2011 QCCQ 9454, 2011 QCCQ 9454

Protection de la jeunesse — 112859 2011 QCCQ 9454 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth chamber No: 640-41-001201-091 DATE: June 7, 2011 ______________________________________________________________________ BY THE HONOURABLE DANIEL BÉDARD, J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X , born on [..], 2009 [SOCIAL WORKER 1], youth protection worker, duly authorized by the Director of Youth Protection A, working in City A Applicant -and- A, residing and domiciled in City A, Quebec, district A Mother -and- B, residing and domiciled in City A, Quebec, district A Father ______________________________________________________________________ JUDGMENT (

Section 95 ( par.1) and 75 , Youth Protection Act , R.S.Q. c. P-34.1) ______________________________________________________________________ I - INTRODUCTION [ 1 ] The Director of Youth Protection demands the review of the decision rendered on July 15, 2010, concerning X, born on […], 2009. [ 2 ] The parents are present and represented. The father is detained. II - ISSUE TO RESOLVE [ 3 ] In the case at bar, there is no litigious issue considering the admissions of the parents and their consent to the measure recommended by the Director of Youth Protection.

III - ANALYSIS OF THE FACTS AND DECISION [ 4 ] The last decision of the Court was rendered on July 15, 2010. At the time, the mother was serving a jail term and the father was under a probation following a conditional sentence. He was in opposition with the Director's project to have the child declared eligible to adoption. [ 5 ] Consequently, the Court had ordered the foster care of the child in a foster family for a period of six months, namely considering the progress made by the father as for sobriety and stability.

Also was considered the time needed by the Director of Youth Protection to prepare a demand of eligibility to adoption.

[ 6 ] On March 1, 2011, the Court suspended the review hearing until May 17, 2011. The Director of Youth Protection had not, according to the evidence, fully assessed the foster parents who were interested in fostering the child on a long-term basis. [ 7 ] Indeed the foster father had prior criminal convictions. [ 8 ] The evidence tendered consists of the testimonies of the social worker and the foster father. The social worker, responsible for the file since July 2010, affirms that the child has been living with the foster parents since the age of 3 months. He is loved and well taken care of.

The prior convictions of the foster father are related to episodes of conjugal violence and breaches. [ 9 ] Her assessment demonstrates that the foster couple is stable. There is no more conjugal violence and there is no alcohol consumption. The foster parents are interested, capable and available.

The testimony of the foster father, aged 51, convinces the Court that the episodes of conjugal violence are behind and that he is not only capable of assuming parental responsibilities but also authentically attached to the child. [ 10 ] The child has now been assumed by the couple for nearly two years and is considered a member of the family. [ 11 ] The evidence is completed by the review report that further establishes the involvement of the foster parents and the harmonious development of the child, for whom the foster parents are his parents. [ 12 ] The biological parents are in agreement with a long-term foster care measure and approve the foster parents chosen by the Director of Youth Protection. [ 13 ] Can the prior convictions of an adult constitute an obstacle to his selection by the Director of Youth Protection, as a foster parent? [ 14 ] The conditions of life in Country A can be very difficult and are often extremely difficult from a socio-economical point of view.

Overcrowding in houses, rareness of employment, geographical isolation and cultural differences bring about numerous challenges that result in tensions expressed in various forms ranging from alcohol abuse to conjugal violence. [ 15 ] Thus, it is not rare that individuals experienced instability at one point in their life, whether personal, familial or conjugal. This instability will often result in criminal accusations and hence convictions. [ 16 ] For the Court, the existence of prior criminal convictions cannot automatically constitute an obstacle to the selection of an adult as a foster parent.

The nature of the prior convictions have to be examined, in order to determine their link associated with the risk for the child. As example, a prior conviction in conjugal violence is quite different from a conviction for a sexual assault. Furthermore, must also be assessed the achieved stability of the adult since his last convictions. [ 17 ] For the Court, to automatically exclude a person as a foster parent because of prior convictions, even if numerous, could equal to discrimination.

One has to realize that the existence of prior criminal convictions cannot be analysed nor viewed with the same clinical parameters as elsewhere without resulting in a bias analysis. [ 18 ] A complete and detailed evaluation of the foster parents with prior criminal convictions is thus necessary before rejecting their demand. Automatism must be avoided. [ 19 ] In the case at bar, the evidence convinces the Court that the development and security of the child are not at risk with the foster parents.

No incident has been reported since they foster the child and as stated previously, they consider the child as their child. [ 20 ] Access and visitation rights should, if the case, be exercised under the supervision and according to the modalities determined by the Director of Youth Protection. [ 21 ] The demand of the Director to grant to the foster parents the exercise of certain attributes of parental authority is well founded, considering the situation of the biological parents and the involvement of the foster parents. [ 22 ] FOR THESE MOTIVES, THE COURT: [ 23 ] GRANTS the demand; [ 24 ] MAINTAINS the security and development of the child in danger; [ 25 ] REVIEWS the decision rendered on July 15, 2010; [ 26 ] ORDERS the following measures in accordance with

section 91 of the Law:

a) the foster care of the child with Mrs. C and Mr. D, foster parents chosen by the Director of Youth Protection, starting on May 17, 2011 until the child reaches the age of majority;

b) that a person working for an establishment or organism provide aid, counsel and assistance to the foster parents and the child, during the foster care measure; [ 27 ] WITHDRAWS from the parents the exercise of the following attributes of parental authority: consents and authorizations for medical services or interventions, travelling authorizations including the passport demand and school related matters; [ 28 ] ORDERS that access and visitation rights of the parents be exercised under the supervision and according to the modalities determined by the Director of Youth Protection;

[ 29 ] ENTRUTS the situation of the child to the Director of Youth Protection, for the purpose of executing the measures ordered by the Court. __________________________________ DANIEL BÉDARD, J.C.Q. Me Jean-Claude Latraverse Lawyer for the child Me Alexandre Cimon Lawyer for the D.Y.P. Me Sarah Plamondon Lawyer of the mother Me Angèle Tommasel Lawyer of the Father Date of hearing: May 17, 2011