THE MINISTER OF SOCIAL DEVELOPMENT Applicant - v. -, 2022 NBKB 193

2022 NBKB 193 Court File Number: FDSJ 190-2021 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: THE MINISTER OF SOCIAL DEVELOPMENT Applicant - and - R. M. (JR.) L. M. Respondents AND BETWEEN: Court File Number: FDSJ 265-2022 ( Family Law Act, S.N.B. 2020, C.23, S.52 ) C.G. R. M. (SR.) Applicants - and - L. M. R. M. (JR.) THE MINISTER OF SOCIAL DEVELOPMENT, Respondents BEFORE: The Honourable Mister Justice Danys R.X. Delaquis DATES OF HEARING: August 29, 30, 31, September 1, and 2, 2022 DATE OF DECISION: October 14, 2022

APPEARANCES : Scott Larson for The Minister of Social Development Patricia Gallagher Jette for R. M. (Jr.) Joshua Adams for L. M. C. G. (did not attend) R. M. (Sr.) – Per Se

SUMMARY: Guardianship DECISION DELAQUIS, J.: OVERVIEW [ 1 ] Two Notices of Application were brought in relation to three children, B.M.-M (7 years old, born […] 2015), T.M.-M. (5 years old, born […] 2017) and S.M.-M. (3 years old, born […] 2019). The children will be referred to as B., T. and S. in this Decision.

The Respondents, R.M. and L.M., are the biological parents of the children. [ 2 ] In the first Application bearing Cause FDSJ-190-21, filed on March 24, 2022, the Minister of Social Development (“MSD” or the “Minister”) is requesting a Guardianship Order pursuant to section 56(1) of the Family Services Act , S.N.B. 1980, c.

F.2.2 (the “ Act ”), seeking the transfer of custody, care and control, along with parental rights and responsibilities on a permanent basis with respect to the three children. [ 3 ] The second Application bearing Cause FDSJ-265-22 was filed on July 4, 2022, by the Respondent’s R.M.’s mother, and her partner C.G., seeking “guardianship of my grandkids”.

They also asked that their Application be heard at the same time as the Minister’s Application. [ 4 ] On July 7th, 2022, the Court ordered that “(…) the application bearing Court File Number FDSJ-265-22 shall be heard immediately following the Application bearing Court File Number FDSJ-190-21 and evidence in one shall be considered as evidence in the other (…”), pursuant to Rule 6.01(1)(

d) of the Rules of Court and subject to the further direction of the Trial Judge. [ 5 ] However, on the fourth day of trial and despite having participated in the trial, R.M.’s mother advised the Court that she wished to discontinue her Application. The other Applicant, C.G., was arrested on the first day of trial, did not participate and filed a Discontinuance of his Application on the last day of trial. The Court will therefore not render a decision with respect to the second Application, as it has been discontinued at the request of the parties. [ 6 ] This matter focused on two central themes.

The first theme was the ability of the parents to meet the children’s needs and to provide them with a safe and secure environment. The second theme related to the father’s drug addiction and use. [ 7 ] In essence, it was the fact that the children tested positive for methamphetamines that sparked the Minister’s belief that guardianship was warranted, coupled with other longstanding concerns related to the needs and safety of the children.

The case rests, to a large extent, on the hope that the father can overcome his drug addiction and use, and that the mother is able to parent the children in this context, with supervision and further assistance, if necessary.

FACTS [ 8 ] I will recite the facts mainly in chronological order to provide a sense of how the file has evolved over time and to better understand how and why the Minister eventually sought a Guardianship Order.

Without minimizing other concerns related to the well- being of the children, L.M.’s drug addiction and use permeates this entire matter. [ 9 ] As the evidence discloses, the Minister had ongoing concerns about the parents’ drug use, their ability to meet the children’s day- to-day needs such as providing a safe and clean-living arrangement, clothing, maintaining, as well as following through on, children's medical and other appointments. [ 10 ] At the Family Group Conference (FGC) held on July 25, 2019, the topic of drug use and storage was discussed with the parents, in addition to other concerns relating to providing the children with a safe and hazardous free home and support for the parents, including a caregiver. [ 11 ] In terms of drug use and storage, L.M. agreed to have random drug screens that would be coordinated by the social worker.

