2019 QCCQ 16663, 2019 QCCQ 16663

Protection de la jeunesse — 195256 2019 QCCQ 16663 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF […] TOWN OF […] Youth Division No: 640-41-002258-181 DATE: March 14, 2019 (written judgment rendered on June 6, 2019) ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X, born on [… ], 2005 [SOCIAL WORKER 1 ], Youth Protection worker, duly authorized by the Director of Youth Protection A, working in Town A, district A Applicant and A, deceased Mother and B, residing and domiciled at […] Father ______________________________________________________________________ JUDGMENT (Section 95 of the Youth Protection Act ) ______________________________________________________________________ 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 (DYP) asks the Court to revise a decision rendered on January 18, 2019, regarding the adolescent X, born on […], 2005.

At that date the Court declared the security and development in danger and entrusted the adolescent to a rehabilitation centre until January 31, 2020, and ordered that X be entrusted in an intensive unit for a maximum period of 60 days. [ 2 ] The Court also ordered a psychological evaluation and waiting for this evaluation and the recommendations, the Court ordered that X receive follow-up from the Social Services. [ 3 ] The DYP submits that the situation of X does not request an intensive care anymore. Position of the parties [ 4 ] The father is absent and not represented.

The Court, considering the communications between the DYP and the father, that the father gave a wrong address for the serving, that the father was made aware of the date of hearing and the reasons of the application, that the father recently moved back from Town B to Town A where other attempts of serving were made, his lack of involvement in his daughter's life and the interest of the adolescent, authorizes to proceed in his absence. [ 5 ] X, who is now 13 years old is absent, but represented by Me Martineau. She admits some of the allegations, and she opposes the request.

She wants the previous order to be maintained and asks for a reintegration with extended family members or a foster family as soon as possible. Facts [ 6 ] On January 18, 2019, the undersigned declared that the security and development of X were in danger under

section 38 (

f) of the Youth Protection Act (YPA). [ 7 ] In March 2018, X was diagnosed with a post-traumatic stress disorder (PTSD) and she was hearing voices. Because of her serious behavioural disturbances, failure to attend school and neglect in terms of education needs, voluntary measures were signed after her hospitalization and she was entrusted to the Group Home of Town C for one year. [ 8 ] Despite this placement, X continued to display behavioural disturbances (disrespectful attitude, using drugs, running away and still hearing voices).

She was also affected by the absence and the lack of interest of her father. [ 9 ] In July 2018, as she continued to hear voices at bedtime, and that those voices say bad stuff to her, she received a close follow- up.

[ 10 ] In August, during a home visit, she ran away for three days. In September, she ran away a few times from the Group Home. In October she also ran away while under the supervision of an escort, on her way back from a home visit. [ 11 ] In October, her behavioural disturbances increase (aggressiveness, criminal activities, hallucinations and suicidal ideation). She was hospitalized for five days and has a medication to take every morning. [ 12 ] In November, the situation remains the same.

She ran away seven times and went to houses known for consumption, she made five suicidal attempts, she was physically aggressive seven times, she went three times in the isolation room, she did some death threats, she had been highly intoxicated by alcohol, she smelled nail polish, smelled markers and consumed marijuana. [ 13 ] On November 29, she was again hospitalized after having cut her wrist with razor blades and saying she wants to die.

The doctor concluded that “suicidal attempts were not due to a psychiatric standpoint” and added that “it was mainly a behavioural problem and that she would benefit from a more structured living environment than the actual group home.” [1] [ 14 ] On November 29, 2018, because the situation was no more under control, as she put herself and also the others in danger, the DYP took an immediate protective measure to send her in an intensive supervision unit. [ 15 ] The DYP made a request to [Organization A] to have a place for X in an intensive unit, but it was refused.

