2021 QCCQ 10714, 2021 QCCQ 10714

Protection de la jeunesse — 215023 2021 QCCQ 10714 QUEBEC COURT CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] « Youth division »

N os : 455-41-001185-180; 455-41-001186-188; DATE : August 6, 2021 ______________________________________________________________________ BY THE HONOURABLE PASCALE BERARDINO, J.C.Q. ______________________________________________________________________ IN THE SITUATION OF : X Born on [...], 2015 Y Born on [...], 2014 [SOCIAL WORKER 1] , person duly authorized by the Director of Youth Protection of CIUSSS A; Applicant -and- C Children’s mother -and- D Children’s father ______________________________________________________________________ CORRECTED JUDGMENT [1] ______________________________________________________________________ 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. ).

Introduction [ 1 ] The Director is applying for the revision of the Court order rendered on October 17, 2019. [ 2 ] By this order, the Tribunal declared the security and development of the children X and Y still in danger for the motives of physical, healthcare and educational neglect. [ 3 ] For Y, she also invokes a situation of psychological ill-treatment. [ 4 ] As protective measures, the Court entrusted the children to a foster family to be determined by the Director, entrusted Y to a rehabilitation centre as soon as a place became available, and took notice that it would be at the unit A. [ 5 ] The Court also authorized in X’s favour, contacts with his parents, according to the modalities set by the Director and in Y’s favour, supervised contacts with her parents, according to the modalities set with the Director, ordered that the children receive specific health care and services required by their situation and ordered a social follow-up for a period of six months. [ 6 ] Today, the Director considers that the security and the development of the children are still in danger for the same motives. [ 7 ] Because of the new facts alleged, the Director recommends revising the protective measures so that the Court entrust the children to a foster family, authorize in Y’s favour, supervised contacts with her parents, upon the frequency and modalities determined by the DYP, authorize in X’s favour, supervised contacts with his mother and contacts with his father, upon the frequency and modalities determined by the Director, order that the children receive all the health care and services required by their situation, take judicial notice that the Director will clarify a life plan for the children, excluding the return with either of their parents, and order a social follow-up for a period

of 6 months. [ 8 ] At the hearings held on September 17 th and November 12 th 2020, the parents are present and represented by their respective lawyers. They are asking for the return of their children to their care. If not, they want to have more contacts with them. [ 9 ] The children’s lawyer, after hearing the evidence, is in agreement with the recommendations. Questions in litigation [ 10 ] Is the return of the children to the parents care possible? [ 11 ] In any case, what should be the frequency and modalities of the contacts between the children and their parents?

Evolution of the situation X [ 12 ] Since the last Court order, X (5) evolve positively in his foster family. He is progressively developing an affectionate relationship with the family members. [ 13 ] Nonetheless, he still presents with some behavioural disturbances. Although his aggressive outbursts are less present, he remains fragile and unstable. [ 14 ] Transitions are particularly difficult for X.

He reacts with opposition, irritability, difficulty to eat and sleep, aggressivity towards himself and objects. [ 15 ] The foster mother learned to adapt her interventions and strategies adequately according to the child’s difficulties. [ 16 ] X was evaluated at the hospital by a pediatric professional team.

They concluded that the child has an impairment in his motor and language skills. [ 17 ] He benefits from a follow-up with the CRDI which provides with speech therapy, occupational therapy and psychoeducation on a regular basis. [ 18 ] He also attends a group of socialization offered by them, two mornings per week. [ 19 ] The possibility of an Autism Spectrum Disorder (ASD) is still being evaluated. [ 20 ] At the daycare, he is accompanied and functions well. [ 21 ] In September 2020, he started attending school. He can have tantrums which are subsiding with time.

Y [ 22 ] Y (6) remained in her last foster home as no place was ever available at Foyer A Rehabilitation Centre. [ 23 ] In the meantime, she continued to receive services of an educator. [ 24 ] She is now well integrated in her foster home and her relationship with the foster mother seems positive. [ 25 ] Progress in her behaviour were observed and she responds well to the structure of her foster mother. [ 26 ] Nonetheless, her behaviour was unmanageable in school. It was twice attempted to integrate her in a classroom, without success.

She has great difficulty in socializing with other children. [ 27 ] After the confinement due to the pandemic, she did not return to school and did her school work at home. [ 28 ] During the summer, she went to a day camp to improve her social abilities, executive functions and motor/language stimulation. The experience was positive. [ 29 ] Y is also slowly progressing in her language skills.

