r v. C, 2016 QCCQ 17805

Protection de la jeunesse — 168719 2016 QCCQ 17805 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 760-41-005169-167 DATE: September 19, 2016 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X Born: [...], 1999 Adolescent ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION OF LE CENTRE JEUNESSE A Petitioner v.

C D Parents ______________________________________________________________________ JUDGMENT ______________________________________________________________________ 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 protection concerning X, alleging her abandonment since March 2016.

At the hearing, the Director revises the reason of endangerment to psychological ill-treatment and seeks the application of various measures until the adolescent’s majority, including her placement in foster care. [ 3 ] The mother agrees to the situation of endangerment. As to the measures, she asks that her daughter return to her care at the end of the school year. She doesn’t agree to follow a parenting class.

She acquiesces to the remaining conclusions sought by the Director. [ 4 ] The Court proceeds in the absence of the father, who is incarcerated in the United States and aware of the motion concerning his daughter through e-mail exchanges with the caseworkers. [ 5 ] The adolescent offers a general admission as to the allegations and is in agreement with the recommendations. She adds having reflected on the duration of the order, stating that although she wants to eventually return home, she prefers the long-term measure with the goal to work on her relationship with her mother.

She wants to ensure a positive evolution and prefers returning before the Court once the situation is clarified to avoid any disappointments. [ 6 ] At the onset of the proceeding, the Court advises the parties of a possible violation of the child’s rights and invites the parties to make representations on this issue.

The Director admits that the procedures for the signature of the agreement on voluntary measures were not respected. [ 7 ] Context [ 8 ] Previous to the pending motion, the adolescent is the subject of another motion for protection, of which the chronology is pertinent to the present evaluation. [ 9 ] In December 2015, the Director of Youth Protection presents motions for protection in regards to the adolescent and her siblings, alleging a situation of endangerment stemming from physical and educational neglect (case file number 760-41-005005-155 for the child X).

A worker from [Child and Family Services A] (hereinafter designated as [CFSA]) is duly authorized by the Director of Youth Protection in these proceedings. [ 10 ] On December 17, 2015, the Court renders the following provisional measures as to all the children:

ORDERS that the children Y, X, Z and A, be entrusted to their mother proving that the mother will be living at the Wellness Center; TAKES ACT that the mother will be living at the Wellness Center; ORDERS that the child, B, be entrusted to his paternal great-grandparents; ORDERS that the children receive medical health services required by their situation; TAKES ACT of the mother’s consent to authorize the Director of Youth Protection to communicate with the school authorities; [ 11 ] The joint hearing on the motions for protection is held on February 17, 2016, following which the situation is taken under advisement by the Court.

Concurrently, there is an order maintaining the status quo of the provisional measures in force. [ 12 ] At the time that the case is taken under advisement, X resides with her mother and her siblings at the Wellness Center in Akwesasne. [ 13 ] On March 23, 2016, X leaves the Wellness Center. She cites having ongoing conflicts with her mother and to not feeling supported by her. She goes to reside with friends. [ 14 ] One week later, the mother also leaves the Wellness Center. The Director alleges that she is expulsed, while the mother indicates that she completes the programming and was subsequently discharged.

A letter from Wellness Center (exhibit M-1) offers little in detail, but does mention a discharge. It further states that the mother returns on different occasions to pick up her remaining personal effects. [ 15 ] On April 4 th , X presents herself to offices of the [CFSA]. She explains that she can no longer reside with her friends and is unaware of her mother’s whereabouts. She asks for help. [ 16 ] A few days later, X transfers into a foster family. [ 17 ] A caseworker with [CFSA] proceeds to the signature of an agreement on voluntary measures for a period of six months (exhibit D-2).

The specific nature of the endangerment is not specified in function of the Youth Protection Act. The adolescent and the caseworker sign the agreement as of April 8, 2016. [ 18 ] An annotation on the agreement indicates that Ms. [Social Worker 1], supervisor at [CFSA], signs off on this form on the same date, as no signature is available. [ 19 ] Although the father gives his verbal consent, he only signs the agreement as of June 7. The mother is not made aware of this agreement, the Director determining that she is unknown whereabouts and has further abandoned her child.

The evidence demonstrates that little efforts are made by [CFSA] at this juncture, to ascertain the mother’s whereabouts. [ 20 ] The Court renders the judgment on the pending motions for protection on April 18, 2016, dismissing these. At no time during its deliberation is the Court advised of the significant changes in the family’s situation nor of the administrative revision of the provisional order. [ 21 ] There are sporadic contacts between X and her mother as of March, although the exact frequency is unclear. X testifies that she starts texting her mother on and off as of the time she leaves.

