THE MINISTER OF SOCIAL DEVELOPMENT , Applicant, - v. –, 2023 NBKB 5

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF FREDERICTON MSD v. D.M. 2023 NBKB 005 FDF-556-2022 2023/01/20 BETWEEN: THE MINISTER OF SOCIAL DEVELOPMENT , Applicant, - and – D.M., Respondent, DECISION BEFORE: Chief Justice Tracey K. DeWare AT: Fredericton, New Brunswick DATE OF HEARING: January 10, 2023 DATE OF DECISION: January 20, 2023 APPEARANCES: Elan MacPhee, on behalf of the Applicant Joe FitzPatrick, on behalf of the Respondent

DeWare, C.J. INTRODUCTION [ 1 ] This is a guardianship application. The Applicant, The Minister of Social Development, seeks a guardianship order with respect to a young boy, M.M., born on [...], 2022. The Respondent, D.M., is M.M.’s biological mother. Throughout the proceedings, the Respondent opposed the Applicant’s request for a guardianship order. However, the Respondent did not attend court for the trial of the application, nor did she provide instructions for her solicitor to share with the Court.

The Court proceeded with the application in the absence of the Respondent who was at all times aware of the date and time of the hearing. Representatives of the Applicant went to the Respondent’s home while the Court sat in recess to see if the Respondent required transportation. The Respondent could not be found and after waiting for an hour, the Court began the hearing. The Court concludes for the reasons that follow that it is in the best interests of the child, M.M., that a guardianship order issue with no right of access reserved. FACTS [ 2 ] M.M. is the Respondent’s sixth child.

The Respondent has four older children who also were the subject of guardianship orders. The Respondent has one child whose custody was transferred to her mother. The concerns which have led the Applicant to be involved in the life of the Respondent for the past 20 years remain essentially the same. The concerns have always revolved around the Respondent’s ability to meet the needs of her children, concerns for neglect as well as the Respondent’s cognitive delays. The father of M.M. is unknown. [ 3 ] Given the Respondent’s history, M.M. was taken into protective care following his birth.

M.M. has been residing in the same foster home since April 11, 2022. While there has been some concern that M.M. initially presented with a lazy eye, he is doing extremely well. He is described as a happy little baby boy who is meeting milestones and is well adjusted. [ 4 ] A primary concern expressed by the Applicant for the past several years has been the Respondent’s living conditions. The Respondent lives in one room in a rooming house. The Respondent has toilet facilities available to her outside of her room but frequently chooses to urinate in a bucket.

The visits by social workers to the Respondent’s lodgings have persistently noted concerns with cleanliness, safety, and extremely foul odours. While the Respondent has expressed a desire for the past three years to obtain alternate living arrangements, no progress has been made on this front. [ 5 ] There is no doubt that the Respondent loves M.M. as she has all of her children. When the Respondent has been present at visits, she is loving and gentle with the baby. The Respondent frequently requires prompting to attend to some of the babies needs but is a loving parent.

However, the Respondent has not always been consistent in attending visits, and of late, these have been reduced to once a week. The Respondent is frequently tired during her one hour visit and expresses this to the supervisors. [ 6 ] M.M. must be transported to Fredericton for his visits with the Respondent. Given the inappropriate nature of the Respondent’s rooming house to accommodate a visit from a baby, these visits have always been at the offices of the Applicant. M.M. becomes upset during the drive from his foster home in Minto to attend his visits in Fredericton.

The Applicant asked the Respondent to visit with the baby in Minto in order to reduce the stress on the very young child. The Respondent was unwilling to travel to Minto for the visits despite being made aware that this travel was proving challenging for M.M. [ 7 ] The Respondent presents with cognitive delays and has mental health conditions which require psychiatric care. Given the Respondent’s rather lengthy history with the Applicant, there have been psychological parenting capacity reports completed in both September 2020 and August 2022.

The September 2020 report was prepared in the context of an earlier guardianship application for another one of the Respondent’s children. These reports were both completed by psychologist, Robert Doucet. Unfortunately, Mr. Doucet’s findings confirm that the Respondent’s situation has not improved with time but actually appears to be deteriorating. [ 8 ] In his report of August 15, 2022, Mr. Doucet notes as follows: Analysis and recommendation This case involves a 40 year old mother whose three previous children were awarded guardianship by the court and her other child given custody to the maternal grandmother.