She receives stimulation and educational games from her foster mother to improve her speech while she waits for the services of a speech therapist. [ 30 ] As the wait was too long, the Director decided to provide these services through a private practitioner who started working with the child in September. [ 31 ] Y also benefit from a pediatric follow-up and was psychologically assessed. [ 32 ] This evaluation indicates that Y’s affective development is equivalent to a child around 2 years of age. [ 33 ] Some diagnosis were ruled out: she presents no intellectual disability, no ASD, no ADHD and her capacity to learn is in the average range. [ 34 ] She must improve her language skills before she can participate in a needed psychological follow-up to help address her attachment issues.

[ 35 ] She also presents with emotional fragility and can absorb the emotion of the people around her, especially the negative ones. [ 36 ] The adults surrounding her must stay neutral, secure and in control as much as possible.

The parents and the new baby [ 37 ] The parents had a new child, Z (hereinafter referred to "the baby") born on [...], 2020. [ 38 ] On March 3 rd , the mother and the baby integrated the [Resource A] to be assessed for her parental skills. [ 39 ] On April 15 th , 2020, the mother succeeded in her evaluation process. [ 40 ] Because the mother showed significant potential in learning, she was offered to remain at the resource in the "development" program for as long as needed. [ 41 ] In fact, the specialized educator and worker in charge of the mother’s file at the resource, stated that the prognosis was quite poor at the beginning of their stay, but that the mother’s evolution on the personal and parental levels was huge and showed an impressive turnover. [ 42 ] The mother had just started taking medication for her social anxiety (antidepressants) and thyroid, which seemed to have produced significant change.

This and being fed properly. [ 43 ] She became more and more active, energetic and proactive in responding to her child’s needs, including stimulation and health care. [ 44 ] She was accepting criticism and advice and applying recommendations willingly. [ 45 ] She was able to put the baby’s needs and interest above her own and not get distracted. [ 46 ] She was observed as delicate and patient with the baby and autonomous in her chores. [ 47 ] She was also more assertive, even in the father’s company and was able to give him advice on caring for the child. [ 48 ] Starting mid-April, both parents worked as a team to care for the baby. [ 49 ] The supervision of the father’s contacts was lifted by the Court. [ 50 ] The father received coaching and was allowed extended period of time at the resource. [ 51 ] He responded well to the advice and was observed as being "super proactive". [ 52 ] He also requested much information about child development [ 53 ] He was coping well with his own personal difficulties and was able to collaborate with the interveners. [ 54 ] On June 8 th , 2020, an orientation table meeting was held by the Director in the presence of the parents and the intervenors from [Resource A]. [ 55 ] The professionals involved agreed and the reviewer recommended that the child be entrusted to his parents with the help of an external educator from the [Resource A]. [ 56 ] On June 16 th , 2020, the Court rendered an interim order, entrusting the baby to his parents. [ 57 ] The Court found that throughout the social follow-up for X and Y, the parents’ collaboration positively evolved. [ 58 ] They both recognized their difficulties regarding their parental capacities. [ 59 ] The mother greatly improved since she is taking her new medication. [ 60 ] She herself states how it changed her and how she has become more confident in herself. [ 61 ] The father is also now taking medication for his anxiety disorder which was not the case when the Director intervened. [ 62 ] The father had then voluntarily stopped taking Paxil because he wanted to have all his intellectual capacities to care for the children.

Now he realizes that this was a mistake. [ 63 ] He also took steps to control the pain emerging from his fibromyalgia.

The constant pain in which the father was at the beginning of the Director’s involvement for the elder children had led him to be more impatient and overwhelmed. [ 64 ] Finally, the father recognized that he has issues pertaining to his social skills and was awaiting on an evaluation for ASD. [ 65 ] The evidence had shown tremendous improvement in the parents’ situation and parental skills which allowed the Court to entrust the baby to his parents. [ 66 ] Nonetheless, the Court found that the situation still presented with some fragility as the baby was more likely to present with

developmental delays because of his mother’s thyroid issues. [ 67 ] This combined with the personal issues that the parents were dealing with made it so that the Court decided to render an interim order to observe how the parents were able to maintain their improvement and answer to the baby’s needs. [ 68 ] On June 25 th , 2020, the mother and the child definitely left [Resource A] to move into an apartment with the father. [ 69 ] On September 17, 2020, the Court rendered its final decision in the baby’s situation. [ 70 ] The evidence about the evolution of the situation since the interim order showed that the parents provided with every necessity that the baby needed. [ 71 ] They continued to collaborate with the external educator from the resource and asked for advice. [ 72 ] They were also proactive in adapting their knowledge about how to care for their baby as he grew up. [ 73 ] The father occasionally had to be reminded of the child’s routine. [ 74 ] Other than that, the baby was observed as receiving answers to all his needs. [ 75 ] At the end of June, the mother’s eldest children, A (12) and B (10) came to live with the family. [ 76 ] There were issues pertaining to B which were under evaluation.

