2012 SKPC 57, 2012 SKPC 57

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 057 Date: April 2, 2012 Location: Fort Qu ’Appelle _____________________________________________________________________________ IN THE MATTER OF a hearing under THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF A.L., born […], 2010 Appearing : Donna L. Taylor For the Ministry of Social Services No one appearing For the parents The parents and child are identified by initials in order to protect their identities. JUDGMENT M. HINDS , J INTRODUCTION [ 1 ] The Ministry of Social Services seeks an order of this Court finding A.L., age 16 months, to be a child in need of protection

pursuant to s. 11 (

b) of The Child and Family Services Act , S.S. 1989-90, c. C-7.2 ("the Act ") and for an order placing this child in the permanent care of the Minister pursuant to s. 37(2) of that Act , with a view to arranging for the adoption of her. [ 2 ] The child’s mother is H.L., age 25, and her father is D.M., age 26. The child, A.L. was born on […], 2010 at the Regina General Hospital. A.L. was born with very high toxicity levels and immediately suffered withdrawal symptoms in hospital due to the methadone that H.L. had been taking while pregnant.

The child ’ s mother, H.L. left the hospital on or about November 27, 2010 without the child. The child remained in hospital until January 8, 2011 while she was being weaned off morphine that was administered to her to deal with her withdrawal symptoms. Concerns arose about the parent ’ s ability to care for their infant daughter. The Ministry of Social Services apprehended the child on November 29, 2010. On or about January 8, 2011, the child was transferred to a foster home. [ 3 ] Neither of the parents of the child appeared to oppose the application before the Court on March 8, 2012.

Legal counsel for the mother H.L. appeared on March 8, 2012 and obtained leave from the Court to withdraw as he had, despite his best efforts, been unable to obtain instructions from his client. Legal counsel assured the Court H.L. was fully aware of the court date. He was granted leave to withdraw as counsel. On January 11, 2012, the Ministry had the father, D.M. personally served with a notice of these proceedings. On March 8, 2012, the Ministry applied to proceed with the hearing in the absence of H.L. and D.M.

The Court concluded that the mother, H.L. and father, D.M. had notice of these proceedings and chose not to appear. The child in question had been apprehended over one year earlier, shortly after birth, prior to discharge from the hospital. The Court determined that it was in the best interests of the child that the case proceed. The Ministry presented viva voce evidence from psychologist, Mr. Francis Stewart and social worker, Patricia Hickie-Schaeffer and filed a number of documents, all of which are admissible in evidence . [ 4 ] The issues raised by this application, with respect to the child, are: 1.

Is the child in need of protection? 2. If so, what is the appropriate order to make for the child? [ 5 ] In this case I decided that A.L. is a child in need of protection. I ordered that A.L. be placed in the permanent care of the Minister pursuant to s. 37(2) of that Act , with a view to arranging for the adoption of her. LEGISLATION [ 6 ] The Ministry claims that A.L. is in need of protection.

Section 11 (

a) and (

b) of the Act are relevant subsections in this matter, and read as follows: 11. A child is in need of protection where: (

a) as a result of action or omission by the child’s parent: (

i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer serious impairment of mental or emotional functioning; (iii) the child has been or is likely to be exposed to harmful interaction for a sexual purpose, including involvement in prostitution and including conduct that may amount to an offence within the meaning of the Criminal Code ; (iv) medical, surgical, or other recognized remedial care or treatment that is considered essential by a duly qualified medical practitioner has not been or is not likely to be provided to the child; (

v) the child’s development is likely to be seriously impaired by failure to remedy a mental, emotional, or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (

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...

[ 7 ] In the event that I find A.L. to be in need of protection, I must then make an appropriate order under s. 37 of the Act . The relevant portions of that

section are: 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 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 permanently committing the child to the minister.

(3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (

a) a child is in need of protection; and (

b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child were permanently committed to the minister; order that the child be placed in the custody of the minister until the child attains the age of 18 years.

