2017 QCCQ 1259, 2017 QCCQ 1259

Protection de la jeunesse — 17378 2017 QCCQ 1259 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] « Youth Division » N° : 525-41-031933-161 DATE : February 3, 2017 ______________________________________________________________________ PRESENT: THE HONOURABLE FRANÇOIS STE-MARIE, J.C.Q. ______________________________________________________________________ DIRECTOR OF YOUTH PROTECTION and X Born on […], 2016 Child and A B parents ______________________________________________________________________ JUDGMENT

Section 38 of the Youth Protection Act (R.S.Q. c. P-34.1) ______________________________________________________________________ Warning : The Youth Protection Act prohibits the publication or broadcast of information allowing a child or the child’s parents to be identified. Every person who contravenes this provision is liable to a fine (sections 11.2, 11.2.1 and 135 Y.P.A.). [ 1 ] In accordance with the requirements of

section 90 of the Youth Protection Act , the Court hereby confirms and gives the reasons for the decision rendered from the bench at the hearing held on February 3, 2017. Introduction [ 2 ] The Director of Youth Protection (the Director) alleges that the child is victim of bodily injury by the parents. [ 3 ] The child presented with fractures on the ribs, several brain bleeds, injury to her spinal column, a bruise on the right shoulder and the abdomen. Medical professionals report that the injuries are consistent with inflicted trauma.

They also report that the parents’ explanations for the injuries (minor car accident or birth trauma) are not plausible. [ 4 ] The parents deny ever physically harming the child. They would like to be reunited with the child. [ 5 ] On November 25, 2016, immediate protective measures were invoked and the child was placed in a foster home.

On November 28, 2016, the Honourable Justice Martine Nolin extended the application of the immediate protective measures for a maximum period of five working days. [ 6 ] On December 1, 2016, as the parents’ lawyer was not available, the Honourable Justice Line Bachand postponed the hearing on the motion for provisional compulsory foster care until December 8 2016. [ 7 ] On December 8, 2016, the Honourable Justice Paul Grzela ordered the compulsory foster care of the child in a foster family. Question in litigation [ 8 ] Was the child victim of physical abuse?

If so, what are the appropriate measures in order to put an end to the situation of compromission and prevent its recurrence? Context

[ 9 ] On November 16, 2016, the child had a visit with her primary physician and she appeared in a healthy state. [ 10 ] Later the same day, the mother noticed that the child’s right shoulder was swelling. Early in the morning of November 17, 2016, she went to the Lakeshore Hospital with the child and was eventually referred to the Montreal Children’s Hospital. [ 11 ] The child had swelling on the right shoulder and an X-Ray was done. As the shoulder appeared fine, the child was discharged. [ 12 ] Upon review by a radiologist, several healing rib fractures were noticed and the family was contacted.

They returned to the hospital on November 18, 2016 for the child to receive further evaluations. [ 13 ] The child was hospitalized between November 18 and the 25. She went through numerous tests and evaluations. [ 14 ] A skin discoloration was observed on the child’s right shoulder and the right side of her upper abdomen.

These marks, and more specifically the mark on the shoulder evolved rapidly. [ 15 ] The child underwent a full skeletal survey and four healing rib fractures were observed; two posterior on the right side and two on the left side (one posterior and one anterior). [ 16 ] The child had mixed density bleeds at different locations in her brain. [ 17 ] The MRI of the child’s spinal column showed a change in her bone signal.

Analysis [ 18 ] The Director has the burden to prove, on a balance of probability, that the security or the development of the child is compromised as the child is the victim of bodily injury by the parents under

article 38 e) 1 o of the Youth Protection Act . [ 19 ] In the present situation, the parents recognized that no other person ever cared for the child since her birth. [ 20 ] The Director filed the child’s medical records and presented Dr. Chauvin Kimoff as her first witness. The Tribunal recognized Dr. Chauvin Kimoff as an expert in pediatrics, trauma and child maltreatment. Since 1984, she has been working at the Montreal Children’s Hospital and has been involved with child maltreatment pediatrics since 1996. [ 21 ] Dr.

Chauvin Kimoff reports that the rib fractures appear to have been the result of an incident that would have happened two to three weeks prior to the X-ray. The fractures likely stem from an inflicted trauma. [ 22 ] She reports that the presence of blood in the child’s brain, in its multiple locations, is highly correlated with injury through shaking. Dr. Chauvin Kimoff is very nuanced and explains that, as there is no retinal hemorrhaging, the behaviour of shaking the child cannot be confirmed.

She is very clear that the several brain bleeds and the location of the blood are highly associated with inflicted trauma. It could be the result of one or repeated traumatic events. [ 23 ] Dr. Chauvin Kimoff reports that the change in the child’s spinal column bone signal is typical of a finding related to trauma to the bone consistent with a compression fracture. She mentions that the lumbar fracture observed is typical of an injury that occurs with axial loading (pressure generated on the spinal column in a vertical fashion).

She mentions that nothing in the everyday routine of a two month old child could explain this. [ 24 ] In all her years of practice, Dr. Chauvin Kimoff never observed such a degree of evolution as in the child’s shoulder. She reports that this likely represents an impact to the tissue in this area. The finding on the shoulder has to stem from a recent incident as the child was seen by her physician on November 16, 2016 and she appeared fine. [ 25 ] Consequently, Dr.

