2015 SKPC 89, 2015 SKPC 89

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 089 Date: July 21, 2015 Location: Tisdale _____________________________________________________________________________ IN THE MATTER OF A HEARING UNDER THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF M.A.J.W., (Milly) born April 6, 2009 D.N.R.W., (Diane) born January 12, 2011 P.W.R.W., (Paul) born August 23, 2014 - and - Appearing: H. Juorio For the Ministry of Social Services R. Newman, Q.C. For the mother, A.W. Unrepresented (the fathers did not appear) For the fathers, K.A., M.E., M.Q. JUDGMENT I.J.

CARDINAL , J The mother and children and relatives are identified by initials and pseudonyms in order to protect their identities.

[ 1 ] The three children, M.A.J.W., (Milly) born April 6, 2009, D.N.R.W., (Diane) born January 12, 2011 and P.W.R.W., (Paul) born August 23, 2014, were all born to A.W., (Allison) but each had a different father. None of the fathers has been involved with their children.

Despite their inquiries, the Ministry of Social Services (Ministry) has had no contact with the fathers and was granted leave to dispense with service of this hearing upon them. [ 2 ] The Ministry has applied to have all three children become permanent wards of the state pursuant to the provisions of The Child and Family Services Act , S.S. 1989-90, c. C-7.2 (Act). Three witnesses were called by the Ministry: the Family Service Worker, Lori Fielder; S.E. (Susan) the current caregiver for the two girls; and Dr. T.

Greenough who was qualified, by agreement of counsel, as an expert witness to provide opinion evidence in the area of parenting capacity assessments as well as custody and access assessments. [ 3 ] The mother, Allison, requests the children be returned to her to parent, with the assistance of her father, R.W. (Randall). Both testified in that regard. ISSUES 1. Is each of the children, a child in need of protection? 2. If so, is a permanent order the appropriate disposition with respect to each of the three children? LEGISLATIVE REGIME [ 4 ]

Section 3 of The Child and Family Services Act outlines the purpose of the legislation: 3 The purpose of this Act is to promote the well-being of children in need of protection by offering, wherever appropriate, services that are designed to maintain, support and preserve the family in the least disruptive manner. [ 5 ] The Ministry relies upon s. 11 (

b) of the Act which provides : 11. A child is in need of protection where: (

b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur. [ 6 ] In the event I find a child to be in need of protection, I must then make the appropriate order under s. 37 of the Act : 37(1) Subject to subsection (2), if the court determines that a child is in need of protection, the court shall make an order that the child: (

a) remain with, be returned to or be placed in the custody of his or her parent; (

b) be placed in the custody of a person having a sufficient interest in the child; or (

c) remain in or be placed in the custody of the minister for a temporary period not exceeding six months.

(2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanentlycommitting the child to the minister. [7] In making an order under s. 37 I am directed by s. 37 (4) to consider the best interests of the child. In addition, I may considerthe recommendation of “the officer” who is the family service worker in the case before me, but I am not bound by thatrecommendation. [8]

Section 4 of the Act sets out the factors I must consider when determining the best interests of the child: 4. Where a person or court is required by any provision of this Act other than subsection 49(2)to determine the best interests of a child,the person or court shall take into account: (

a) the quality of the relationships that the child has with any person who may have a close connection with the child; (

b) the child’s physical, mental, and emotional level of development; (

c) the child’s emotional, cultural, physical, psychological and spiritual needs; (

d) the home environment proposed to be provided for the child; (

e) the plans for the care of the child of the person to whom it is proposed that the custody of the child be entrusted; (

f) where practicable, the child’s wishes, having regard to the age and level of the child’s development; (

g) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; and (

h) the effect on the child of a delay in making a decision. [9] As summarized by Wilkinson, J. , in Re V.J.C., 2009 SKQB 395 [4] The Child and Family Services Act, S.S. (1989-90), c. C-7.2 (the “Act”) sets out clear objectives. If a child is found in need ofprotection, the Court is required to look firstly at s. 37(1) which requires a determination of whether or not the children should bereturned to a parent, placed with a person of sufficient interest, or with the Minister for a temporary period.