More particularly, she was experiencing severe mutism. [ 77 ] The psychologist also mentioned that B’s relationship with her mother was poor and had to be secured. [ 78 ] In short, the arrival of the two girls raised issues regarding the capacity for the mother to provide with the same intensity in caring for all the children at once. [ 79 ] At the moment, her focus was mainly on the baby and the girls were lacking in some attention to their specific needs (school, routine, etc.). [ 80 ] Therefore, the Court stated that the challenge for the parents was to make sure that all their children equally and without delay get answers to all their needs. [ 81 ] They also had to continue to address their personal and parental issues and to be open-minded about the services they received. [ 82 ] Intensive support was still needed in order to ensure that the parents continue to evolve and grow. [ 83 ] The order stated that the baby was entrusted to his parents, with different measures, recommending that the parents continue to collaborate with the external follow-up from [Resource A], with a social follow-up from the Director for a period of 6 months.

Contacts with the parents [ 84 ] Until the confinement due to the pandemic, X benefitted from contacts with his parents every weekend for a few hours. [ 85 ] The mother was not regular in her presence at these contacts, which made X react strongly. [ 86 ] Y benefitted from contacts with each parent separately. [ 87 ] The father is observed as having difficulties to interact and stimulate the child. [ 88 ] Although he understands the concept of parental skills, he has a hard time putting them in action. [ 89 ] His approach to games is not at the child level.

He is preoccupied with the rational and logic of things and can lack patience when confronted with noise. [ 90 ] The mother is offered coaching to help her initiate communication with her daughter and help her with her parental skills. [ 91 ] From mid-March to mid-May, as there were measures due to the confinement and the mother was at the [Resource A] with the baby, contacts were maintained with the children over the telephone and through video calls. [ 92 ] When the physical contacts resumed, they were organized with the two children and the two parents together. [ 93 ] The parents bring different activities to play with them and respond well to the advice given by supervisors.

The mother spends more time with Y and the father with X, as it is their natural inclination. [ 94 ] The father states that X has characteristics in which he recognizes himself and states that he better understands his son’s needs. [ 95 ] The father’s relationship with Y remains difficult and he needs to be accompanied to improve his interactions with her. [ 96 ] The parents still need guidance particularly when the children are rowdier and do not listen to the rules. [ 97 ] The parents have then difficulty working as a parental team.

Their interventions are not adjusted to their children’s age and special needs as the father threatens to report their behaviour to the foster parents or not to bring a surprise at the next visit and the mother only repeats her same demand.

[ 98 ] At some occasions, the parents brought the baby to their supervised visits with Y and X. [ 99 ] It was observed that their focus is mainly on the baby and if the elder children are agitated, it becomes difficult for the parents to manage the three.

Analysis of X and Y’s situation [ 100 ] The mother has five children, three of them together with the father. [ 101 ] The parents claim that since they have sufficiently improved their parental skills and addressed their personal issues for the baby to be entrusted to their care, they should regain custody of all their children. [ 102 ] But the Court cannot make such an assumption. [ 103 ] Each child is different.

They have their own personal characteristics and life and family history. [ 104 ] The decision regarding each and every one of them must take into account these distinctions. [ 105 ] The Youth Protection Act [2] states that: “ Decisions made under this Act must be in the interest of the child and respect his rights.

In addition to the moral, intellectual, emotional and material needs of the child, his age, health, personality and family environment and the other aspects of his situation must be taken into account .” [3] [ 106 ] Y and X bear severe damages in their development because they were victims of grave negligence when in their parents’ care [4] . [ 107 ] Namely, there was a great lack of stimulation, of structure and routine which led the children to present with important delays in their development. [ 108 ] Y and X both present now with great individual special needs. [ 109 ] At the time of the Director’s first involvement, the mother was not very autonomous, had a low self-esteem and would leave her responsibilities to others. [ 110 ] The father’s housing was not secured and he had great financial difficulties. [ 111 ] He exhibited anxiety, yelled and spank the kids, particularly Y whom he locked in her room for many hours: « [49] The little girl shows important deficiencies due not only to lack of stimulation by both parents but also by a lack of attention and kindness, by isolation and inadequate structure.

She was often tagged as the disruptive child. » [ 112 ] At the revision, the Court stated that : « [9] The Court considers that the father’s parental capacities are not sufficient to care for the children.

