [ 2 ] The Director alleged that the mother did not in fact assume the care, maintenance or education of the child during the six months preceding service of the originating application. [ 3 ] The proceeding was served on the mother by bailiff on July 12, 2017.

The reference period stipulated in article 559(2) of the Civil Code of Québec is from January 12 to July 12, 2017. [ 4 ] In her defence, the mother admitted that she had had no contact with her daughter since she left the «A» mother-child shelter on February 10, 2016. [ 5 ] However, the mother denied not having in fact assumed the care, maintenance and education of her daughter during the reference periods. [ 6 ] The mother wanted her daughter to be entrusted to her. [ 7 ] After hearing the parties’ evidence, the child’s attorney supported the Director’s position.

She recommended that the Court allow the declaration of eligibility for adoption, since it meets the legal criteria and is in keeping with her young client’s interest. [ 8 ] In support of his application, the Director filed the protection record of the Court of Québec, Youth Division, as well as a psychosocial assessment report prepared by [Social worker 1]. [ 9 ] The person who signed the psychosocial assessment report, the mother and the mother’s father-in-law, testified.

[ 10 ] At the end of the hearing, the Court took the whole under advisement. [ 11 ] The Court proceeded with the hearing in the father’s absence, having noted the father’s failure to respond to the Director’s application. [ 12 ] The six-month period preceding service of the application did not occur in isolation: it was the continuation of the previous life history of the child and her mother. [ 13 ] As taught by the Court of Appeal of Québec, in order to be able to properly analyze the reference period, it is important to know the history of the child’s family situation: [TRANSLATION] The context of the appellant’s behaviour and history of actions from the time of the birth of the child to the date of the application . . . for a declaration of eligibility for adoption are important for the evaluation of the situation during the six months preceding the application. [1] [ 14 ] In that regard, the judgment rendered by our colleague, Lise Gagnon J., provides insight that should not be disregarded. [ 15 ] Our colleague noted that the mother, after having been authorized to stay with her daughter at «A» shelter in order to have her parenting skills assessed, abruptly left the resource after 15 days to go join a new boyfriend. [ 16 ] The mother entrusted her daughter to the representative.

She asked her to take care of the child and to entrust her to a foster family. The mother clearly indicated to the representative that she no longer wanted to have contact with her daughter. [ 17 ] For six weeks, the mother did not ask for any news about her daughter. [ 18 ] When the application for protection was submitted to our colleague, Lise Gagnon J., the mother asked the Court to entrust the child to her own mother and her father-in-law. [ 19 ] Our colleague could not grant the mother’s request.

She considered that the maternal grandmother and her spouse were regularly involved in disputes where the police was called and that they drank excessively. [ 20 ] Our colleague pointed out that the mother did not have the parenting skills to meet her child’s needs.

The mother had very poor judgment, which affected her parenting skills and exposed the child to a risk of neglect. [ 21 ] The mother had no routine and was unable to implement the recommendations of the caseworkers. [ 22 ] As a result, our colleague entrusted the child to a foster family and acknowledged that the Director would draw up a life plan for the child, in particular, adoption. She prohibited contact between the child and her parents.

She ordered that aid, counselling and assistance be provided to the child and her family for one year. [ 23 ] That judgment was not appealed from and became final. [ 24 ] On March 16, 2016, X moved in with her current foster family. She adapted well to her foster environment and was able to develop bonds with her foster parents. She goes to them to feel secure. That environment has become the one where she feels a sense of belonging. [ 25 ] When the child was about to turn two years old, the foster family was concerned because she did not walk and she would stand on her tiptoes.

The foster family was proactive and went to the hospital’s emergency department. The child was quickly referred to a pediatrician and a pediatric neurologist.

She was diagnosed with cerebral palsy. [ 26 ] The foster parents quickly took steps so that the child could receive the professional follow-ups she needed. [ 27 ] The child had to wear braces, do exercises several times a day and learn to get around with a walker. [ 28 ] The childcare environment provided assistance. [ 29 ] Despite the sad news, the foster family remained committed to the child, quickly and effectively meeting all her needs and providing her with all the help required to fully develop her capacities. [ 30 ] The mother’s situation has not changed.

After moving several times, she settled in Town A in May 2017. [ 31 ] From February to May, the representative did not hear from the mother. Subsequently, the mother regularly inquired about her daughter’s development. [ 32 ] When questioned about the reasons for the Director’s involvement in her child’s life, the mother did not acknowledge any responsibility on her part. She held the father fully responsible.

She said that he was immature, that he played video games and that he had shaken the child. [ 33 ] As a result, the mother did not undergo any follow-up to resolve her personal problems and improve her parenting skills. [ 34 ] Given her lack of awareness of her own problems, the mother was unable to benefit from the psychosocial follow-up provided to her by the representative.