She pours her heart out. Her mother doesn’t consistently respond to her messages. [ 22 ] Shortly after her mother leaves the Wellness Center, X learns of her whereabouts and she goes there to get some of her belongings (E’s). She also goes to visit her mother at her place of employment ([restaurant A]). [ 23 ] The mother testifies that she leaves her coordinates with the Wellness Center and that she remains at the same household until the month of June, when she returns to the former family domicile. [ 24 ] On May 27, the mother goes and gets X for a visit at the family residence.

The caseworker is aware of this contact. [ 25 ] The caseworker testifies that she repeatedly asks X for her mother’s phone number and that she either said she didn’t have it or said her mother wouldn’t talk to them. She leaves cards at the residence that the mother resides at, asking that the mother contact them. She is aware of where the mother works. Notwithstanding these facts, the motion alleges that the mother is transient and unreachable. [ 26 ] The caseworker learns that the mother returns to the family domicile in June. On June 20 th , she goes to the family home and meets with the mother.

The mother refuses to sign the agreement on voluntary measures. This situation is a reflection of the ongoing status of the relations between the mother and [CFSA]. [ 27 ] The family home is in a state of disrepair, a situation which is chronic and problematic. The mother affirms having made repairs to ensure that it be habitable and expects to seek an inspection confirming such in the short term.

She agrees to be transparent with social services as to this situation. [ 28 ] Notwithstanding the mother’s refusal to sign the agreement on voluntary measures, it is only one month later, namely on July 21, that the Director of Youth Protection files the pending motion for protection. [ 29 ] As to the procedures applied by social services, the caseworker testifies that she followed the instructions of her superiors at [CFSA]. She is no longer employed by [CFSA].

[ 30 ] X’s testimony is emotional and she eloquently explains her suffering as to the situation with her mother and her ultimate decision to leave the family unit. As of her placement in foster care, she expects help in repairing her relationship with her mother working towards her return home. [ 31 ] In her foster family, X is comfortable and secure. She wants to eventually return to her mother’s care, but knows that there is a lot of work and efforts to be made as to the relationship with her mother.

She agrees to remain in foster care until her adulthood, concurrently hoping that circumstances will permit a revision of her placement. [ 32 ] The law [ 33 ] The Court refers to the pertinent articles of the Youth Protection Act (designated as Y.P.A.) : 2.4.

Every person having responsibilities towards a child under this Act, and every person called upon to make decisions with respect to a child under this Act shall, in their interventions, take into account the necessity (1) of treating the child and the child’s parents with courtesy, fairness and understanding, and in a manner that respects their dignity and autonomy; (2) of ensuring that any information or explanation that must be furnished to a child under this Act is presented in language appropriate to the child’s age and understanding; (3) of ensuring that the parents have understood the information or explanations that must be furnished to them under this Act; (4) of giving the child and the child’s parents an opportunity to present their points of view, express their concerns and be heard at the appropriate time during the intervention; and (5) of opting for measures, in respect of the child and the child’s parents, which allow action to be taken diligently to ensure the child’s protection, considering that a child’s perception of time differs from that of adults, and which take into consideration the following factors: (

a) the proximity of the chosen resource; (

b) the characteristics of cultural communities; 52. The director, when proposing to a child and to the child’s parents the application of voluntary measures, must, before reaching an agreement with them, inform them of the right of a child 14 years of age or over and of a child’s parents to refuse the application of voluntary measures. However, where the parents of a child under 14 years of age accept the application of voluntary measures, the director must encourage the child to adhere to the agreement.

Any agreement on voluntary measures must contain the measures most appropriate to put an end to and prevent the recurrence of the situation in which the security or development of the child is in danger. The director must refer the child’s situation to the tribunal if no agreement is reached within 10 days and the situation in which the security or development of the child remain in danger. 52.1 The director may reach an agreement on voluntary measures with only one of the parents where the other parent is deceased or is deprived of parental authority.

The director may also decide to reach such an agreement with only one of the parents where the other parent is unable to express his will or cannot be found despite serious efforts to locate him, or where the latter, having not, in fact, assumed responsibility for the care, maintenance and education of the child, abstains from becoming involved owing to indifference. Such a decision may only be taken by the director personally, and must be in writing and give reasons.