As for the supervision of the contacts, the Court finds that the order should be different for each child for the following motives. » [ 113 ] Y’s behaviour in foster homes was so difficult that she was moved three times before she settled down. [ 114 ] The court also found that the father was « in denial and still tries to justify or explain the delays in his children with external factors. » [ 115 ] At that time, the mother was still in her family’s control and had not continued with the Better Together Program to improve her parental capacity. [ 116 ] In April 2020, when the revision was done by the Director before seizing the Court, the mother’s situation was still not optimal.

She had declined some services for her personal benefit and had not yet started to be proactive during the visits with the children. [ 117 ] Today, even though the parents have greatly improved, they still need services in order to answer to their children’s needs. [ 118 ] Things are going well with the baby because the parents are well structured and surrounded by services. [ 119 ] Even now, the parents have difficulty sharing their attention when in the presence of more than one child. [ 120 ] Generally, the baby takes so much of the parents’ attention that even X’s school registration was delayed for 8 months and narrowly done. [ 121 ] The explanations given by the parents do not satisfy the Court.

They were given many reminders and support was offered to them, but they were not able to follow through diligently. [ 122 ] The Court is particularly concerned by the father’s testimony given on November 12 th , 2020 during which he claimed that he had not received any coaching, despite evidence to the contrary. [ 123 ] The recognition of the father’s personal issues even seems to have regressed as he mentions that he has no difficulty applying

what he learns and that he no longer has a need to be evaluated for ASD. [ 124 ] He also denies having difficulty dealing with more than one child at a time and claims that it would be different in a home setting. [ 125 ] Furthermore, the maximum duration of placement [5] has expired for both children since July 2020. [ 126 ] Time is not neutral for the children and they cannot wait until their parents are able and ready to care for them and answer their needs, if they ever are. [ 127 ] Considering their special needs and their experience, the Court is of the same opinion as their lawyer: the risks are too great to attempt a return to the parents' care. [ 128 ] In X’s and Y’s situation, the Court finds that the evidence demonstrate that a returned to their parents’ care is not possible. [ 129 ] The children need stability in order for them to continue developing an affective, cognitive and physical level [ 130 ] A life plan will have to be decided for them by the Director during the present order. [ 131 ] X’s foster home particularly has to find solutions to improve its organization to be able to attend to all the child’s appointments. [ 132 ] As for the frequency and modalities of visits with their parents, again, the children’s individual characteristics and needs must be taken into consideration. [ 133 ] The children do not present negative reactions before, during and after visits with their parents. [ 134 ] This being said, they do not ask for their parents or speak about them between visits. [ 135 ] The order regarding visits and contacts must also take into account that the children will not be returning to their parents’ care. [ 136 ] Therefore, these contacts are in order to maintain a bond with their parents without compromising them creating root in their respective foster families, their routine and their schooling. [ 137 ] For the current order, these contacts will have to be maintained at the same frequency and modality as they currently are. [ 138 ] Having read the reports and heard the testimonies, the Court finds that the evolution of the situation gives way to the recommended measures.

FOR ALL THESE MOTIVES THE COURT: GRANTS the present application; DECLARES that the security and development of the children X and Y are still in danger; REVISES the Court order rendered on October 17, 2019 in the present file; ENTRUSTS the children X and Y to a foster family; AUTHORIZES , in Y’s favour, supervised contacts with her parents, upon the frequency and modalities determined by the Director of Youth Protection; AUTHORIZES , in X’s favour, supervised contacts with his mother, upon the frequency and modalities determined by the Director of Youth Protection; AUTHORIZES , in X’s favour, contacts with his father, upon the frequency and modalities determined by the Director of Youth Protection; ORDERS that the children receive all the healthcare and health services required by their situation; RECOMMENDS that the parents continue their respective personal follow-ups; TAKES JUDICIAL NOTICE that the Director of Youth Protection will clarify a like plan for the children, excluding the return with either of their parents; ORDERS that the children and their parents take an active

part in the application of any of the measures ordered; ORDERS that a person, working for CIUSSS A or any other establishment or body, provide aid, counsel and assistance to the children X and Y and their family for a period of 9 months; ENTRUST the situation of the children X and Y to the Director of Youth Protection to see that the measures are carried out. __________________________________ PASCALE BERARDINO, J.C.Q.

M e Christine Loubier Counsel for the DYP M e Claudel Vachon Counsel for the youth M e Maryse Pinsonneault Counsel for the mother M e Érica Gosselin Counsel for the father Date of hearing: November 12, 2020 Date of written judgment: January 29, 2021 Date of corrected judgment: August 6, 2021