The present application for guardianship concerns a 4 ½ month old child, M., who is presently in foster care and of which D. is having weekly visits. The visits have been problematic in the sense that there were two visits in the beginning and later reduced to one as D. was not able to attend all of the visits. My main objective in conducting this assessment was to review if there had been any material changes since my last assessment in September of 2020. Overall, I recognize that there have been some changes since 2020 and that these changes are not in a positive direction.

D. has been experiencing seizures for the last two years and has also experienced a severe mental health episode in 2021. I remain unsure if there is a neurological reason for the seizures and if this is progressing or not. As well, the fact that D. continues to believe that her ex- partner had sexual relationships with children and that she has been unable to disqualify this, is of concern as well in terms of the stability of her mental health. She continues to take monthly injection of an antipsychotic medication although she questions the diagnosis she was given while in hospital in 2021.

D. is presently in what I consider a very unstable relationship and I am uncertain as to the direction this relationship will take. The fact that this couple is having multiple arguments and that D. has a rather negative view of the future of this relationship, would not be positive to expose a child to this type of conflict and uncertainty.

D. continues to reside in a boarding home and has not been able to secure any other type of housing which would be suitable for a child. She has limited financial resources and as well cannot depend on family resources to help her out. Probably due to the fact she resides in a boarding house she has not purchased any of the requirements for a young baby (crib etc.) Although D. is able to show care and loving to her young child M.; it has been difficult for her to be consistent with all of her visits resulting in a reduced frequency of visits.

D. has a pleasant demeanour, is not aggressive towards workers and continues to advocate for the return of her child to her care if she can find suitable housing. If housing was the only issue preventing D. from having care of her son, perhaps the situation could evolve to a more positive outcome however D. has several other issues which contribute to her overall weak approach and make the return of the child to her care an increased risk.

There is mounting evidence that on her own, D. will be unable to meet all of this young baby’s needs effectively and I do not consider that a return of the child to her care would be in this child’s best interest. In an ideal situation, D. would need to reside in a home where a responsible parent would be present to oversee the caring towards M. thereby filling in the gaps where D. is unable for whatever reason to provide the appropriate care to M. D.’s cognitive challenges make it difficult for her to organize and manager her life effectively in a consistent manner.

She longs for better living conditions however has been unable to accomplish this goal. D.’s choice of partners as to the child’s father, especially the fact I have been informed that this is D.’s cousin speaks directly to weakness of judgement in her choice of partners. As well her previous partner whom she accuses of having sexual relationships with children and her current partner whom she reports having frequent disagreements with further emphasize D.’s difficulties in making better choices for herself and her ultimate happiness.

I have made every attempt to review the possibility of this child being returned to D.’s care if she were able to meet all of the concerns noted above and able to present a risk free environment for this child. Unfortunately I do not believe that D. has been able to accomplish this and for these reasons I support the guardianship application. [Emphasis mine] [ 9 ] Given her mental health challenges, the Respondent has been cared for by a psychiatrist, Dr. Adejoke Olubunmi Otusajo. In a discharge

summary report dated September 16, 2021, Dr. Otusajo outlines the situation with the Respondent’s psychiatric challenges as follows: INTRODUCTION: D. is a 39-year-old single unemployed woman who resides in Fredericton. She was recently diagnosed with unspecified/substance induced psychotic disorder after discharge from 2SE on the 29 th of July 2021. She presented on this occasion with bizarre behavior and delusional ideation; paranoid and persecutory in nature. According to the ER psychiatric assessment, D. had reported witnessing her ex-boyfriend sexually abusing children outside of her apartment.

She had called police to report this incident, but police had found it not to be the case. She continued to escalate with her behavior, which appeared bizarre. She was subsequently brought in by police to the Emergency Room for an assessment. She was detained under the Mental Health Act (Form 1) and admitted to 2SE. (…) D. appeared delighted to learn she was pregnant although did not seem to have any long term plans about whether she will be taking care of the baby when born or not.

Although aware she has none of her 5 living children in her custody, she admitted there was a likelihood her baby will be taken away from her. She was indifferent as to whether she could continue with the pregnancy or not. She often casually stated she loses pregnancies at 8 weeks gestation so there was a high chance of her losing this pregnancy; and would rather continue and take one day at a time. She was offered prenatal vitamins but refused to take them because they worsened her nausea and made it harder for her to keep any food down.

