r v. A, 2016 QCCQ 12643

Protection de la jeunesse — 165507 2016 QCCQ 12643 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 760-41-004766-146 DATE: August 29, 2016 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X Born: [...], 2009 Child ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION OF LE CENTRE JEUNESSE A Petitioner v.

A B Parents ______________________________________________________________________ RECTIFIED 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.). [ 1 ] Introduction [ 2 ] The Director of Youth Protection presents a motion for revision and extension of a court order, submitting that the continued endangerment of the child’s situation, in conjunction with the duration of his placement, justify a permanency order stabilizing him in a foster family until his majority. [ 3 ] The mother contests the measures. She submits that there should be a progressive reintegration of her son to her care, with a return for the end of summer 2016.

Recognizing the need for the continued implication of the Director of Youth Protection, she leaves the duration of the eventual order to the discretion of the Court, although she considers majority too long. [ 4 ] The father is not present at the hearing, even though he receives service of the motion. He confirms to the mother his intention to be absent, but that he supports her position. The Court considers that it is in X’s best interests to proceed. [ 5 ] The attorney for the child declares operating under a legal mandate.

Following her evaluation of the evidence, she pleads that the Director fails to provide services and that consequently, the Court should extend the measures for 6 months in order for the mother to demonstrate her ability to assume her son’s care and cooperate with social services. [ 6 ] Context [ 7 ] X resides with Ms C and her spouse since November 2014, in reason of a situation of endangerment resulting from educational and health neglect as well as psychological ill-treatment.

It is pertinent to note that previous to this entrustment, this environment is a significant presence in X’s life and receives him on a regular basis. [ 8 ] In his foster environment, X receives a coherent and constant response to his needs. Although he continues to struggle with developmental delays and health issues stemming from his diagnosis of Dandy-Walker Syndrome, he is functioning well and progressing academically. [ 9 ] X shows attachment to his foster family.

He verbalizes to his mother that he wants to remain in his foster family and asks her to cease trying to get him back. [ 10 ] In reason of his medical condition, X receives various services, more notably through the Centre Montérégien de Réadaptation (C.M.R.). The mother usually schedules appointments with the occupational therapist and accompanies her son.

[ 11 ] In April 2016, X’s follow-up in ergotherapy ends after almost a year of meetings, with the attainment of numerous objectives. He will require continued support and stimulation as to his learning development and his coordination. [ 12 ] Although such is encouraged, the father doesn’t participate in X’s various follow-ups. [ 13 ] X sees his mother on a regular basis, through scheduled visitation as well as during his various appointments. [ 14 ] The mother admits though her testimony that her bond with her son is not strong and that he is significantly attached to his foster family.

Her contacts being limited, she doesn’t do a lot of one on one with her son, just letting him ‘ ’be a kid’’ . As such, the Court concludes that the stimulation activities recommended for X are not applied. [ 15 ] The mother offers little cooperation with social services. Only two short meetings are able to be held with the social worker and within these, the mother demonstrates ineffective participation. [ 16 ] On May 25 th , a review meeting occurs and although both parents are invites, only the mother is present. The Director advises her of the recommendation for long-term placement.

Since that time, the mother refuses meetings or contacts with the caseworker. She states in her testimony that this stems from her conviction that there is no use arguing with the Director’s position, so she sees no use in meeting with the caseworker. [ 17 ] Although the last judgment confirms the structure of X’s contacts with his father (every second weekend) and a calendar is put in place, the visits usually occur on a monthly basis. Numerous scheduled weekends fail to occur in reason of the father’s cancellation or absence. X only has one weekend contact with his father since the last judgment.

This is also the reflection of the father’s cooperation with social services. [ 18 ] In view of the lack of cooperation from the parents, the caseworker has little information as to X’s contacts. X also rarely refers to his parental environments. [ 19 ] Following contacts with parents, X shows reactions for a short period, namely nocturnal enuresis and behavioural difficulties. These reactions are not present on weeks where no contacts occur. [ 20 ] Analysis and decision [ 21 ] The Court underlines the principle legislative basis of its evaluation in virtue of the Youth Protection Act : 91.1.

If the tribunal orders a foster care measure under subparagraph j of the first paragraph of

section 91, the total period of the foster care may not exceed: (a) 12 months if the child is under two years of age on the date the order is made, (b) 18 months if the child is from two to five years of age on the date the order is made, or (c) 24 months if the child is six years of age or over on the date the order is made. When determining the duration of foster care, the tribunal must take into account the duration of any foster care measure applied to the same situation in an agreement on voluntary measures referred to in subparagraph j of the first paragraph of

section 54, as well as the duration of any prior foster care measure it ordered under the first paragraph. It may also take into account any prior period during which the child was placed or provided with foster care under this Act. If the security or development of the child is still in danger at the expiry of the periods specified in the first paragraph, the tribunal must make an order aimed at ensuring continuity of care, stable relationships and stable living conditions corresponding to the child's needs and age on a permanent basis.

However, the tribunal may disregard the periods specified in the first paragraph if it is expected that the child will be returned to his family in the short term, if the interest of the child requires it or for serious reasons, such as failure to provide the services agreed upon.

At any time during a period specified in the first paragraph, if the security or development of the child is still in danger, the tribunal may make an order aimed at ensuring continuity of care, stable relationships and stable living conditions corresponding to the child's needs and age on a permanent basis. [ 22 ] Entrusted in foster care since November 2014, the maximum delay of placement for X is expired, a fact uncontested by the parties. [ 23 ] His security and development are still in danger, in reason of his vulnerabilities which challenge his family environments and require the rehabilitation of parental capacities ensuring the capacity to address his needs.