[ 35 ] When cross-examining the mother, the Court noted that she had difficulty situating herself in time; that her comprehension skills are very limited; and that she does not have the insight and judgment required to become aware of her own problems and seek to resolve them. [ 36 ] At present, the mother still does not know why the child was taken away from her.

She considers that she is able to care for the child, even though she has cerebral palsy. [ 37 ] Even though the mother does not have a car, she said that she can see to her daughter’s many follow-ups. [ 38 ] Obviously, the mother does not understand the implications and consequences of her daughter’s cerebral palsy. [ 39 ] The mother compared her daughter to her sister, who had to wear braces when she was younger due to her crooked feet. [ 40 ] The mother’s father-in-law confirmed to the Court that the mother was able to care for the child.

He does not understand why the child was placed with a foster family. [ 41 ] He also does not know why the child was not entrusted to him. He has been suffering and does not understand the situation, but he did not dare to ask questions. [ 42 ] The mother never offered any gifts, and she did not pay the parental contribution to the DYP. [ 43 ] The Court notes that the mother loves her child. However, that love is not sufficient.

No serious steps have been taken to correct the situation of endangerment. [ 44 ] The evidence shows, on a balance of probabilities, that removing the child from her current environment would be unthinkable, since it impeccably meets her many needs. In addition, the bonds she has developed there are significant and grow stronger every day.

THE LAW [ 45 ] It is well established that the Court must analyze the situation in three steps, as indicated by Pierrette Rayle J. on behalf of the Court of Appeal of Québec: [2] [TRANSLATION] . . . ‒ ascertain that a child’s care, maintenance or education has not in fact been assumed by the child’s father, mother or tutor for at least six months (article 559(2) C.C.Q.); ‒ if such is the case, determine whether the father and mother have rebutted the presumption that it is unlikely that one of them will resume custody of the child and assume his or her care, maintenance or education (article 561 C.C.Q); ‒ if the presumption is not rebutted, exercise, in the child’s interest, the discretion granted by the first paragraph of

article 559 C.C.Q. according to the Court’s teachings in Droit de la famille – 1544 and Droit de la famille – 1914 . FIRST STEP [ 46 ] Did the mother in fact assume the care, maintenance or education of her child during the six months preceding service of the application? [ 47 ] Since the landmark ruling in Droit de la famille ‒ 1544 , [3] the jurisprudence of the Court of Appeal of Québec has consistently established that the phrase [TRANSLATION] “assume the care, maintenance or education”, as in subparagraph 2 of

article 559 of the Civil Code of Québec , must be analyzed on the basis of an objective criterion and assessed from the point of view of the child, rather than that of the parents. [ 48 ] How can a parent whose child has been placed in foster care, and who is therefore not in a position to meet the child’s needs on a daily basis, nonetheless assume the care, maintenance or education of the child? [ 49 ] Monique Lavallée J. clearly set out the legal framework for answering that question: [TRANSLATION] The Court thus draws from the Court of Appeal’s doctrine and jurisprudence that, in order to in fact assume the care, maintenance or education of a placed child, a parent’s primary responsibility is to take action to put an end to the grounds that led to the placement while maintaining with the child (aside from in very specific circumstances) a significant emotional bond.

During that time, the parents must demonstrate genuine concern for the well-being of their child through concrete, repeated actions that show the interest in the child that they have as parents (for example, keeping abreast of the child’s development through specific questions, signing the consent forms required for care or other purposes, seeing to the child’s maintenance by making parental contributions or otherwise).

Moreover, when we take the child’s point of view, as we should, how could it be otherwise, since this is what will make it possible to achieve the goal, that is, resumption of custody, as soon as possible, in conditions that are in keeping with his interest. [4] Application of the law to the facts

[ 50 ] The mother did not take action to put an end to the grounds that led to her daughter’s placement. She did not take any steps to improve her parenting skills. [ 51 ] In addition, the mother did not cooperate with the representative to correct the situation of endangerment.

During her meetings with the representative, all she did was ask for news of the child. [ 52 ] Although this shows the mother’s interest in the child, it cannot be considered a concrete step toward improving her parenting skills or correcting the situation of endangerment. [ 53 ] The Court is not criticizing the mother, but simply making an observation. [ 54 ] The Court therefore concludes that the mother did not in fact assume the care, maintenance or education of her daughter during the six months preceding service of the application for a declaration of eligibility for adoption. [ 55 ] The same is true of the father, who has been absent from the child’s life for a very long time.