The agreement was that if the drug screens came back dirty the Department would request that L.M. leave the family home until he can demonstrate sobriety by being drug free. This would mean that before L.M. could return home, he would have to have three clean screens within a month. If L.M. does have to leave the home, the Minister would reconnect with immediate family to ensure that R.M. is supported during the period L.M. is away. [Page 32 of the Trial Record]. [ 12 ] The chronology of the file demonstrates that the plan developed at the FGC on July 25, 2019, despite best efforts, did not work.

The chronology will be reviewed first with reference to the Applicant’s evidence [ 13 ] During a home visit on October 7, 2019, the social worker, Cefanie Allain, observed L.M. on the bed watching TV and asked him about his drug use. L.M. indicated that he had not been using drugs and had been “clean for a while”. Ms. Allain attended the home for a further visit on October 10, 2019, and informed R.M. that she received information that he had been using drugs and that drug testing would be implemented frequently. Ms.

Allain indicated in her Affidavit at page 10 of the Trial Record that: (…) [R.M.] said if [L.M.] it has a dirty test, he needed to be removed from the home and I agreed, that it was the plan developed at the Family Group Conference before my involvement on the file and she asked who was going to help her if he needed to leave. [ 14 ] On October 18, 2019, Ms. Allain informed L.M. that she received his drug test and that it was positive for cocaine. L.M. was advised that all visits with the children would be supervised by a third party.

An inquiry was made as to whether L.M.'s mother would be agreeable with that approach and L.M. said yes. That same day, Ms. Allain attended the home and advised L.M. that his positive test for cocaine was of a high dose “(…) so he had either used right before me testing him or he had been using regularly. R. M. said that he must be using at his friend’s house because he did not use at home. I told her that [L.M.] could not stay in the home and we were going to do a safety plan and she agreed.” [Page 11 of Trial Record]. [ 15 ] On October 25, 2019, R.M. advised Ms.

Allain that because L.M. was addicted to cocaine, Methadone or Suboxone would not work, and that Port City recommended detox at Ridgewood. L.M. responded by saying “no” to the Ridgewood option and that “he could stop by himself”. [ 16 ] On November 22, 2019, L.M. was informed that he received a third clean drug screen and that he could return to the home. However, on July 7, 2020, Ms. Allain gave L.M. the result of his drug test from December 20, 2019, which was positive for cocaine and benzos. Ms.

Allain explained that according to the terms and conditions worked out during the FGC L.M. needed to leave the home until he had three clean drug tests. L.M. remained adamant that he did not use cocaine. [ 17 ] On for January 27, 2020, L.M. was again advised that his drug screen was positive for cocaine. However, after two clean drug screens, Ms. Allain informed L.M. on March 4, 2020, that his drug screen was again positive for cocaine. L.M. continued to insist that he had not been using and said that he would put his name on the waiting list for Ridgewood. At that same time, R.M. informed Ms.

Allain that she was pregnant.

[ 18 ] From March 18, 2020, to the end of April 2020, the Province was under a lockdown because of the COVID-19 outbreak. [ 19 ] On April 30, 2020, R.M. informed Ms. Allain that T. had lice. When Ms. Allain observed T.’s hair, it was still full of nits and therefore informed R.M. that T.’s hair needed to be cleaned as the nits would hatch. [ 20 ] At the May 26, 2020, Permanency Planning Conference, attended by various individuals including R.M. and L.M., it was reported that L.M.’s mother, F.M., was helping support the children but that she was tired and needed to return home.

The minister decided that it was going to send a request for a family support worker to work with the family three to four times per week. [ 21 ] On June 25, 2020, R.M. and L.M. were present during a home visit by Ms. Allain who explained that again, L.M.’s drug test came back positive for cocaine. L.M. continued to insist that he did not understand it as he “had not used”. Ms.

Allain also explained to R.M. that she had missed the last two appointments with the family support worker and reviewed the goals for the family, which included ensuring the children were bathed, that their teeth were brushed, to attend appointments, to ensure they had a proper routine, to improve the state of the home and that L.M. provide clean drug screens before leaving. [ 22 ] On June 26, 2020, a drug test was completed with respect to the children. On July 7, 2020, the results of the drug tests confirmed that all three children tested positive.