(4) In making an order pursuant to subsection (1), (2) or (3), the court: (

a) shall consider the best interests of the child; (

b) may consider the recommendations of the officer mentioned in subsection 36(2); and (

c) may consider the recommendations of a chief, a chief’s designate, or an agency that appears in court pursuant to subsection 11.

(5) In making an order pursuant to subsection (1) or (3), the court may: (

a) impose any terms and conditions that the court considers appropriate; and (

b) include in the order a provision respecting access to the child.

(6) If the court, in making an order pursuant to clause 1(

a) or (b), orders supervision of the child by the minister as a term or condition of the order, the period of supervision shall not exceed one year. [ 8 ] In considering the “best interests of the child”, subsection 4 of the Act requires me to consider the following in determining the best interests of the child: (

a) the quality of the relationships 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 ] All of this is to be done keeping in mind the purpose of the Act , set out in s. 3 , which 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. [10] In deciding whether the child is in need of protection I am mindful of the words of Mr. Justice Baynton in the case ofSaskatchewan (Minister of Social Services) v. E(S), (SK KB), [1992] 5 W.W.R. 289 at para. 18 where he said this: ... [T]he issue is not whether the children might be better off, or happier, or obtain a better upbringing in the care of other "parents" thanwith their natural parents. If that were the criterion for a protection order, not many children would remain with their natural parents.

Theissue, however, really is whether the children concerned are receiving a level of parenting care that is below the minimal standard thatwill be tolerated in our society. FACTUAL BACKGROUND [11] H.L. has given birth to three children, including A.L., the subject of this application. At age 17, H.L. first gave birth to D.L.,born […], 2003. Her next child was B.L., born […], 2004. Both D.L. and B.L. were apprehended by the Ministry of Social Services in2004. B.M. is the father of D.L. and B.L. In the fall of 2004 the Ministry apprehended D.L. as a result of medical concerns respectingthe child.

In particular the Ministry determined that D.L. was malnourished, severely dehydrated and had severe eczema that was notbeing treated. The Ministry also placed a birth alert respecting H.L.’s next child B.L. B.L. was apprehended by Ministry staff at birth on[…], 2004. H.L., the mother and B.M., the father of the two children underwent a parenting assessment and both had opportunities tovisit the children separately as they were not living together as a couple. The Ministry determined that the two children were best takencare of by their father, as H.L. was living a very transient lifestyle at the time.

The two children were placed with their father B.M. on asix month supervision order. The placement worked out. The children D. L. and B.L. live with and are cared for by B.M. TheMinistry’s involvement with B.M. and the two children ceased in 2006. H.L. does not have ongoing contact with these children. [12] H.L. and D.M. met in 2009. In 2010, H.L. became pregnant by D.M. A.L. was born at the Regina General Hospital on […],2010. At the time of her birth A.L. had a high level of toxicity due to methadone, which her mother H.L. had been taking during herpregnancy.

Social Services were advised of this situation and became involved. Health care workers gradually weaned A.L. frommethadone in the hospital. H.L. left the hospital without A.L. on or about November 27, 2010. The health care workers did not hearfrom H.L. for several days thereafter. [13] The Ministry apprehended A.L. on December 10, 2010. The notice of a protection hearing respecting A.L. was served onH.L. and D.M. The Ministry made several efforts to meet with H.L. and D.M. On January 3, 2011, Ministry staff met with H.L. andD.M. at H.L.’s mother’s home in Lipton, Saskatchewan.

D.M.’s mother, C.D. was also present. It appears that H.L. and D.M. did notfully appreciate that they had abandoned their child, A.L. at the hospital. This is likely due to cognitive and mental health issues whichthe parents struggle with themselves. [14] A.L. was discharged from the Regina General Hospital on or about January 8, 2010. Since that time A.L. has been in the careof foster parents. H.L. and D.M. have had some visits with A.L. since January 8, 2010.