SECOND STEP [ 56 ] Is it likely that the mother will resume custody of her child and assume her care, maintenance and education? [ 57 ] At this step, it is up to the mother to rebut the presumption that it is unlikely that she will resume custody of her child, as provided for in

article 561 of the Civil Code of Québec . [ 58 ] In Adoption ‒ 0791 , the Court of Appeal, per Rayle J., reiterated the criteria that must guide the Court in assessing the likelihood that custody of a child will resume: [TRANSLATION] Firstly, parenting ability must not be assessed generally, but specifically in relation to the child concerned; the parents’ capacity to give is not sufficient; the child must be able to profitably receive what the parents have to offer. That implies the potential development of an emotional bond with the child, the proof of which rests, once again, with the parents (para. 48).

Secondly, this Court requires that the parent prove that resumption of contact with the child is in his or her best interests (para. 49). Finally, the whole of the evidence submitted with respect to

article 561 C.C.Q. must be analyzed from the child’s standpoint, not that of the parents, and without referring to the parents’ intentions (para. 50). [5] [59] Moreover, in Droit de la famille ‒ 3488 , [6] the Court of Appeal determined that, in order to rebut the presumption of

article 561 C.C.Q., there has to be a specific plan to resume custody: [TRANSLATION] The burden of rebutting the presumption requires more than the simple demonstration of the possibility of resuming custody, although that possibility, if it does exist, is very vague here (para. 19). . . . Therefore, in the absence of a definite plan to resume custody (and not simply a desire to resume contact), it must be concluded that the second condition for a declaration of eligibility for adoption has also been satisfied, that in

article 561 C.C.Q. (para. 20). [60] The mother only proved that she wished and hoped to have her child back with her. She did not submit anything concrete to the Court. [61] Considering the child’s special condition, removing her from her foster environment would be unthinkable. [62] For all these reasons, the Court concludes that it is unlikely that the mother will resume custody of her child and assume her care, maintenance or education.

THIRD STEP [63] At this step, the Court must determine whether it is in the child’s interest that she be declared eligible for adoption. [64] As Vallerand J. clearly pointed out in Droit de la famille ‒ 1544 , [7] the purpose of adoptability is not to decide against a parent, but for the child: [TRANSLATION] When a child is deprived of all care, maintenance and education by his or her parents, articles 611 and 613 can only be interpreted as imposing a charitable attitude toward the parents (48).

This leads to the child being declared non-adoptable and continuing to be deprived of the beneficial stability that can only be provided by genuinely involved and committed parents, as opposed to foster homes (49), the whole without questions being asked. . . . What is secondary takes precedence over what is important and the end takes precedence over the means. Adoption is treated as a

breakup, rather than the creation of bonds. That logic dictates that it be used as a punishment for guilty parents instead of a way to rescue a deprived child.

(49) The respondent argued that adoption is only one of many ways to meet the needs of a deprived child, no better or worse than others. It goes without saying that adoption is by far the best solution, as it provides the child with a family that is, legally and in actual fact, equivalent to a natural family. [Emphasis added.] [65] The child has been living with the same foster family since she was eight months old. She is progressing and developing well in that environment.

Inevitably, over time, the child naturally began to consider the foster family as her own. [66] Despite the recent diagnosis, the foster parents still want to be involved with the child in the long term.

They consider her part of their family. [67] An adoption would offer the child greater stability that a simple placement until full age under the Youth Protection Act , which may be reviewed at the request of a party who alleges significant new facts. [68] An adoption would remove the label of [TRANSLATION] “DYP” child that X will have to bear if she simply remains entrusted to her foster family. [69] An adoption would give the child the opportunity to be part of a family that she already considers as her own and to have parents for the rest of her life. [70] It is in the child’s interest that she remain with her current foster parents, who have become her family, and that she be provided with an environment where she fully belongs on a permanent basis. [71] For all these reasons, the Court concludes that it is in the child’s interest that she be declared eligible for adoption.

THEREFORE, THE COURT: ALLOWS this application; DECLARES the child X judicially eligible for adoption; DESIGNATES the parents of the foster family as the persons who will exercise parental authority over the child X; AUTHORIZES the Director of Youth Protection to receive a copy of the judgment; AUTHORIZES the parties’ attorneys to receive a copy of the judgment; [The following passage appears in English in the original French-language judgment.] ORDER that the clerk of the Court of Quebec keep a certified copy of the exhibit withdrawn by the applicant, and keep the certified copies in the Court record; [End of passage.] ORDERS the execution of the judgment notwithstanding appeal. __________________________________ Marie-Pierre Jutras J.C.Q.

Mtre. Christine Loubier Counsel for the Director of Youth Protection Mtre. Mélissa Robert Counsel for the child Mtre. Sébastien Gagnon Counsel for the mother Date of hearing: November 14, 2017 Exhibits filed: D-1 to D-3