More specifically, B. tested positive for Cocaine and Benzoylecgonine. T. tested positive for Cocaine/Metabolite, while S.’s test was positive for Cocaine and Benzoylecgonine. As a result, on July 8, 2020, a Notice of Protective Care Placement was executed by Ms. Allain. [Page 35 of the Trial Record] [ 23 ] On July 15, 2020, Ms. Allain spoke with the parents about L.M.’s drug use and encouraged him to get into Ridgewood. However, on July 28, 2020, R.M. informed Ms. Allain that L.M. only attended Ridgewood for three days. Ms. Allain was informed that they asked L.M. to leave as he was not receiving services.

During a home visit that same day, Ms. Allain asked L.M. why he did not stay at Ridgewood, and he informed her that it was because he was not getting along with another patient. [ 24 ] On September 29, 2020, Ms. Allain had a further home visit and discussed ongoing concerns with the parents. The Case Plan was read over with R.M. and L.M. and signed.

The Case Plan contained several objectives including that L.M. will abstain from non- prescription drug use, that he will access addiction support through mental health or Ridgewood Addiction Services, that he will complete regular drug screens at the Department's request and that the parents will ensure that the children always have a sober caregiver. The other objective in the Case Plan was for the parents to have supervised visits with the children at least three to four times a week at their apartment or in the community to determine their readiness to have the children return home.

Concerns raised in the Case Plan related to providing a clean and safe environment for the children during visits, for the parents to have positive interactions and to work on proper discipline. [Pages 37-40 of the Trial Record]. [ 25 ] On October 14, 2020, Ms. Allain again informed L.M. that his drug test came back positive for cocaine. He again stated that he had not been using and indicated that people were using in the building and that's why he tested positive. Ms. Allain explained to L.M. that for every drug screen that came back positive he denied using, even the one for the children. Ms.

Allain tried to make L.M. understand that she could not help him if he was not honest with her. [ 26 ] On November 3, 2020, during a home visit, Ms. Allain attempted to address the problem of rotten teeth with the children as follows: I explained that [T.] had 13 teeth removed as they were rotten. I expressed concern regarding this. I explained that they need to ensure that the children's teeth are brushed regularly. I explained that [B.] had all of his teeth except two removed, T. had 13 teeth removed and she kept seven.

I told her that we could not continue on the same path for [S.]. [Page 17 of Trial r\Record]. [ 27 ] During that same home visit on November 3, 2020, Ms. Allain gave L.M. his last two drug screens and explained that they were both clean. She expressed the importance of continuing along this path. L.M. explained that he stopped going in the other buildings’ hallway. Ms. Allain explained that there was a pattern; that he received a couple of clean tests, then a couple of “dirty” tests. She explained that it was wonderful that he had two clean tests, but she needed to see consistency in sobriety and L.M. agreed.

[ 28 ] Ms. Allain summarizes her November 12, 2020, home visit at page 18 of the Trial Record: I then explained that their custody agreement will be expiring in January, meaning we would need to review it in December. I explained that the department was still concerned around the drug use. I gave him his drug screen results. I explained that he had one clean one and the last one he had was positive for cocaine again. He said that he had not touched anything and that it was because he goes in the hallway and he inhales crack smoke. I explained that it was a pretty high amount for just inhaling.

He said that his children were also high from just inhaling. I explained that he was not living in the hallway. [ 29 ] On December 3, 2020, Ms. Allain attended the parents’ residence and read the Custody Agreement Extension to both of them. Neither parent had any questions, and the Agreement was signed. Ms. Allain asked R.M. if she started her medication for her mental health. R.M. advised that it was expired, and she was waiting to call her physician who was on vacation. [ 30 ] On December 9, 2020, a further home visit took place. Ms. Allain gave L.M. the results of his drug screen which was positive for Benzos.

L.M. indicated that he was prescribed benzos for sleeping, but that he did not have the bottle right now because “he is out but once he has it, he will let me know.” [ 31 ] On December 16, 2020, further drug test results were provided to L.M. which showed that he tested positive for cocaine. L.M. again said that he needed to go to Ridgewood and that he needed help. He was advised that he should call to go on the list for the new year. However, in his opinion, he said that he just needs to call at the last minute and that he would be able to go in.