Chauvin Kimoff reports that the multiple injuries observed on the child were the result of at least two incidents. [ 26 ] The child underwent many tests and evaluations (genetics, radiology, hematology, and neurology). Nothing in these tests, outside of inflicted trauma, could explain the child’s numerous injuries. [ 27 ] She commented on the parents’ explanations for the injuries. The described minor car accident, where the child was buckled in her car seat and where the mother bumped into something which caused limited damage to the car was ruled out.

This event would likely not cause the child any injury. [ 28 ] The fact that the injuries could be related to birth trauma was also discarded. The child was born by C

section following a pregnancy complicated by gestational diabetes. No complication at birth was noted in the medical file. [ 29 ] During her testimony, the mother mentions an incident that occurred on November 2 nd , 2016. She reports that the child was sleeping, next to her, in the bedroom. The child woke up and started crying. The father took the child and brought her in the living room. She heard the child cry loudly and then heard nothing. The father asked her to come in the living room as the child had stopped breathing.

The mother reports that, when she arrived in the living room, the child had her eyes closed and had problems breathing. She shook her and tried to wake her up. She eventually went to a neighbour for help. The neighbour massaged the child, pressing her stomach and abdomen. The child eventually started breathing. The mother reported that this situation (where the child had her eyes closed and problems breathing) lasted approximately ten minutes. An ambulance was called and the child was brought to the hospital.

The mother reports that she mentioned to the doctors that reanimation manoeuvres were executed by her neighbour on the child.

[ 30 ] During his testimony, the father reports similar observations regarding the November 2 nd , 2016 incident. He mentions that the child started exhibiting problems (seizure) after he sat with the child in front of the computer. [ 31 ] During their meetings with the youth protection worker and the sergeant detective, the parents’ versions of the incident differs from the sequence of events described in their testimony. During the evaluation, contrary to his testimony, the father mentioned that the child started seizing while he was bringing the child to the living room.

The mother never mentioned to the youth protection worker nor the sergeant detective that she shook the child, trying to wake her up. [ 32 ] It is noted, in the child’s medical file, that when the child was brought to the hospital on November 2 nd , 2016, she had not lost consciousness. There were also no mention that the neighbour had done reanimation manoeuvres. [ 33 ] During her testimony, the mother also mentions a situation that occurred with the child on November 16, 2016. She first reports that, after she washed the child, she almost fell down with the child and that the child almost fell down.

The mother’s lawyer and the Tribunal clarified with the mother that the child “almost fell”. Later in her testimony, the mother reports that the baby fell on the floor and that her head did not hit the floor but hit the wall. [ 34 ] When asked why she only mentioned this during her testimony, the mother reports that she heard Dr. Chauvin Kimoff’s testimony and that it occurred to her that maybe this caused the injuries. She mentions that she did not do it on purpose. [ 35 ] The mother met with the youth protection worker on several occasions during the evaluation of the signalement.

She also met with the sergeant detective on one occasion and never gave this possible justification for the child’s injuries. [ 36 ] The mother reports that she only mentioned the November 16, 2016 incident to the father the day before the hearing. She states that she never taught that this could be considered as the accident causing the injuries.

Later in her testimony, the mother mentioned that she hid this information because of fear. [ 37 ] Consequently, the mother’s credibility regarding the November 16 events is greatly diminished. [ 38 ] The medical evidence is not contradicted and the parents’ different explanations are not supported by the medical proof. [ 39 ] Consequently, the Director met her burden of proof and the Tribunal concludes that the child is the victim of bodily injury by the parents.

The Measures [ 40 ] The Tribunal heard the parents; they love the child and they would want that the child to go back to their home. [ 41 ] As they were not transparent with the youth protection worker, the doctors, the police and with the Court, it is difficult for the Tribunal to trust them with the security of a very young infant.

The child will have to reside in an alternative milieu. [ 42 ] The youth protection worker mentioned in her testimony, that if the Tribunal was to entrust the child to a foster family, she would have to be moved to a different foster home as her actual resource cannot ensure that the child receive all the necessary medical follow up. [ 43 ] A preliminary assessment was done on the maternal uncle and his wife. The resource department will continue to assess the milieu to determine if they can become a foster family. The uncle and his wife are willing and able to care for the child.

THEREFORE AND FOR THESE REASONS, THE COURT: [ 44 ] GRANTS the motion; [ 45 ] DECLARES that the security or the development of the child is in danger (

section 38 e) 1 o of the Youth Protection Act ); [ 46 ] ENTRUSTS the child to her maternal uncle, Mr.

C; [ 47 ] TAKES JUDICIAL NOTICE that the Director will continue the foster family assessment of the maternal uncle’s milieu; [ 48 ] ORDERS that the frequency and modalities of contacts between the child and her parents be determined by the Director of Youth Protection including supervision either by the youth protection worker or a person approved by the Director of Youth Protection; [ 49 ] RECOMMENDS that the parents receive psychological services and follow through with any recommendations made; [ 50 ] AUTHORIZES the Director of Youth Protection to obtain and exchange pertinent information with treating professionals and relevant services providers; [ 51 ] ORDERS that the child receive all health services and care that is requested by her state; [ 52 ] ORDERS that a person working for a Child and Youth Protection Centre provide aid, counsel and assistance to the child and her family; [ 53 ] THE WHOLE for a period of one year; [ 54 ] ENTRUSTS the situation of X to the Director of Youth Protection, who shall then see that the measures are carried out.

__________________________________ François Ste-Marie, J.C.Q. Signed on February 10, 2017 /cd Mtre Myriam DeBlois Counsel for the Director of Youth Protection Mtre Maud Jasmin Counsel for the child Mtre Francis Cloutier Counsel for the parents Dates of hearing: February 2, and 3, 2017