If no order is available unders. 37(1), then pursuant to s. 37(2), the Court shall make a permanent order placing the children with the Minister. However, s. 37(3)provides an exception to s. 37(2), namely, where the Court is of the view that an adoption plan is unlikely due to reasons such as the ageoft he child or other circumstances. Where the Court is of that view, it may make a long term order placing the child in the custody of theMinister until the age of 18. ANALYSIS [10] Much of the evidence is not in dispute. The Ministry first became involved with Allison in November, 2011.

This was withrespect to the two oldest children, Milly and Diane, as Paul had not yet been born. Prior to the Ministry’s involvement, Allison had theassistance of both her mother and father in helping with the children. Unfortunately, her mother passed away and Allison and the twogirls moved in with Randall. The Ministry received an anonymous report that his home was unsafe due to clutter and that the childrenwere not being properly fed or looked after. [11] Ministry officials investigated and found the home to be unsafe.

They felt the father was a hoarder and this contributed to thedisarray found in the home: small items laying about; clothing, garbage and food littering the residence. Allison agreed to find a newresidence and the Ministry worked with her in that regard. She signed a Parental Service Agreement (PSA) and she and the Ministry setabout locating a new residence. [12] In March 2012 Allison moved into a low income housing unit and her father moved into another residence close to it as hisformer rental residence was sold. Over the course of the next year, Allison and her two oldest children remained in this residence.

Numerous Parental Service Agreements were made to assist Allison in managing her home and children. The Parent Aids would assistAllison with chores, show her how to do things such as cleaning and organizing the house; making appointments and getting herself and

the children to them and other sundry, routine matters. [ 13 ] The Ministry started with a PSA that allowed for assistance from a worker five days a week for two hours each day. It became apparent Allison could not keep on top of things in May 2012, when the low income housing authority gave notice of eviction due to the dirty and messy state of her residence. The Ministry stepped in and increased the assistance Allison received through the Parent Aids, thus allowing her to stay in the home.

The hours were increased to allow the Parent Aide to work closer with her to provide structure, basic house cleaning skills, and reinforce organizational skills. [ 14 ] Over the course of her involvement with the Ministry from 2011 to 2013, six Parent Aides came and left as they found it extremely difficult to work with Allison. It appeared to them that she expected them to do the work while she did other things such as watch television or play on her cell phone or computer.

She did not seem to internalize or independently use any of the skills she was being taught despite numerous, repeated attempts by the Parent Aids in that regard. [ 15 ] The children were not faring well in this environment. Various home visits revealed Allison was not able to keep up with the two children or multi-task. She was often overwhelmed with caring for the children, getting them to appointments, keeping the house clean and preparing proper meals.

Workers noted that she had hoarding tendencies and the house was in a continual state of uncleanliness and disarray making it a very dangerous environment for the children as soiled diapers, food, garbage, household items and small objects such as batteries, laid about the residence. Knives and medication were left within reach of the children. [ 16 ] Both girls showed signs of developmental delays in speech and in achieving milestones. Diane would bang her head and suffered nose bleeds and would not eat; both girls were prone to diarrhea. Allison did not maintain proper hygiene of herself or the children.

She had to be told to cleanse and bathe herself and the children. It was apparent to the workers that Allison was developmentally delayed and needed constant, consistent supervision and attention. She was also suffering from depression which impeded her ability to function. [ 17 ] Further, they noted she was vulnerable as men often took advantage of her, not only romantically, but by convincing her to give them money, usually over the internet. The Ministry is concerned that Allison’s vulnerability makes the children vulnerable.

I agree with that assessment. [ 18 ] Despite numerous and repeated attempts to assist Allison, the Ministry felt she was not capable of caring for the two girls and removed them from the home in March 2013. The two girls were placed into foster care and subsequently into the care of Susan, a close relative of Allison’s. In August 2014, Allison gave birth to a baby boy, Paul. He was immediately apprehended and placed into the care of the Ministry. [ 19 ] Susan is a married woman with five other children.

