2021 QCCQ 16593, 2021 QCCQ 16593

Protection de la jeunesse — 214668 2021 QCCQ 16593 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 640-41-002418-207 DATE: May 27, 2021 (written judgment rendered on July 6, 2021) ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X , born on [...], 2013 [SOCIAL WORKER 1] , Youth Protection worker, duly authorized by the Director of Youth Protection A, working in [...] Applicant and A, residing and domiciled at [...] Mother and B, residing and domiciled at [...] Father ______________________________________________________________________ JUDGMENT (Section 38 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 prolong a decision rendered on May 19, 2020, regarding the child X, born on [...], 2013. At that date the Court declared the security and development endangered [1] and entrusted the child to a foster family, until May 31, 2021. [ 2 ] The DYP asks to entrust the child to a foster family until May 30, 2022.

Position of the Parties [ 3 ] The parents are represented by Me Cassandra Neptune, but only the mother is present as the father remained at home with the other children. They recognize that the security and development of their child are endangered and they agree with the measures. [ 4 ] X who is 7 years old is absent, but represented by Me Angèle Tommasel. She submits to the Court that the security and development of the child are endangered and the measures are in her best interest. History of the Situation [ 5 ] On August 30, 2018 , the DYP received a report regarding neglect in terms of medical needs.

At that moment, X had been diagnosed with a kidney failure and her medical situation was degenerating. The parents have 6 children, and the mother was pregnant. Doing so, they were not able to give her all the time she needed nor to escort her in City A. [ 6 ] On October 23, 2018 , the DYP concluded that the security and development of the child were endangered under

section 38 (b) (1) ii. The DYP worker present at the hearing ignores why it took so long to finalize the evaluation of the report. [ 7 ] On January 8, 2019 , the parents signed a voluntary measure for a period of one year. They agreed to entrust their daughter to a foster family. This long delay between the conclusion of the report and the signature of the report was due to the fact that the DYP was looking for a foster family. X was residing at City B, but this option was a temporary one.

X had to be entrusted to a foster family. [ 8 ] On January 7, 2020 , the parents signed a new voluntary measure to the same effect for a period of 3 months, to complete the maximum delay of 18 months prescribed by the law. [ 9 ] On May 19, 2020 , the Court was seized with this situation. The evidence showed that the parents have 7 children. The oldest is

12 and half years old. The youngest is 9 months old. X is the fourth one. Except for the oldest one who lives with his maternal grandmother under a family agreement, and X who is fostered, all the other children live with the parents in the community of City C. The father does not work while the mother generally works on a full-time basis. On August 15, 2018, X had to go to City A for a medical reason and she never went back to City C. She lives in her current foster family, with Mr. C and Ms. D since December 11, 2018.

The youngest child has also important health issues, and the mother had to go to City A with him. Considering the father does not work, they have financial difficulties to provide for their children and they finished to seek help through the Social Services and the DYP. [ 10 ] Considering her very specific medical conditions, X is in City A since quite 2 years now. X suffers from a congenital nephrotic syndrome, and she has only one kidney. She will need dialysis and a kidney transplant in a near future.

She is followed on a regular basis with the following specialists: nephrology, cardiology, pneumology, ENT, speech specialist, dentist, immunology, ophthalmology and audiology. She has a lot of medication to take on a daily basis following a very strict schedule. The parents never refused to provide the medical services to their daughter. They are just unable to attend the appointments with her and to remain in City A with the five other children to take care of. Also, the nursing in City C does not have the installation to answer the child’s needs.

According to the health professionals, X has to live in a stable environment to be eligible to a transplant. [ 11 ] In City A, the child has access to all those services, but despite the very good word from the doctors about the foster parents, the DYP worker in City A does not have the same opinion about their involvement with X. This DYP worker also raises concern about the openness of the foster parents to organize contacts between the child and the parents despite the facts that they know that X missed her parents and her siblings a lot and it is the same thing for the parents.

The DYP is conscious about that and intervened many times. The DYP is looking for another foster family because the actual one is available to continue the placement until X start the dialysis, but not after. The issue is the fact that the medical team impose that X be in a stable environment to be eligible to a transplant. Also those foster parents come from another country and plan to go back living in their origin country. [ 12 ] The visits in the North are not possible for X because of her medical needs. She absolutely needs to be close to a hospital able to quickly answer any difficulty.

On their side, the parents cannot travel to City A with 6 children and once there to meet X’s needs and at the same time taking care of the other children. She misses her parents and siblings a lot.

The mother was able to see her daughter only once for 2 years and the visit only last 2 hours because of the foster parents’ obstruction. [ 13 ] The Court insisted on the fact that when another foster family is found, the evaluation of their commitment with X on all the aspects of her specific situation including her emotional needs will have to be seriously verified to be sure that the life plan answers the criteria established by the Court of Appeal. [ 14 ] The Court declared that the security and development of the child were endangered and entrusted her to a foster family.