L.M. admitted that he used drugs at work, but he was not going to work anymore. Ms. Allain explained to him that it was hard for him to isolate himself from everything and that he will need to seek counseling to be able to learn the skills needed to not use drugs. Approximately 10 days later, Ms. Allain received a text message from R.M. advising her that L.M. would be starting the Ridgewood program on January 7, 2021. [ 32 ] On December 29, 2020, L.M. was advised that his most recent drug test was positive for cocaine.

L.M. confirmed that he was scheduled to go to Ridgewood on January 7, 2021, for what he believed to be the 28-day program. [ 33 ] On January 5, 2021, Ms. Allain shared several safety concerns with the parents which can be summarized as follows: they were paying more attention to the three children and not enough to S. in the baby chair as he was left crying without any response from the parents; the home was not clean; T. & B. were reported to be running around in the parking lot without parental supervision; and [L.M.] and [R.M.] used the foster home as a threat against the children when they were misbehaving.

Threats included that the kids would never come back, I explained that the foster home is a safe place for the kids and should not be used as a threat. (…) I explained that [R.M.] had stated [T.] ruins everything she touches and that [L.M.] had replied “Fuck, you fucking got that right” in front of the children. [R.M.] and [L.M.] denied saying these phrases.

I explained this language and phrasing should never be used in front of the children. [Pages 20-21 of Trial Record]. [ 34 ] On February 10, 2021, during another home visit, L.M. stated he was using cocaine for leg pain, and did not feel the doctors took him seriously. L.M. also stated he was not doing crack but does lines of cocaine. Two weeks later, on February 24, 2021, L.M. was informed that his drug screen results were all positive for cocaine. [ 35 ] On March 10, 2021, Ms. Allain gave L.M. more drug screens, they were all positive for cocaine.

She explained to the parents that “the drug use was the first hurdle and then we had to work on the family.” [ 36 ] Shortly thereafter, Ms. Elizabeth Boudreau was assigned the file. On April 14, 2021, she attended the home to introduce herself as the ongoing social worker for the file. Ms. Boudreau received a phone call from L.M.’s mother, F.M., on May 3, 2021, inquiring about having L.M. and R.M. out to her home during her visits with the children. Ms.

Boudreau advised F.M. that she was not able to be the main supervisor at that time “as she had been present when the children tested positive for having cocaine in their systems.” On May 6, 2021, Ms. Boudreau advised R.M. and L.M. that F.M. was not able to be the primary supervisor for the above noted reason. She also

informed R.M. and L.M. that she would be present during L.M.’s “upcoming sentencing appearance at court.” [ 37 ] On May 10, 2021, Ms. Boudreau received a positive drug screen for cocaine for data collected on April 28, 2021. Likewise, she received on May 12, 2021, another positive drug screen for cocaine for L.M. with respect to data collected on May 3, 2021. [ 38 ] On May 20, 2021, Ms. Boudreau attended a case conference for R.M. and L.M. L.M. advised prior to the case conference “that his court date on June 1, 2021, may result in him going to jail.

We discussed recent drug screens and I advised him that his two last screens had been positive for cocaine”. Indeed, Ms. Boudreau received a positive drug screen for cocaine for L.M. on May 20, 2021, for data collected on May 11, 2021. [ 39 ] On July 8, 2021, the file is transferred from Ms. Boudreau to another social worker, Shannon Thistle. [ 40 ] After a request by L.M., Ms. Thistle sent a referral for him to Saint John Community Mental Health and Addictions on July 16, 2021.

A few days later, on July 21, 2021, L.M. was advised that his drug test results so far had been clean and he was encouraged to “keep it up”. [ 41 ] On July 29, 2001, Ms. Thistle spoke with L.M. about reports that he was cheating the mouth swab drug screens and that she would be asking him to perform urine drug screens instead. L.M. consented to this approach. [ 42 ] On August 24, 2021, Ms. Thistle advised the parents that she observed progress with respect to the state of the home, discipline with the children as well as cooking healthier suppers.