Despite attempts by Ministry staff to facilitateweekly visits between H.L., D.M. and A.L., the visits have occurred on a sporadic basis rather than on a weekly basis. The evidencereveals that while Ministry staff arranged for a number of supervised visits with A.L. at a Social Services office, H.L. and D.M. did notattend all these planned visits with their infant child. [15] H.L. and D.M.’s visits with their child have dropped off over time. H.L. and D.M. last spent time together with A.L. during avisit in the month of June 2011. D.M. has not spent time visiting the child since the visit in June 2011.

H.L.’s next and most recent visitwith A.L. was on December 2, 2011. [16] The Ministry also arranged for a parenting assessment to be conducted on H.L. and D.M. by a psychologist, Mr. FrancisStewart. Mr. Stewart was qualified at the hearing as an expert to provide opinion evidence in the area of parenting capacityassessments. Mr. Stewart initially met with H.L. and D.M. on June 2, 2011. At that time Mr. Stewart did a joint interview with H.L. andD.M., a clinical interview of H.L. alone and began some psychological testing of D.M. Mr.

Stewart next met with D.M. on June 15,2011, at which time the psychological testing was completed and a clinical interview was conducted. Despite his many efforts to seeboth D.M. and H.L. again for the purpose of completing his parenting assessment, Mr. Stewart did not see either D.M. or H.L. again. H.L. did not attend five sequential appointments which Mr. Stewart had arranged with her following June 2, 2011. H.L. and D.M. were

scheduled to visit with A.L. on July 26, 2011, for the purpose of having Francis Stewart observe them interact with their child. Although Mr. Stewart spoke to both H.L. and D.M. on July 25, 2011 for the purpose of confirming the visit with the child the next day, neither attended the visit on July 26, 2011. H.L. ’s STATUS [ 17 ] The evidence reveals that H.L. is 23 years of age, is of low average intelligence (I.Q. of between 75 to 85) has a history of substance abuse and lived a less than stable lifestyle. H.L. is unemployed and receives social assistance.

H.L. has not shown a sustained commitment to maintaining contact with her daughter, A.L. I accept Ms. Hickie-Schaeffer’s description of H.L.’s thinking as being self- centred and lacking insight into how to properly care for a child. H.L. and D.M. ceased living together sometime in October 2011, apparently as a result of an incident involving some domestic violence. A condition of no contact between the two exists. [ 18 ] The evidence reveals that H.L. did not complete the parenting assessment and maintain regular contact with the child.

H.L. did not see the child A.L. for a period of six months from June 2, 2011 to December 2, 2011. During her last visit with A.L. on December 2, 2011, she attended the Social Services office with a male friend named Max, who was unwilling to reveal his surname. The evidence also indicates that H.L.’s mother does not want to be involved in raising A.L. [ 19 ] Mr. Stewart testified that as a result of his interview with H.L. he was of the view that H.L. was not truthful about a number of things including her childhood, substance abuse and a past incident of self harm. I accept Mr.

Stewart’s conclusion that while H.L. loves A.L. and expressed a desire to parent A.L., she does not have a strong support system and her perception of herself as being “really good at parenting” is delusional. I further accept Mr. Stewart’s opinion that if A.L. were placed with H.L. tomorrow, A.L.’s social, physical and emotional needs would not be met and that H.L. is unable to successfully assume the role of a parent. D.M. ’s STATUS [ 20 ] The evidence reveals that D.M. is 26 years of age and has been diagnosed with schizophrenia. He is under the care of a physician and takes medication.

As a result of his schizophrenia he is permanently disabled and lives with his mother. I accept Mr. Stewart’s opinion that D.M. is unable to live independently and does not have the skills and abilities to parent a child independently now or in the future. The evidence also reveals that D.M. did not complete the parenting assessment. In addition, he did not maintain regular contact with the child. The evidence also indicates that D.M.’s mother does not want to be involved in parenting A.L. [ 21 ] Mr.