The Court ordered that she receive the medical services that she need and that the parents are maintained aware of their daughter’s medical condition (at least once a month). The Court also ordered that the school be made aware of the child’s specific needs, a minimal of 2 video calls per week between the parents and the child and 4 physical contacts per year, the whole until May 31, 2021. Facts [ 15 ] The child remained in the same foster family since the last decision.

The pandemic increased her difficulty on many aspects: schooling, health, contacts with her parents and socialization. [ 16 ] Indeed, due to her health issues, she had to strictly remain at home to avoid the risk to be contaminated. Doing so, she had to continue the home schooling despite the reopening of schools in September 2020. During that time, she obviously has no contact with other children of her age. [ 17 ] She participated in a speech therapy, and she had been able to improve her pronunciation. [ 18 ] In August 2020, her health declined.

She was put on a waiting list for a kidney transplant in October 2020. [ 19 ] The same month, she started the dialysis to help her before she could receive the transplant. This process required an adaptation for her and a lot of time at the hospital. Regarding the transplant, the delay is always long, but it is much longer currently due to Covid- 19, because there is a risk of infections and the transplant could be rejected. Doing so, despite the fact she is a priority on the list, the delay could be long.

The stability of her living situation remains a condition for her to receive this transplant, because before this transplant an evaluation of her mental state could be done. [ 20 ] In March 2021, she was diagnosed with glaucoma in her right eye, the only one with vision. The doctors confirmed that there is not a link between the dialysis and the glaucoma. She received a first surgery to stop the progression and the second one was done on May 18, 2021.

She is waiting for the third one. [ 21 ] Since the last decision, and considering the ambivalence of the foster family already noted at that time, the DYP workers met the foster parents many times. They only gave their final position on May 11, 2021, and confirmed that they will not continue to foster X on a long term basis.

However, knowing that she has to be stable to continue to be on the waiting list for the transplant, they accepted to foster her until the end of December 2021. [ 22 ] During the measures, different situations continued to raise concerns about their involvement, so their decision taken recently is not surprising. [ 23 ] The foster parents explained that they would be interested to continue to foster X until majority if they could have the complete parental authority on her because they do not want to deal with the parents nor with the DYP.

They also mentioned being interested to adopt her, but the DYP had to clearly explain to them that it was not an option. [ 24 ] The DYP worker looked for another foster family since the last decision. One had been found, but after meeting with the medical team, they refused to commit themselves. Currently, another one is in the process to be evaluated. The future foster family will

have to meet with the medical team to be informed about the entire situation and also have to be able to quarantine during at least 3 months with the child when she will receive her transplant. These conditions make the research of foster families more difficult. [ 25 ] The parents moved to a bigger house with their 5 other children. The mother did not start working yet, but the father found a seasonal job. They are not able to move to City A to be closer to their daughter for the same reason as the one mentioned in the previous decision.

That being said, they get more involved in the health situation of their daughter and they communicate regularly with the doctors and between those conversations, they communicate with the DYP worker to be kept aware of the medical situation. They consented to all medical treatment as soon as it has been been requested to them. [ 26 ] A calendar of contacts was made and X spoke with her parents and siblings once a week.

By the end of September 2020, the DYP offered to add one more contact during the week, but due to the beginning of the school year and the father’s new job, it was not possible for the family to be available. X as well as her family were happy with those contacts which were positive. [ 27 ] In August 2020, due to X’s medical condition, an urgent contact was organized in City A with the parents and Y, one of her sisters. During that visit, 3 contacts were supposed to take place, but only one occurred because the foster parents saw that Y had a runny nose.

The parents took steps to have Y babysat, but the foster parents refused again and were not reachable during that time. After, they justified themselves by the facts that the medical team would have not approved this contact and that a medical appointment was scheduled during that time which was wrong.

The DYP worker had to intervene once again with the foster parents. [ 28 ] During the only contact, the foster parents and the parents argued in front of the child, the foster father reproaching the parents being unable to take care of their daughter and the parents reproaching the foster parents to make obstruction to their contacts. X was affected and did not speak to her foster father for a few days. [ 29 ] No contacts took place between May to September 2020 due to the Public Health restrictions, but another contact was organized in September.

The DYP worker would like to plan another visit before the transplant because after, it will be impossible for a few weeks. [ 30 ] In September, the parents gave a cell phone to X, but interventions had to be made because she communicated a lot with her brothers and sister during inappropriate periods. [ 31 ] Despite the conflict between the parents and the foster parents, X developed strong bonds with her foster parents. With them she learn to speak Spanish. She understands and she is able to reply to them in Spanish.