She also advised L.M. that she was proud of his sobriety and that it was a big accomplishment. Ms. Thistle however advised that there were a few concerns that remained and discussed more specifically that they were arguing in front of the children “and prompting from the family support worker on safety issues such as the children standing on tables and chairs or not being supervised properly around the hot stove”. Ms.

Thistle described the reaction from the parents as follows: [L.M.] said he and [R.M.] had not been arguing. [R.M.] said that was not true and there had been some arguing between them during visits and outside of visit times. [R.M.] and [L.M.] spoke about how their arguing caused [L.M.] to get arrested the previous week as they were fighting about needles found outside of their apartment. [R.M.] said she spoke about that with social worker Anna Mattie the previous week while I was out of the office I told [L.M.] and [R.M.] that I needed to see less arguing and more consistency with structure and routine in their visits before moving to unsupervised. [R.M.], [L.M.] and I agreed that I would meet with them and FSW Myrriah to develop a structure and routine outline.

I encouraged [R.M.] to connect with the foster parent about what the children structure and routine currently looked like. [Page 52 of Trial Record]. [ 43 ] During that same home visit on August 24, 2021, L.M. advised Ms. Thistle “I won't be able to stay sober if we keep living here”. Ms. Thistle advised L.M. she would e-mail housing to advocate for a transfer for them, but said that she did not have any control over housing. [ 44 ] On September 1, 2021, Ms. Thistle received a urine toxicology screen that was administered to L.M. on August 13, 2021.

The toxicology results indicated that L.M. tested positive for “2009 ng/ml of cocaine metabolite”. On that same day, Ms. Thistle and received information that R.M. was in labor at the Saint John Regional Hospital, and that L.M. was not initially present with R.M. at the Hospital. [ 45 ] The next day, on September 2, 2021, Ms. Thistle received the drug results from the drug test that was administered to L.M. on August 23, 2021. The test results showed that L.M. tested positive for “24.6 mg/ml of cocaine”. Ms. Thistle also went to the Hospital to visit R.M. and her new baby.

R.M. was informed of the plan to have a family member come to the Hospital to pick up the infant when he was discharged; R.M. agreed.

[ 46 ] Ms. Thistle was able to meet the parents at their home on September 9, 2021, to discuss ongoing issues including, but not limited to, the recent positive drug test results for L.M. for cocaine. L.M. advised that he had a “slip up” and only used one time. He also stated that he thought he was testing positive because his neighbors were smoking crack around him. Ms. Thistle encouraged L.M. to speak to NB Housing and to the police, at which time L.M. confirmed that they were aware of what was going on and “did not seem to care”.

L.M. advised that he found it very hard to be sober in their neighborhood as there was a lot of drug use. Ms. Thistle encouraged L.M. to attend the addictions therapy groups that Mental Health and Addictions directed him to. L.M. said he did not want to attend group rehab and only wanted individual counseling. He was advised that Ms. Thistle had been actively looking for a private addictions counselor for him to begin seeing. [ 47 ] A few weeks later on September 27, 2021, Ms. Thistle attended the home unannounced.

She discussed the recent positive drug tests with L.M. who said that this was because of the new job he started working at and the people around him. He indicated that he needed to find a different job. Ms. Thistle advised him to connect with John Howard Society and his income assistance manager. She also asked him why he missed his first addictions counseling appointment last week. After initially trying to blame his counselor, L.M. admitted that he did not go because he did not have the address. [ 48 ] On October 5, 2021, L.M. was advised that he again tested positive for cocaine, but also for methamphetamine.

He thought the cocaine he used must have been “cut with meth”. Ms. Thistle advised him that she was not sure if that was the case because the results showed that he tested much higher for methamphetamine than for cocaine. Ms. Thistle informed L.M. of concern that methamphetamine is highly addictive and can be dangerous. L.M. said that his counselor and him would be exploring resources for him to utilize as well to address his addiction.

The drug test conducted on October 4, 2021, was also positive for cocaine and opiates (codeine). [ 49 ] The drug screen for November 5, 2021, showed that L.M. tested positive for “13826 ng/ml of methamphetamine” and “313.4 ng/ml of cocaine”. L.M. again denied using methamphetamine and repeated his belief that the cocaine was cut with meth. In any event, Ms. Thistle reminded him of her concern that methamphetamine was highly addictive. [Page 75 of the Trial Record]. [ 50 ] On December 14, 2021, L.M. was asked if he would consider going to the detox and the 28-day program at Ridgewood in January 2022.