She declined other alternatives throughout the duration of her hospital stay, stating she would buy a preferred alternative over the counter when she was discharged home. (…) D. was referred for a neurocognitive assessment with the team’s psychologist as well as functional assessment with the team’s occupational therapist. The results of her cognitive assessment supported the diagnosis of intellectual disability with her verbal reasoning and problem solving in the extremely low range. It is expected that D. will experience great difficulty in situations that require verbal skills and abstract thinking.

Her processing speed as well as working memory were also within the extremely low range suggesting that D. would require much longer time completing routine tasks as well as sustaining attention or concentration. Her highest score which was within the low average range, which is 9 th percentile; this was … the perceptual reasoning index which measures nonverbal reasoning ability. A full report of psychology assessment will be made available and uploaded in the patient’s file in due course. (…) [Emphasis mine] [ 10 ] The Respondent’s current social worker, Jaclyn Purcell, testified at trial. Ms.

Purcell explained that due to her increasing concerns for the Respondent’s well-being, she has made a referral to adult protection. Ms. Purcell is worried that the Respondent

frequently looks unwell, seems weak, and continues to reside in an unsanitary and unhealthy environment. Ms. Purcell is concerned that the Respondent is not able to care for herself and requires assistance. ISSUES [ 11 ] The issues for the Court to resolve in this matter are whether or not it is appropriate to issue a guardianship order, and if such an order is issued, should a right of access be retained for M.M.

LAW AND ANALYSIS [ 12 ] The Applicant seeks a guardianship order in this matter pursuant to section 56(1) of the Family Services Act which states: 56(1) The court may make a guardianship order transferring from a parent to the Minister on a permanent basis the guardianship of a child, including the custody, care and control of, and all parental rights and responsibilities with respect to, the child. [ 13 ] The Minister requests the guardianship order as they believe M.M.’s security and development would be in danger if he were to remain in the Respondent’s care. The Applicant relies upon sections 31(1)(

b) and (

c) of the Act which states as follows: 31(1)The security or development of a child may be in danger when (

b) the child is living in unfit or improper circumstances; (

c) the child is in the care of a person who is unable or unwilling to provide adequate care, supervision or control of the child; [ 14 ] In the present matter, the Court’s only concern is what is in the best interest of this baby boy, M.M. The interests or hopes of the Respondent are not the basis upon which the Court can focus its analysis. This principle is confirmed in section 53(2) of the Act which states as follows: 53(2) When disposing of an application under this Part the court shall at all times place above all other considerations the best interests of the child. [ 15 ] In determining the best interest of the child,

section 1 of the Act sets out the various criteria the Court should consider: 1 In this Act “best interests of the child” means the best interests of the child under the circumstances taking into consideration(intérêt supérieur de l’enfant) (

a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both; (

b) the views and preferences of the child, where such views and preferences can be reasonably ascertained; (

c) the effect upon the child of any disruption of the child’s sense of continuity; (

d) the love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child;

(

e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of the child returning to or remaining with his parents; (

f) the need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity; and (

g) the child’s cultural and religious heritage; [ 16 ] The criterion set out in the Act to determine best interest of the child provides a helpful structure to the present analysis. I will deal with the

summary of the evidence applicable to each criterion. The mental emotional and physical health of the child and his need for appropriate care or treatment or both [ 17 ] In this case, the Respondent is struggling to meet her own mental, emotional and physical needs. The lead social worker has sufficient concern as to the Respondent’s own well-being and her ability to tend to her own needs that a referral to adult protection services has been made. Given the fact that this Respondent is regrettably unable to attend to her own needs, it is inconceivable that she could properly look after those of M.M.

The views and preferences of the child were such views and preferences can be reasonable reasonably ascertained [ 18 ] In this case, M.M. is simply too young to be in a position to express a view. The effect upon the child of any disruption of the child’s sense of continuity [ 19 ] In this particular matter, M.M. has been in the care of the Applicant since his discharge from hospital. M.M. has been living in the same foster home since the time of his placement. A return of M.M. to the care of the Respondent would be a great disruption to the child’s sense of continuity.

The baby boy is currently thriving in the care of his foster parents, and the plan would be for his adoption. M.M. will face a disruption in his young life when he is moved from his foster home to an adoptive home. That transition cannot be avoided. However, it can be managed in a way that is safe, gradual and respective of M.M.’s needs. Love affection and ties between the child and the respondent [ 20 ] As noted earlier, the Respondent clearly loves M.M. and demonstrates affection and love when she is with him. However, as noted by Madam Justice Quigg in The Minister of Social Development v.