On December 4, X was entrusted to the Girls’ Unit in Town D. On December 5, 2018, a motion for provisional measures was heard and the undersigned ordered that X be entrusted to an intensive unit of a rehabilitation centre which could offer her a close supervision, for a maximum of 60 days and also ordered a psychological evaluation. [ 16 ] This decision was not followed as [Organization A] continues to refuse to give a place to X in an intensive unit. X was maintained at the Girls’ Unit in Town D, and her behaviour did not improve.

In December, she attempted to her life many times and needed contention. [ 17 ] In January, Ms. [social worker 2] the DYP worker, testified that the situation remains the same and still requires a lot of supervision and intervention. X continued to come back at the Girls’ Unit while intoxicated and provide drugs to the other girls. The DYP was continuing to ask, on quite a daily basis, to transfer X in an intensive unit, as they are not able to insure her safety at the Girls’ Unit, but [Organization A] continues to refuse.

Ms. [social worker 2] explained that herself, the workers in Town C, the workers in Town D and the DYP herself, talked with [Organization A] without any success. [ 18 ] According to the psychologist of [Center B], X is considered as level 3 in terms of suicidal risk, because she attempted to her life.

As the doctor in Town C said that it was mainly a behavioural problem and not a suicidal issue, the DYP suggested that this doctor speak with the psychologist of [Center B], but it was also refused by [Center A]. [ 19 ] The DYP asked [Organization A] where is the adequate place for a level 3, 13-year-old girl if it’s not in an intensive unit.

They do not answer, but said that they have no place and also said that they are low-staff to ensure the safety of a level 3. [ 20 ] A request was made for a psychological evaluation since December 4, 2018. [ 21 ] X also requested to be transferred in Town E in an intensive unit as she felt she need this kind of service. [ 22 ] On January 18, 2019, the Court mentioned: [31] After two hospitalizations, the doctor clearly indicates that she requires a very well-structured environment and can’t stay at the Group Home.

She is now at the Girls’ Unit in Town D where the staff is not able to offer her the supervision she needs. Despite being there, she continues to put herself in danger. She runs away, consumes, provides drugs to the others, destroys the material and attempts to her life in many ways. It’s obvious that, as the Group Home in Town C, the Girls’ Unit in Town D is not adapted to her. [32] Because of her very special needs and because of the doctor’s recommendations, the Court entrusted X to an intensive unit on December 5, 2018.

Despite this order and knowing all the situation of X, [Organization A] continues to refuse to place her in an intensive unit. […] [34] It’s not a question of [Organization A] agree or not. It’s not a question of place available or not. It’s not a question of lack of staff. It’s not a question of place available for [a] child [of origin A] or not.

It’s a question of a 13-year-old girl who needs this kind of structure, who received a recommendation from a doctor, who was entrusted in other structures not adapted to her, who continues to put herself in danger on a daily basis, and, as any other child in the province of Quebec, has the right to receive the services she needs. [35] The evidence is strong enough to justify the Court to follow the doctor recommendation and to order that X be entrusted in an intensive unit. [ 23 ] Today the Court is seized with an application for revision. The DYP alleged the following facts: 4.1.

The situation of the father remains the same as he is not regularly involved in the life of the youth; 4.2. Since the last Court hearing, the youth remained at the Girl’s unit Rehabilitation centre in Town D; 4.3. The youth still displays serious behaviour issues, notably:

i) Not respecting the authority; ii) Running away;

iii) Displaying aggressive behaviour; iv) Displaying self-harming behaviour; 4.4. However, the behaviour of the youth has stabilized since a few weeks; [ 24 ] Ms. [social worker 3], X’s primary worker at the Girls’ Unit, testifies. Except during her one-month-vacation from December 27 to January 27, Ms. [social worker 3] is always with X. She considers having a good relation with her. She notes that since her return from vacation, X’s behaviour is stable and she participates well in the different programs offered at the Unit.