L.M.'s response was that he would attend the 28-day program, but would not go to detox. He refused to provide a reason to Ms. Thistle about why he did not want to go to detox. Ms. Thistle urged him to reconsider this so he could attend the program at Ridgewood. It was at that point that Ms. Thistle advised both parents that: I spoke with [R.M.] and [L.M.] about the children having been in care for quite some time, and the Department would have to make the decision about applying for guardianship when the current order expires in a few months.

I told are [R.M.] and [L.M.] that if [L.M.] continues to use substances like this, it makes it very difficult to work towards reunification as we cannot have overnights or unsupervised visits. I told [R.M.] and [L.M.] want reunification to be successful but they need to put in some more work. [R.M.] and [L.M.] said they understood. [Page 78 of the Trial Record]. [ 51 ] Ms. Thistle met with the parents on December 29, 2021, to discuss how the Christmas visits were conducted.

She advised them about the incident reports she received about B. electrocuting himself and S. falling off a broken radiator in the hallway and cutting her back. R.M. and L.M. said that B. was fine and did not get hurt or electrocute himself at all. They advised Ms. Thistle that S. getting hurt was not their fault because NB Housing needed to fix the broken radiator. While Ms.

Thistle was trying to speak about her concerns in more detail, R.M. interrupted her to show her a new ring she was wearing that L.M. gave to her at Christmas. [ 52 ] On January 4, 2022, L.M. was provided copies of his most recent drug screens, which were positive for cocaine. One test was positive for cocaine and methamphetamine and the other was positive for cocaine and codeine. L.M. advised that the positive codeine test was from his Tylenol 3 prescription.

The parents were again advised that the Minister would not move forward with reunification if L.M. continued to use drugs. [ 53 ] On January 27, 2022, L.M. advised that he wasn’t sure if he had a confirmed place to attend the detox and 28-day program at Ridgewood. Ms. Thistle informed him that she would call Ridgewood herself to check.

[ 54 ] L.M. was not present during the February 8, 2022, visit. Ms. Thistle was advised by R.M. that L.M. was working shoveling snow. However, it was raining that day. [ 55 ] Six days later, on February 14, 2022, R.M. texted Ms. Thistle to advise that L.M. would be going to the seven-day detox program at Ridgewood. Ms. Thistle advised that arrangements would be made for transportation for L.M. [ 56 ] L.M. completed the seven-day detox program and provided Ms. Thistle with a copy of the Certificate.

She congratulated him and encouraged him to stay connected with his counsellor and to remain open about attending the 28-day program starting in April 2022. However, on February 25, 2022, Ms. Thistle informed L.M. his result from January 28, 2022, before he entered the seven-day program, were positive for cocaine. L.M. asked to skip his next test because he had used a lot just before entering the program and worried that it would still be “in his system”. Ms. Thistle responded as follows: I told [L.M.] I would still like him to complete a test this week.

I told [L.M.] it was very important for him to try to maintain his sobriety as this had been a major roadblock for reunification. [L.M.] began to speak about how he can't stay sober living in their current neighborhood. I reminded [L.M.] that there is drug use everywhere and that his addiction will still follow him if he moves, and it is important for him to use his coping skills he is learning from Nigel bone. [L.M.] and [R.M.] began to express frustrations that “the only reason” they do not have the children in their case is because of [L.M.]’s substance abuse.

I told [L.M.] and that there have also been ongoing concerns with their parenting skills in terms of protective capacities, structure, routine and consistency. [R.M.] and [L.M.] said there were no issues with their protective capacities. I reminded [R.M.] and [L.M.] that the reason the children came into care was because they all tested positive for cocaine because [R.M.] was not able to protect them from [L.M.]’s substance use. [Page 85 of Trial Record]. [ 57 ] At that same visit, on February 25, 2022, Ms.

Thistle had the following discussion with the parents: I reminded in [L.M.] of our PPC meeting on March 4. [R.M.] and [L.M.] asked me what would be happening at the meeting and with the custody order expiring in April. I explained that because the children had been in care for 20 months and we were not ready for them to return home yet, legally we may have to apply for a guardianship order.