It is clear from her testimony that she cares greatly for the two girls, understands that Allison loves them and encourages and allows her to visit them whenever possible. Allison knows she can phone or text Susan to arrange for a visit anytime. While Allison usually visits once per week, her father, Randall, only comes about once every two months to see the girls. [ 20 ] Since the girls have come into her care, Susan has noticed changes in their behaviour and personalities. When Milly first came to her home, she was happy for the most part, a bit underweight, but was not potty trained.

It took her a while to get into a routine but Milly has now settled in to their home. She is doing well in school and is getting help with her speech through the school. Her overall health is good but her fine motor skills need some work. [ 21 ] The younger girl, Diane, was also happy, a little underweight, weaned from the bottle, but not potty trained. Susan testified that Diane’s overall health is good and her weight has increased. She still has problems talking and will not start a conversation although she will participate.

She has issues with her foot and sees a specialist. [ 22 ] Ministry workers observed the girls hygiene, overall health and speech have improved while in Susan’s care. The workers also observed that soon after coming into foster care, Diane stopped banging her head.

[ 23 ] I found Susan to be very forthright and upfront with her evidence. Clearly she loves and wants to parent the two girls and will not prevent them from knowing their mother. She has known Allison for approximately 23 years and knows she has cognitive issues as well as issues with her personal hygiene. Her kindness toward Allison was displayed in court when Allison suddenly left the courtroom, apparently upset with the proceedings.

When court resumed, she was sitting beside Susan and being comforted by her. [ 24 ] It is both Susan’s opinion and that of the Ministry, that being designated a Person of Sufficient Interest will not provide the same structure and stability, or settle the issue of a home for the children as would a permanent order. Susan and her husband would like the two girls to stay with them and support the Ministry’s application to have the two girls permanently placed with the Ministry. A permanent order allows the girls to be adopted and Susan and her husband want to do so.

Even if they adopt the children, she testified Allison will be welcome to see the children as much as she wants [ 25 ] Dr. Timothy Greenough testified on behalf of the Ministry as to the Parenting Capacity Assessment he completed of Allison on September 30, 2014. During his evidence he referred to the assessment which is outlined in Exhibit P-2, Tab 1. [ 26 ] His assessment was thorough and well-written. He conducted interviews with Allison, the two girls, Susan and Randall. He also spoke to Allison’s mental health counsellor and a person from Community Living.

These interviews took place over a few weeks in August and September, 2014. [ 27 ] Dr. Greenough performed psychological testing and relied upon psychological tests performed by other psychologists in September, 2012. That earlier testing confirmed his findings. The psychological assessment conducted in September, 2012 (Exhibit P-2; Tab2) noted: The results of Ms. (A.W)’s cognitive testing (WAS-IV) indicate that her FSIQ is 51, indicating that she is functioning in the Extremely Low range of intellectual capabilities.

Her verbal cognitive (VCI = 56, 0.3 rd percentile), working memory (WMI = 55, 0.1 st percentile), and processing speed abilities (PSI = 69, 0.2 nd percentile), and her non-verbal cognitive abilities (PRI = 58, 0.3 rd percentile) are in the Extremely Low range. Performances on these indexes indicate that Ms. (A.W.) demonstrates difficulty maintaining attention and concentration while efficiently completing tasks, especially when there was a time pressure. Also, she is experiencing trouble maintaining information in immediate memory to use within a short time.

This cognitive profile suggests that Ms. (A.W.) will be quickly depleted of mental energy, tire easily, make more errors, and have trouble processing and learning new and complex material. Her performance also indicates that her verbal knowledge retained from education is extremely low. She also exhibits difficulty interpreting and organizing visually perceived information. . . . taken together, Ms. (A.W.)’s developmental history, Full Scale IQ, and deficits reported by the ABAS-II are consistent with a diagnosis of mental retardation, mild severity. [ 28 ] Dr.