If, however, during the application of the agreement, the other parent comes forward, the director must allow that parent to present his views, following which the director may, with the consent of the parents and of the child, if 14 years of age or over, make certain changes to the agreement if it is in the interest of the child. 91 (…) Where the tribunal concludes that the rights of a child in difficulty have been wronged by persons, bodies or institutions, it may order the situation to be corrected. [ 34 ] Analysis and decision [ 35 ] Situation of endangerment and protective measures [ 36 ] The evidence is to the effect that the relationship between the adolescent and her mother is severely strained.

Conflicts are recurring and the mother is oftentimes insensitive or unresponsive to her daughter’s needs, being overwhelmed with her own personal and family issues. [ 37 ] The mother recognizes this situation and agrees that this is the source of her daughter’s decision to leave and concurrently provokes her placement in foster care as well as the involvement of child protection services. [ 38 ] This situation corresponds to psychological ill-treatment and the effects on X are significant. She no longer feels secure in her home environment and is struggling to maintain her stability.

Although obviously an adolescent with much potential and an ability to seek services, her best interests dictate that protective measures be put in place to ensure her security and development. [ 39 ] The mother is chronically distrustful of the services offered by the Director of Youth Protection through the [CFSA]. Her resistance to their presence and services is contributive to the situation of endangerment and the Court must consider such within the determination of appropriate protective measures. [ 40 ] The application of measures until X’s adulthood is best reflective of her needs at the present time.

The continued difficulties of the family dynamic and the personal challenges her mother faces, all in conjunction with a distrust of social services, result in a decreased possibility of the situation of endangerment being resolved in a short delay. X requires stability in order to evolve and her foster milieu offers such. [ 41 ] As to the request that the mother participate in parenting classes, the evidence is that she has done so through the Wellness Center. The tools are known by her and now the application remains to be pursued.

To this end, it is her cooperation and participation in the follow-up with social services which is required. [ 42 ] The other measures receiving the consent of the parties, the Court simply confirms these as corresponding to X’s best interests. [ 43 ] As to an eventual agreement regarding contacts in the family home, such is contingent to the inspection process confirming that the residence is habitable.

The Court confirms the agreements intervening between the parties to this effect. [ 44 ] Violation of rights [ 45 ] The Court retains the following facts as pertinent in the evaluation of a violation of rights: • The decision by [CFSA] to proceed to voluntary measures despite the provisional judgment being in force; • The decision by [CFSA] to proceed to an agreement on voluntary measures without respecting the process of the Youth Protection Act , namely as to the parent’s consent; • The failure by [CFSA] to take the necessary steps to accompany the child and her family towards the objectives of the law; • The delay before undertaking proceedings before the Court; [ 46 ] Firstly, during the application of provisional measures, the Director could not validly proceed to the signature of an agreement on voluntary measures.

Once the judicial measures are in place, the Director’s mandate is to execute these (article 92 and 93 Y.P.A. ). Should new facts arise justifying an evaluation of the measures in place, the Director may apply immediate protective measures in virtue of

article 46 of the Youth Protection Act and this, for a maximum 48 hour period.

The Court retains exclusive jurisdiction for any further orders revising the measures in place. [ 47 ] In this respect, [CFSA] fails to respect the procedures prescribed by the Youth Protection Act and consequently, for this first reason, the agreement on voluntary measures dated April 8, 2016 is invalid. [ 48 ] Such is the case until the Court dismisses the pending motions for protection. [ 49 ] The Court adds that in view of the circumstances and the issues in play until said decision, it is reasonable to conclude that should the Court have been seized in an opportune manner, there would have been a more diligent and effective response to the child’s needs.

[ 50 ] The agreement on voluntary measures is also invalid as it is not the reflection of the process dictated by the Y.P.A . The authorization to proceed to a voluntary measure without a parent’s signature is an exceptional procedure which can only be personally authorized by the Director of Youth Protection. No delegation is permitted. As such, Ms [Social Worker 1]’s authorization was not sufficient to respect the procedure provided for in

article 52.1 of the Y.P.A . [ 51 ] Further, the evidence establishes that little efforts were made to ensure the mother’s participation in the measures. The mother was neither transient nor unreachable, simply uncooperative. Although the mother is certainly not blameless in this situation, the Director’s obligation to ensure the appropriate measures and inform her of their implication, was disregarded. [ 52 ] Lastly, the delay to present a motion for protection following the mother’s clear refusal to sign the agreement on voluntary measures is also an issue.