I explained that it did not mean we stopped working towards reunification and that we could withdraw the application if things changed and we could move the kids home. [R.M.] began to cry and [L.M.] said he would be getting a lawyer.

I asked if they would be open to another Family Group Conference (FGC) to explore family options. [R.M.] said they have no family and [L.M.] said he did not want another FGC. [L.M.] and [R.M.] said they had to go, so I gave them their bus passes for March and left the residence. [Page 86 of Trial Record]. [ 58 ] A Permanency Planning meeting was held on March 4, 2022, with the parents present. They discussed the fact that the children had to been in care for 20 consecutive months and that very little progress had been made toward mitigating the safety concerns in the home.

Because there were still concerns with L.M.’s drug use and R.M. and L.M.'s protective capacities and ability to meet the children day-to-day needs, that the children were not able to return home at this time and the Minister would be applying for a Guardianship Order for the children. [ 59 ] At the March 17, 2022, home visit, Ms. Thistle advised R.M. that she had received information that L.M. had been using drugs since returning from detox. R.M. simply responded by saying that L.M. had not been talking much.

She said that L.M. had been asking his mother for money again, but that he would not be doing drugs in the home around her, so she did not know. The next day March 18, 2022, a Permanency Planning Meeting was held. The Minister decided that if a Guardianship Order is granted for the children, they would be placed for adoption together and remain in their current foster home until a match with an adoptive home is made. [ 60 ] At the March 23, 2022, meeting, Ms.

Thistle advised L.M. that she had not heard anything from Ridgewood about the 28-day program starting in April 2022. [ 61 ] The Minster filed the within Application seeking guardianship of the children on March 24, 2022. [ 62 ] On April 8, 2022, Ms. Thistle advised L.M. that she was surprised to see him because she had heard he was arrested and in jail. L.M. responded by saying that he was arrested for driving without a license, but was only held in jail for one day. He confirmed that he had a court appearance in June 2022 for this charge.

[ 63 ] On April 26, 2022, L.M. advised Ms. Thistle that he “got a job” but, as a result, he was not attending his counseling sessions. L.M. advised that he was doing some odd construction jobs at that time. [ 64 ] On May 5, 2022, Ms. Thistle informed L.M. that she heard he would be attending the 28-day rehabilitation program at Ridgewood. L.M. responded that “he had planned to but does not see the point in attending now”. [ 65 ] Ms. Thistle advised the parents on May 11, 2022, about information she had received that L.M. had been using drugs right before visits and that he was high during visits.

She informed the parents that that was not acceptable and if true, L.M. could not be present during the visit or there would be no visit at all. R.M. denied this. Ms. Thistle informed R.M. that she “needs to protect the children and tell L.M. that he cannot be at the visit if he is high. …if Myrriah Morehouse feels he is under the influence, she will end the visit.” [Page 129-130 of Trial Record]. [ 66 ] On June 10, 2022, a further home visit was conducted by Ms. Thistle. The family support worker, Myrriah Morehouse was also present. L.M. advised that he was not yet ready to do a drug test at that time.

L.M. was advised that his counselor, Nigel Bone, had reached out to inform her that L.M. is frequently asking to cancel or to reschedule. L.M. indicated that he had recently called Mr. Bone and left a voicemail about scheduling an appointment. Ms. Thistle emphasized the importance of engaging consistently with his counselor if he wanted to be accepted into the 28-day program at Ridgewood in July 2022. She explained that Ridgewood needs to know he will be able to have consistent treatment and follow up to maintain his sobriety. She explained that Mr. Bone was also recommending him to engage in addictions groups.

L.M. then firmly stated “Nope, I'm not doing that. I don't do groups”. Ms. Thistle expressed her understanding with respect to his anxiety around addictions group therapy, but that his counselor felt it would be helpful as much of the work of the 28-day program is group work. It would therefore be good for Ridgewood to see if he can engage effectively in these kinds of groups. L.M. continued to respond by indicating that he did not want to participate in any groups. while Ms. Thistle urged him to think about it and to consider trying it. [ 67 ] On June 28, 2022, R.M. requested that Ms.