Greenough used various tests to determine Allison’s cognitive and academic achievement and her personality and psychopathology. He then addressed parenting issues by asking her a number of questions and also partially administered Parent Awareness Skills Survey (PASS). He had to read the questions for her for many of the tests. Even during his home visits, it was clear Allison’s reading and comprehension skills were low as she had difficulty reading the instructions on the side of a box for cooking pasta. [ 29 ] At page 25 of his assessment, Dr. Greenough outlines Allison’s various strengths and weaknesses.

Her weaknesses are many and her strengths are few. At para. 31, page 27 of his assessment, he notes: 31. (A.W.) is, at this time, unable to care for her three children on her own. She requires assistance to care for herself let alone three young children. The writer is not convinced that (A.W.) will be able to acquire sufficient skills to adequately meet the needs of her children and provide them a safe environment. [ 30 ] Dr. Greenough makes five recommendations at page 28:

1. (M.W.), (D.W.) and (P.W.) should not be returned to (A.W.)’s care. The writer is concerned that if the children are returned to (A.W.)’s custody an incident would likely occur which would place them at risk. This development would require the children to be apprehended by the Ministry of Social Services. 2. (A.W.) should continue to receive support from the Community Living Division with the goal of enhancing her life skills. Over time (A.W.’

s) self-esteem may improve. 3. (A.W.) should continue to attend counselling and take the medications prescribed by her psychiatrist - physician. 4. The children should remain or be placed in the care of a relative. This would permit (A.W.) to have ongoing contact with her children. 5. (A.W.) should be advised about appropriate contraception in order to avoid future pregnancies. [ 31 ] The Ministry plan is to have all three children placed into the care of the Ministry as permanent wards.

As permanent wards, they will be able to be adopted and the Ministry will, in all likelihood, allow Susan and her husband to adopt the two girls. [ 32 ] Paul would also be placed for adoption. In that regard, the Ministry is currently considering the home of another close relative of Allison’s, in another province, as she and her husband are interested in adopting him. Further evaluations need to be completed, but it is the Ministry’s policy to have children placed with relatives where possible. [ 33 ] Randall is the father of Allison and grandfather to the three children.

He believes Allison should be given another chance to have the children live with her. Clearly he wants to help his daughter retain custody and control of her children. He testified that if possible, he would move into the basement of her home and assist her with taking the children for walks and playing with them. Inquiries about doing so, or buying a large house for all of them to live in have not been successful.

He also mentioned he may move into a seniors home, which would of course negate him from living with Allison and the children. [ 34 ] Allison testified that she continues to live in the low rental house by herself. She currently works six days a week, three hours per day for the town cleaning up garbage. Her Community Living worker helps her get groceries and makes meals. She goes to a community kitchen twice a week where they make a meal and can take the leftovers home. [ 35 ] She continues to see her Mental Health worker whenever she feels she needs to.

As well, she has a psychiatrist she sees about every three months for depression and continues with her medication. She states she is feeling good and that she has gained back some weight she lost previously. [ 36 ] She testified that after she had Paul in 2014 she had her tubes tied. [ 37 ] When asked in examination-in-chief why she wasn’t bathing her children she responded that they both wanted to bath at the same time but if she did that there is no room to wash their hair. She appeared to be guessing when she said that she bathed the children three times a week.

She testified the older daughter would cry because she sometimes got soap in her eyes so she tried to put her head back and got different shampoo. Although she admitted she did not like doing the dishes, she would put the dishes in the sink and then go to bath the children. After bathing the children she would have to wait for the hot water to get hot to do the dishes. [ 38 ] When asked about all of the items around her residence, she responded that she is going through her closets and has taken

[ 38 ] When asked about all of the items around her residence, she responded that she is going through her closets and has taken clothes she no longer wears to the thrift store. She is still working at cleaning up the basement. She said she doesn’t remember dirty diapers lying about or that there was excrement on the toilet as described by the parent aides.