At the point at which the Director understands, albeit too late, that the mother is in disagreement with the voluntary measures, it is necessary to act with diligence in taking the appropriate steps, namely seeking a court order. A one month delay does not reflect this diligence. [ 53 ] The objectives, principles and procedures provided by this act provide a system by which there is assurance of respect of a child’s rights and the objectives of this exception intervention in his/her life.

Checks and cross-checks are in place to guarantee that the child and her family are given information and the opportunity to participate in the application of the law. The Director assumes a pivotal role in virtue of the law and is expected to strictly adhere to the intentions and

article of the law. [ 54 ] Such is not the case for X and this results in the violation of the child’s rights on numerous counts. [ 55 ] At the onset, it was required to have recourse to the Court to revise the provisional measures, as there was a judicial intervention. Even after the judgment dismissing the motion for protection and therefore the need for the application of protective measures, [CFSA] continues in its intervention, seemingly disregarding the Court’s decision. [ 56 ] X is placed in foster care from the period of April 8 to July 21 in virtue of an agreement with no legal validity.

Although [CFSA] acts in good faith with the objective of helping the adolescent, their determination of abandonment and conviction of the appropriateness of the agreement on voluntary measures leads to a lackadaisical approach to the situation of endangerment, and little in the way of an effective intervention.

X, who continues to suffer a broken relationship with her mother and live apart from her family, doesn’t benefit from the protective measures which could have served to evolve her situation. [ 57 ] The options chosen and put in place by [CFSA] not only do not reflect the law, but do not permit the diligent application of measures destined to resolve the situation of endangerment.

The mother’s resistance and even outright hostility, towards social services, dictated that judicial measures be sought to ensure the effective protection of the adolescent. [ 58 ] The caseworker as well as her superiors at [CFSA], contribute to the decisions taken in X’s situation, of which the confluence can only lead to one reasonable conclusion: a fundamental misunderstanding of the processes put in place by the legislator within the Youth Protection Act . [ 59 ] The Court therefore determines that the child’s rights were violated. [ 60 ] As to the remedy to correct the situation, the Court receives evidence to the effect that [CFSA] has sought and received further education as to appropriate application of their mandate within the confines of the Youth Protection Act .

As the violation occurred in good faith, the Court considers that these steps are sufficient to engender the revision of the administrative procedures in view of respecting the principles and objectives of the Youth Protection Act and further ensure that the child’s rights are respected in future. [ 61 ] There is no further remedy which can correct the situation, as the legal proceedings provide the necessary conduit for the application of protective measures.

As such, the Court considers sufficient the attribution of blame. [ 62 ] FOR ALL THESE REASONS, THE COURT: [ 63 ] GRANTS the motion for protection; [ 64 ] DECLARES that the security and the development of the adolescent are in danger in reason of psychological ill treatment; [ 65 ] ORDERS that the adolescent be entrusted to a foster family; [ 66 ] AUTHORIZES that the contacts between the adolescent and her mother be determined upon agreement between the parties; [ 67 ] ORDERS that the adolescent and her mother take an active

part in the application of the measures namely: That the mother and the adolescent attend mediation and family counselling; That the mother complete an independent home inspection on her home within the next month, while providing copies of the previous inspection reports prepared by the Enviromental Health Office of the Mohawk Council of Akwesasne to said inspector.

That the mother provide a report of said inspection to [CFSA] within 60 days of the present; [ 68 ] TAKES ACT that [CFSA] reserves its rights to seek an independent inspection of the home, following reception of the mother's inspection report; [ 69 ] ORDERS the mother to furnish, and keep current, her coordinates, including her home address as well as phone numbers; [ 70 ] ORDERS that a person working for an institution or body provide aid, counselling or assistance to the adolescent and her family until [...], 2017;

[ 71 ] DECLARES in virtue of

article 91 of the Youth Protection Act , that [CFSA] violated the rights of the child; [ 72 ] ATTRIBUTES blame to this institution; [ 73 ] ENTRUSTS the situation of the adolescent to the Director of Youth Protection A for the execution of the judgment. __________________________________ BÉATRICE CLÉMENT, J.C.Q. Me Amélie St-Denis Attorney for the Petitioner Me Annie Girard Attorney for the mother Me Karine P. Poissant Attorney for the adolescent Date of hearing: September 19, 2016