She continued to develop such bonds during the last year even if the situation was already more than fragile. The foster parents still have the intention to go back living in their country of origin. It is not in her best interest to continue to develop such bonds with those persons knowing that they renounced to foster her on a long term basis, and on the other hand, she has to remain there because her stability is the condition imposed by the medical team for her to be maintained on the waiting list for the transplant. [ 32 ] Currently, X ignores everything about her foster parents’ intention.

As long as a new foster family has not been found, the medical team recommends saying nothing to X to maintain her good mental state. Indeed, a psychological evaluation will have to be performed before the transplant and nothing wrong should be raised in this assessment. [ 33 ] If no foster family is found, currently there is no “plan B.” All options are possible including a centre. [ 34 ] After the transplant, the living conditions of the child will remain very difficult and should prevent her from being able to live in the North except maybe for visitation.

Indeed, she suffers from many diseases which render her life very complicated and preventing her from being totally autonomous. Over her kidney issues, she is deaf and she has vision issues and could become blind. Analysis [ 35 ] The situation of the child remains endangered due to her medical conditions which did not improve since the last decision. [ 36 ] The saddest in this situation is the fact that due to her medical condition she has to be separated from her family and her community.

She was taking care by her foster parents and she developed strong bonds with them, but unfortunately, on their side, those bonds were not enough to force them to continue their commitment.

Since more than one year, they are thinking about giving up, and during that time X continue to develop her attachment towards them. [ 37 ] Luckily, she is ignoring everything about what is coming and the Court is confident that the DYP and the medical team will proceed to the transfer in an adequate manner, but for this young child, it will be another traumatizing situation. [ 38 ] In the last decision, the Court insisted on the importance to maintain the bonds between the parents and the child.

Despite this decision, the DYP worker had to intervene again with the foster parents who made obstruction again. [ 39 ] Currently, the medical condition of the child is fragile to the point that it is difficult to organize contacts. Indeed, the child has auditory and visual issues which render the contact by phone and by videoconference very difficult. And also, the contacts in person will probably be difficult due to the coming transplant. [ 40 ] That being said, as mentioned at the hearing, one aspect should be clear: the contacts will happen no matter what the foster family’s opinion is.

The only possible reason to refuse contacts by electronic ways or in person is a medical reason or an impossibility from the child to participate. In any way, it should be due to a refusal or an obstruction from the foster parents. [ 41 ] X is missing her parents and siblings a lot.

Specific measures will have to be implemented to allow her, at least, to see them or to hear them when she will be in quarantine after her transplant. [ 42 ] Without knowing when the transplant will be done, the Court will maintain the same frequency of contacts and this frequency will have to be adjusted according to the conditions given at paragraph 40.

FOR THOSE REASONS, THE COURT: [ 43 ] GRANTS the application; [ 44 ] DECLARES that the security and development of the child X, born on [...], 2013, are still endangered; [ 45 ] ENTRUSTS the child to a foster family, chosen by the institution operating a child and youth protection centre; [ 46 ] ORDERS the Director of Youth Protection to actively look for a new foster family interested to receive the child on a permanent basis; [ 47 ] ORDERS that the parents periodically report to the Director of Youth Protection on the measures they apply in their own regard or in their child’s regard to put an end to the situation in which the security and development of the child are endangered; [ 48 ] ORDERS that the parents take an active

part in the implementation of any of the measures ordered by the Court; [ 49 ] ORDERS that the parents be maintained informed of the medical situation of their daughter on a regular basis (minimally once a month), by the Youth Protection worker; [ 50 ] AUTHORIZES frequent contacts between the parents and the child; [ 51 ] ORDERS that a minimum of one weekly contact be organized by video calls or at least by phone, between the child and the parents; [ 52 ] AUTHORIZES 4 physical contacts per year to be organized after taking into consideration the medical appointments and the capacity of the parents; [ 53 ] ORDERS the Director of Youth Protection to organize the calendar of contact with the parents and the foster parents, the whole according to the conditions mentioned in paragraph 40 of the present decision; [ 54 ] ORDERS that the child receive specific health care and services required by her condition; [ 55 ] ORDERS that a copy of the present decision be communicated to the Director of Youth Protection collaborators in the region A and B; [ 56 ] ORDERS that a person working for an institution or body, provide aid, counselling and assistance to the child, the family and the foster family; [ 57 ] ENTRUSTS the situation of the child X , to the Director of Youth Protection A, who shall then see that the measures are carried out; [ 58 ] THE WHOLE until May 31, 2022. __________________________________ PEGGY WAROLIN , J.C.Q.

Me Adèle Cyr, attorney for the Director of Youth Protection Me Angèle Tommasel, attorney for the child Me Cassandra Neptune, attorney for the parents Date of hearing: May 27, 2021