She described how she cleans her children after they have gone to the bathroom and that if there were no wipes she would use a facecloth and then throw it in the garbage after using it. [ 39 ] She described the older girl who is now six, as having lots of energy and is not one to sit down. She said she sometimes comes home sad from school because the kids won’t play with her. She said her daughter has two friends who live beside her and she sometimes talks to them. [ 40 ] She described her youngest daughter as keeping to herself and wanting to play by herself and be alone.

She said that she has talked to her teachers at pre-kindergarten before Christmas and they tell her that her daughter is doing fine. [ 41 ] She testified she can visit her two daughters at Susan’s. She said that the children don’t want her to leave but she tells them she will come back. With respect to Paul, she visits with him once a week at the Ministry’s offices.

She says he is getting bigger and growing up. [ 42 ] When asked if she knew why she was here and that the Ministry was seeking to put her children into permanent care, she said she understood that the children won’t be in her care but she will be able to see them at the relative’s even if her relative adopts them. [ 43 ] She said that if Paul goes to another province to live with another relative that it would be hard on her as she may not get to visit very often. [ 44 ] She testified she would like to have the kids back but would be okay with whatever happens in court. 1.

Are each of the three children “a child in need of protection”? [ 45 ] I find that each of the three children, Milly, Diane and Paul are in need of protection. Unfortunately, despite her best efforts and the assistance of her father, Allison is not able to care for the children. Her efforts are hampered through no fault of her own. She was born with developmental delays and will always have deficiencies such that she simply cannot handle the challenges of raising two, let alone three, children.

I accept the evidence of the Ministry witnesses that she is overwhelmed by day to day issues and cannot provide for the children’s physical, mental and emotional needs. [ 46 ] Allison is prone to hoarding and leaves small items such as batteries and medication about the house that are dangerous for little children. Her intellectual vulnerability makes her a target for others, especially men, to take advantage of her romantically and financially. 2.

Is a permanent order pursuant to s. 3 7 (2) the appropriate order for each of the three children? [ 47 ] First, I must consider if the children can be returned to Allison’s care. I agree with Dr. Greenough’s assessment that Allison is not capable of caring for the children on her own. She was not capable of providing proper care even with the added assistance of Parent Aids and other agencies.

She cannot provide adequate food, shelter, or intellectual stimulus to, nor meet the basic needs of the children if they were to be left alone with her. [ 48 ] Allison’s low intellectual functioning prevents her from making good choices in relation to romantic partners and she is easily taken advantage of by those who do not have her or her children’s best interests in mind. Even if her father were able to move in with her, it would be of little assistance. He has his own hoarding issues to conquer and is not physically or mentally up to the task of co- parenting.

He would be able to provide occasional support but it would not be the ongoing, in-depth daily support Allison requires to maintain a home and proper lifestyle for herself and three small children. There is no reasonable possibility that Allison will ever be in the position to raise the three children on her own due to her cognitive abilities.

[ 49 ] I find that a permanent order is the appropriate order for each of the girls, Milly and Diane. I agree with Susan and the Ministry worker that designating Susan and her husband as Persons of Sufficient Interest is not conducive to the continued welfare and growth of the girls. They need the stability, continuity and consistency that comes from knowing where they will be for many years to come. They will have the love and care of relatives who will allow their mother and grandfather and other relatives to see them and participate to some degree in their lives.

While a designation as a Person of Sufficient Interest can address some of these concerns, the fact that they can be adopted into the family will also be a benefit to having a permanent order. In considering the best interests of Milly and Diane, I order that they be placed in the care of the Ministry on a permanent basis pursuant to s. 37(2). [ 50 ] Paul will also benefit from a permanent order as it allows him to be adopted. Currently he is in foster care, but the Ministry will continue its efforts to place him with a relative.

I realize that placement in another province may cause some inconvenience for Allison to see Paul but this may be unavoidable if he is to be placed in the care of a relative. It may be that the Ministry can make arrangements for her to travel or for him to be brought to her for visits. In all of the circumstances, a permanent order is appropriate and pursuant to s. 37 (2) I order that he be placed in the care of the Ministry on a permanent basis. __________________________ I. J. Cardinal, J