She was not aware of any suicidal thoughts or behaviour since January 27, nor any running away. [ 25 ] X had physical altercations with peers, but the issue was resolved quickly as X is more able to express her emotions. [ 26 ] Ms. [social worker 3] is aware that X suffers from bullying inside the Unit. The staff make a lot of interventions to address this issue. [ 27 ] Ms. [social worker 3] says that X’s father never call her nor X does. X has communication with her paternal grandmother who will come in Town D shortly for a visit.

If this visit goes well, a home visit will be organized. [ 28 ] According to the primary worker, there is no risk actually for X as she does not put herself or the others in danger.

A reintegration with family members or a foster family should be possible shortly, and for sure, X does not need services from an intensive unit. [ 29 ] The revision report speaks about an event of February 24, and mentions that “X disclosed that she had dangerous materials in her possession thus she had to give all the materials to a staff member and her room was searched in order to see if there were other dangerous materials.” Despite the questions of the Court, as Ms. [social worker 3] was occupied with another youth at that time and did not question her colleagues afterwards, it was impossible to know what kind of material it is. [ 30 ] The report writer mentions that on March 7, 2019, X, after consequences for her inappropriate behaviour, became aggressive and “acted out by breaking the fire extinguisher case on the wall, she pushed a chair and called the staff inappropriate names.” According to Ms. [social worker 3], it’s not exactly what’s happened because the fire extinguisher case broke itself. [ 31 ] Ms. [social worker 3] confirms that X does not receive a follow-up from the Social Services.

The primary worker did not receive a copy of the judgment and was not made aware of the order concerning this follow-up. [ 32 ] Ms. [social worker 1], the social worker, made the attempt to fix an appointment with the psychologist, Dr. Beltempo. The psychologist will be available in April to come to see X. [ 33 ] Questioned about a possible reintegration, Ms. [social worker 1] explained that for now, it’s very difficult to evaluate a time when X will be ready. She suffered from so much trauma in her life, she put herself at risk until very recently and she is very young.

She has to learn to address her emotions, to cope with her feelings and to react properly. Considering all her needs, the importance to be patient and to interact with a lot of precautions, Ms. [social worker 1] thinks that it could be long to stabilize X and around one year it’s a minimum. [ 34 ] The next contact with her grandmother and, if possible, the home visit will give more information about the progress X made. [ 35 ] Actually X needs support from the rehabilitation centre, follow-up with the child psychiatrist and for sure, an evaluation with the psychologist.

Ms. [social worker 1] explains that X does not receive follow-up from the Social Services because it’s offered only on a voluntary basis. Asked if X ever said that she does not want to receive services, Ms. [social worker 1] admits that she never did, but Ms. [social worker 3] considers that she does not need it, as the services offered at the Girls’ Unit are enough. [ 36 ] Ms. [social worker 1] explains the steps she made to obtain that X be transferred in another rehabilitation centre. On February 23, X called her in distress because she was bullied at the Girls’ Unit.

Ms. [social worker 1] confirmed that she would ask another time to transfer her and she did the day after. X called back on March 7. Another time, Ms. [social worker 1] took some steps with [Organization A], without success. On March 13, 2019 (the day before the hearing), an Access Table was held to speak about the situation of X. Ms. [social worker 1] asks another time, but all the other persons present considered that X does not need to be transferred and Ms. [social worker 1] followed the majority. She says in her testimony that she has “no weight in the balance.

I’m sorry, I don’t have reason to follow but … I’m sorry.” [ 37 ] According to Ms. [social worker 1], the Group Home in Town C and the Girls’ Unit in Town D do not offer services adapted to X. She does not know where the best place for her would be, since she is not the one who makes the decision when a placement is needed. Only [Organization A] has the answer. [ 38 ] Ms. [social worker 1] has concerns about the relation between X and Ms. [social worker 3]. Probably the relation is good, but not enough to allow X to open herself adequately.