Stewart was of the view that D.M.’s schizophrenia seems to be largely under control with medication, however, he observed that D.M. displayed some residual tangential speech which involved jumping from topic to topic without addressing the question that had been posed to him. Mr.

Stewart’s psychological testing of D.M. reveals inter alia : D.M. felt when the child A.L. was nine months of age, she was putting high demands on him, despite the fact that he spent very little time with the child (Parenting Stress Index), D.M. rated his parenting performance at 92%, suggesting he was a highly effective parent and there was very little he could do to improve his parenting skills (Parenting Satisfaction Scale). THE CHILD ’S STATUS [ 22 ] A.L. is now 16 months of age. A.L. was treated successfully in hospital after her birth for methadone toxicity.

A.L.’s health has been monitored since she was released from the hospital on January 8, 2011. A.L. has been in foster care and appears to be in good health. Social Services worker, Ms. Hickie-Schaeffer, describes A.L. as being “a very smiley, easy going little girl who likes to laugh”. In addition, Ms. Hickie-Schaeffer testified that if the Court ordered that A.L. was to be placed in the permanent care of the Minister, she would be “very adoptable”. ANALYSIS Is the child, A.L. in need of protection?

[ 23 ] I am of the view that the child, A.L. was in need of protection at birth and remains in need of protection. A.L.’s heath was endangered from the time of her birth. A.L. was born with toxic levels of methadone in her. As a result A.L. had to remain in the hospital a month and one half in order to be stabilized and weaned off methadone. At the present time A.L.’s health is good, however it continues to be monitored.

In my view the Ministry has established on the balance of probabilities that the child’s parents H.L. and D.M. are unable to provide a level of parenting care for A.L. that is at or above the minimal standard that will be tolerated in our society. H.L. has cognitive limitations and a lifestyle that impedes her ability to properly parent A.L. This is illustrated by her inability to maintain regular visits with the child. D.M. has a mental health condition which although presently stable, also impedes his ability to properly parent.

This is also illustrated by his inability to maintain regular visits with the child and his unrealistic perception of his ability as a parent. Despite the Ministry’s efforts H.L. and D.M. have had limited contact with A.L., particularly in the past ten months. [ 24 ] I also note that neither H.L. nor D.M. appeared at this trial or provided any evidence. I have no hesitation in concluding that A.L. is a child in need of protection purs uant to s. 11 (

b) of the Act . I am of the view that A.L. would be at risk of incurring serious harm if returned to the care of either or both of H.L. and D.M. Moreover, there is no adult person who is able and willing to provide for the child's needs, and physical and emotional harm to the child is likely to occur. If the child is in need of protection, what is the appropriate order to make for the child? [ 25 ] The next question to be addressed is what is the appropriate order?

This requires a consideration of the options available as set out in s. 37 of the Act . [ 26 ] I do not find that any of the options described in s. 37(1) would be appropriate in these circumstances. There is no basis upon which A.L. would be returned to either H.L. or D.M., and there is no indication that a temporary order of any kind would be beneficial. H.L. and D.M. each have their own conditions which negatively affect their ability to proper parent A.L. Both parents have had less contact with A.L. over time.

A.L. needs some stability and permanency in her life which cannot be offered by her natural parents. [ 27 ] I am satisfied that an order under s. 37(2) permanently committing A.L. to the Minister is the appropriate order. It would appear that with this order being made an adoption is likely for this little girl. This, of course, will be a decision for the Ministry after an application and appropriate investigation of the prospective adoptive parents. CONCLUSION [ 28 ] In

summary, I find that A.L. continues to be a child in need of protection. I find that none of the orders described in s. 37(1) are appropriate. I make an order pursuant to s. 38(2) permanently committing A.L. to the Minister. ________________________________ M. Hinds, J