G.B. , 2012 NBCA 62 , this one criterion cannot trump the others. The Respondent genuinely wants to care for M.M., as she did her other children, however she is simply unable to provide the care and stability he needs given her own complex challenges. The merits of any plan proposed by the minister under which he would be caring for the child in comparison with the merits of the children returning to or remaining with their parent [ 21 ] The Applicant’s plan is to place M.M. for adoption. There is a family that has provided respite care for M.M. during his placement with his current foster family.

The respite family is the adoptive home of M.M.’s older sister. This family would like to adopt M.M. should the guardianship order issue and are in the process of going through the application process. M.M. is familiar with this family as he has spent weekends and other time with them. M.M. is reported to be thriving and meeting all of his milestones. M.M. is described as a happy loving baby boy with few health challenges that has been followed carefully by doctors since birth.

The Applicant’s plan provides continuity of care for M.M. and the opportunity to grow up in a loving adoptive home with his older sister. [ 22 ] The Respondent did not attend the trial, did not testify and provided no responding documents. The Respondent has indicated to the social worker involved with her file her desire to obtain a better living arrangement and to care for M.M. The Respondent’s aspirations, while heartfelt, have never resulted in concrete steps that would envision a return of the baby to her care.

Clearly, in the present matter, it is the Applicant’s plan which best assures the well-being opportunity for M.M. to thrive. The need to provide a secure environment that would permit the children to become useful and productive members of society through the achievement of their full potential according to their individual capacity [ 23 ] The Respondent is currently unable to adequately care for herself. She would simply not be able to provide M.M. with the structure, routine, guidance, nor the necessary supports to meet his physical needs.

Given the Respondent’s own cognitive challenges, her mental health instability, her struggles to meet her own basic needs, and her inability to prioritize the needs of M.M., the Court is left with the inescapable conclusion that the best interests of M.M. are served by the issuance of a guardianship order. In this case, it is not a situation where the Respondent does not want to provide for M.M., she clearly loves the little boy, however her own multiple health and personal challenges simply render her ability to care for an infant untenable.

M.M. would never be able to reach his full potential in the care of the Respondent. Frankly, M.M.’s safety and well-being would be in jeopardy in the care of the Respondent given her current circumstances. [ 24 ] This Court concludes that the only path forward for little M.M. requires the issuance of a guardianship order. The return of M.M. into the care of the Respondent is frankly unfathomable for all the reasons explained. I am satisfied that M.M.’s security and development would be in danger were he to be returned to the care of the Respondent.

Right of access [25] Reserving a right of access to a child where a guardianship order has been issued is both rare and exceptional. This fact wasconfirmed in New Brunswick (Minister of Health and Community Services) v. L.(M.), (SCC), [1998] 2 SCR 534 atparagraphs 38 and 39 as follows: 38. An order for permanent guardianship is the result of a consideration of the best interests of the child.

In considering whethervisiting or access rights should be granted, the judge cannot ignore the fact that he or she has first found it necessary to remove the childfrom the parents’ care completely and permanently, so that the child’s welfare will not be jeopardized any further. The judge musttherefore consider whether more limited contact might still be beneficial for the child. 39. My consideration of whether access should be granted is based on the following principles. First, there is no inconsistency inprinciple between a permanent guardianship order and an access order.

Second, access is the exception and not the rule. Third, theprinciple of preserving family ties cannot come into play in respect of granting access unless it is in the best interests of the child to doso, having regard to all the other relevant factors. Fourth, an adoption, which is in the best interests of the child, must not be hamperedby the existence of a right of access.

Fifth, access should not be granted if its exercise would have negative effects on the physical orpsychological health of the child. [Emphasis mine] [26] In my view, this is not a case where there exists exceptional circumstances which would compel the Court to consider reserving aright of access. M.M. is extremely young. M.M.’s exposure and time with the Respondent has been quite limited.

I agree with theApplicant that in the circumstances of this matter, it is not in M.M.’s best interest that a right of access be reserved. [27] The Minister’s application for guardianship is granted with no right of access reserved. DATED at Moncton, N.B., this 20th day of January 2023. _______________________________________ Tracey K. DeWare Chief Justice of the Court of King’s Benchof New Brunswick