It’s obvious that X is affected by bullying and twice, she preferred to communicate with Ms. [social worker 1] by phone than with Ms. [social worker 3] in person. For Ms. [social worker 1], this is questionable.

She also has difficulty with the communication as she called Ms. [social worker 3] on March 7, to address this issue and on March 14, she did not receive any phone call. [ 39 ] Ms. [social worker 1] repeats that she has questions about the capacity of the Unit to answer X’s needs and according to her, she should be transferred to receive adapted services. [ 40 ] Questioned about X’s progress since the last hearing, Ms. [social worker 1] indicates that she is not running away and she did not express suicidal ideation.

That being said, Ms. [social worker 1] recognized that no other medical evaluation was made than the one

from November requesting a placement under a close supervision. Ms. [social worker 1] receives the information that in November the risk of suicide was level 3 and it was too high to entrust X in a close unit and today no more evaluation was done, but according to [Organization A] this level is low and she does not need intensive services anymore. [ 41 ] The DYP makes Ms. C, from [Organization A], testify. She admits having received a lot of requests from the DYP [of region B] in the situation of X.

According to her, the decisions are taken in collaboration with the manager, but she admits that [Organization A] has the final word. [ 42 ] In the situation of X, the centres operated by [Center B] are not able to receive her. She said that X is actually in the maximum level unit up to North and she considers that she should stay there as the progress she made recently could be jeopardized by a transfer. Analysis [ 43 ] An application under

section 95 YPA allows the Court to revise a decision when there are new facts justifying a new order. In this case, the DYP alleged that the situation of the father remains the same and that X displays serious behavioural issues, as not respecting the authority, running away, displaying aggressive behaviours and displaying self-harming behaviour. The Court notes that it’s the same allegations as in the application under

section 38 YPA heard in January. [ 44 ] The only difference is the fact that the behavioural of X has stabilized since a few weeks. What does that means according to the evidence submitted? That means that the situation did not become worse than it was. Was it really possible to be worse? [ 45 ] How the workers, on March 14, can testify that there is no more running away and suicidal ideation since January 27, when they filled out an application dated on February 25, saying the contrary? [ 46 ] If the situation of X is stabilized, it’s very good, it’s exactly what everybody wanted.

But that does not mean that the problem is resolved. The testimony of Ms. [social worker 1] is clear that until the day before the hearing, she was still requesting a transfer because she considers the Girls’ Unit was not the appropriate place for X. It’s not because she finished to accept the decision of the majority taken at the Access Table that she agrees with.

She expresses her concerns regarding the bullying, regarding the specific needs of X, regarding the relation between X and her primary worker, regarding the lack of collaboration between the DYP worker and the Girls’ Unit staff and regarding the capacity of the Unit to fulfill X’s needs. [ 47 ] The Court shares the concerns express by Ms. [social worker 1] and also has concerns regarding the follow-up done in this file since the last order. Why Ms. [social worker 3] was not made aware of the Court order?

Why Ms. [social worker 3], as primary worker, was not aware of the dangerous material possessed by X in her room at the Unit? How Ms. [social worker 3] can express the position that X does not need Social Services when it’s ordered by the Court? [ 48 ] The evidence confirms that there is no place to receive X in an appropriate unit and doing so, the DYP is not able to respect the Court order and to obtain what she knows being the best for X. In the circumstances, the only way to respect the decision is to make it change. [ 49 ] But as mentioned, to change the decision, the evidence of new facts are necessary.

Today the Court heard explanations and excuses, but no new facts. FOR THOSE REASONS, THE COURT: [ 50 ] DISMISSES the application; [ 51 ] ORDERS the clerk of the Court of Quebec to notify the present decision to the Commission des Droits de la Personne et des Droits de la Jeunesse. __________________________________ PEGGY WAROLIN , J.C.Q. Me Sarah Bourgeois-Lessard, attorney for the Director of Youth Protection Me Isabelle Martineau, attorney for the youth Date of hearing: March 14, 2019