Such has been an ongoing objective of the protective measures.

[ 24 ] As such, the Court is bound to establish a permanency plan, save the proven existence of a factor permitting to disregard such, as stipulated by the Youth Protection Act. [ 25 ] Two arguments are put forth, namely the possibility of X’s return to his mother’s care on a short term basis and the failure to provide services. [ 26 ] The Court considers the history of the intervention and the parent’s participation. For the father, despite the repeated possibility to implicate himself in his son’s life and the protective measures, he fails to do so.

This situation, which the Court qualifies as chronic, establishes that the father’s environment cannot address X’s needs on a full-time basis. [ 27 ] As to his mother, she has made strides in being available for visitation with her son as well as for certain of his follow-ups.

Although a positive step, this is but a parcel of what was established as being required to demonstrate a rehabilitation of her parental capacities and to overcome the history creating the situation of endangerment. [ 28 ] Furthermore, X is not available to a plan for reintegration, which is demonstrated through numerous elements (reactions post- contact, attachment, verbalizations). [ 29 ] The whole is insufficient to convince the Court of the expectation that the parents assume X’s full-time care at present or even in a short delay.

The Court therefore dismisses this argument. [ 30 ] The attorney for the child pleads that the Director fails to provide the services agreed upon, therefore constituting an exception to the obligation to consider a permanency order. The Court does not retain this argument. [ 31 ] The principal objectives of the Youth Protection Act are to offer measures protecting the child and seeking the end of a situation of endangerment. To these ends, the participation of the parents is an essential and expected component. The Court cites: 2.3. Any intervention in respect of a child and the child's parents under this Act (

a) must be designed to put an end to and prevent the recurrence of a situation in which the security or the development of the child is in danger; and (

b) must, if the circumstances are appropriate, favour the means that allow the child and the child's parents to take an active

part in making decisions and choosing measures that concern them. Every person, body or institution having responsibilities under this Act towards a child and the child's parents must encourage the participation of the child and the parents, and the involvement of the community. The parents must, whenever possible, take an active

part in the application of the measures designed to put an end to and prevent the recurrence of the situation in which the security or development of their child is in danger. (our underlining) [ 32 ] In this present case, the parents are also bound by successive orders to actively participate in the measures. Such is not the case. [ 33 ] As is its mandate, the Director executes the measures in place and offers services to the parents, while remaining vigilant and available for both parents.

The evidence demonstrates that the full brunt of its services cannot be put in place, not as a result of the Director’s failure to execute its mandate, but by the parent’s inaction and refusal to benefit from these. [ 34 ] This situation is ongoing and referred to in previous orders, more specifically: [30] The Court adds that the prognosis is increasingly sombre as to the possibility of the parents being able to make the significant changes necessary to permit a reintegration of X in his family environment.

Time is of the essence for X and if the parents do not remedy their collaboration to the intervention and clarify their investment in the next period of measures, the Court will be bound by law to contemplate an alternate life plan. (Judgment September 29, 2015) [ 35 ] Furthermore, it is important to underline that the legislator specifies that there must be a failure to provide the services ‘’ agreed upon ”, such resulting from the targeted objectives and means taken.

In reality, this can refer to the judgment or to the intervention plan which is put in place and revised on a regular basis to evolve with the situation of the child. [ 36 ] The parents’ choices to not be available for the protective measures cannot be the basis for the Court disregarding the objectives of the legislator to stabilize a child once the maximum delays of placement are attained .

To do so would be tantamount to expecting the Director to force services on unwilling parents. [ 37 ] As well, it would be creating a questionable precedent to endorse the argument of a failure to provide services by a parent constituting the source of such by their inaction. The Courts consistently adopt this view. [2] [ 38 ] After considering the evidence, the Court concludes that X’s interests are that he be stabilized on a permanent basis.

As such, the Court endorses the measures suggested by the Director of Youth Protection, while designating the foster family, these being the reflection of the child’s best interests, [ 39 ] FOR ALL THESE REASONS, THE COURT:

[ 40 ] GRANTS the motion for revision and extension of a court decision; [ 41 ] DECLARES that the security and the development of the child are still in danger; [ 42 ] REVISES AND EXTENDS the Court order rendered on February 19, 2016; [ 43 ] ORDERS that the child be entrusted to a foster family chosen by the Director of Youth Protection A; [ 44 ] TAKES ACT that the Director of Youth Protection has chosen the foster family of Ms C, as being the appropriate milieu to offer a permanency plan to the child, and therefore: [ 45 ] ORDERS that the child be maintained in this foster family until his majority; [ 46 ] ORDERS that the contacts between the child and his parents be determined following mutual agreement between the parties; [ 47 ] ORDERS that the parents report periodically to the Director of Youth Protection on the measures they apply in their regard or their child’s regard to put an end to the situation in which his security or development are in danger; [ 48 ] ORDERS that the parents take an active

part in the application of the measures ordered; [ 49 ] ORDERS that the child receives certain services services required by his health, namely, follow-up from the Centre Montérégien de réadaptation as long as deemed necessary; [ 50 ] ORDERS that a person working for an institution or body provide aid, counselling or assistance to the child and his family; [ 51 ] ALL THESE MEASURES until the majority of the child, namely [...], 2027; [ 52 ] ENTRUSTS the situation of the child to the Director of Youth Protection of the Centre Jeunesse A for the execution of the measures. __________________________________ BÉATRICE CLÉMENT, J.C.Q.

Me Amélie St-Denis Attorney for the Petitioner Me Johanne Leduc Attorney for the mother Me Malyka Jean-Baptiste Attorney for the child Date of hearing: June 29, 2016