Thistle provide her with an updated Case Plan. R.M. and L.M. were provide with copies of the Case Plan the previous summer but could not find it. Ms. Thistle advised R.M. that it was still relevant and that she would provide them with copies to review together, which she did on June 29, 2022. R.M. had signed that Case Plan on June 24, 2021, while L.M. signed it in October 2021 because he was incarcerated in June 2021 when it was originally prepared. [ 68 ] On June 29, 2022, Ms.

Thistle made the following observations of the home during her visit: I told are in the state of the children's room was not acceptable and was not safe for them to be going in during visits right now. I said that the children's bedroom needs to be accessible to them, so they have a place to nap, for timeouts, and to play. The children's playroom also had several piles of toys on the floor and in the closet and there were food and candy wrappers on the floors.

I advised that the garbage needs to be picked up off the floors and they should not have very high piles of toys, as [S.] is small, and these could fall over on her. The baseboards and floors had several piles of dirt on them. The bathroom appeared as if it had not been cleaned in a while. The sink and toilet had a lot of grime buildup, there was feces on the toilet seat and there were several large piles of cat feces in the litter box. I told [R.M.] and [L.M.] that the bathroom needed to be cleaned. [R.M.] said that they had not had a chance to clean since the visit yesterday.

I advised I do not believe that all this mess was just from the visit with the children yesterday. I explained that I am worried the state of the home is continuing to slip and not a priority. I explained that I know they can keep the home tidier than this as I have seen it before.

I encouraged [L.M.] and [R.M.] to stay on top of the cleaning as the home needs to be inaccessible state to have visits there. [R.M.] and [L.M.] repeatedly said “yup” to all my comments. [Pages 137-138 of the Trial Record]. [ 69 ] The Case Plan was modified further to the parties’ attending a Judicial Case Conference on July 8, 2022. [ 70 ] At the home visit of July 13, 2022, Ms.

Thistle advise the parents that support workers needed to stop the children from getting hurt and that it was apparent the last week was a step back as R.M. and L.M. were not able to always prevent the children from injuring themselves because they were not always supervising them closely enough. The parents were advised that support workers will need to step in if the children are about to hurt themselves and that the purpose of this approach is to keep the children safe not to interfere with their parenting. [ 71 ] In addition, Ms.

Thistle spoke to the parents about the broken window of the living room based on multiple reports being received

about it falling or closing on the children's hands and arms. Ms. Thistle spoke to R.M. and L.M. about the children watching them talk to people out of the window and passing things back and forth and that, as a result, the children could not understand that it was not safe to go near the window while it is broken. [ 72 ] In addition, there was a discussion about B. inappropriately touching his siblings and other people recently.

As a result, the suggestion was made to create “a social story” for the parents to go over with B. about appropriate touching. [ 73 ] The updated Case Plan was reviewed line by line with R.M. and L.M. at the July 13, 2022, home visit. R.M. and L.M. indicated to Ms. Thistle on multiple occasions that they did not understand what a word or phrase meant in the Case Plan and, as a result, Ms. Thistle “broke it down with them until they demonstrated that they understood.” Ms. Thistle identified the changes from the previous plan for each section, and which activities from the previous plan had still not been achieved.

After reviewing it, the parents signed the Case Plan. [Page 144 of the Trial Record] [ 74 ] On July 25, 2022, Ms. Thistle received a telephone call from R.M. who was speaking very quickly and loudly and sounded as if she was crying. R.M. was yelling into the phone. She stated that Myrriah Morehouse ended the visit and “took the kids back” and then yelled “you guys are just against us!” and ended the call. [Pages 144-145 of the Trial Record]. [ 75 ] The incident was discussed on July 27, 2022, during the home visit. Ms. Thistle had discussed what transpired with Ms.

Morehouse, and advised the parents as follows: ii. After coming inside, Myrriah waited 5 minutes in the home with the children for [L.M.] to get out of bed. iii. After 5 minutes, she prompted [R.M.] to wake [L.M.]. iv. [R.M.[ spent approximately 5 minutes trying to wake up [L.M.], during which time [R.M.]could be heard saying “get up or the kids will have to leave”. v. B. Could be heard at this time saying “[L.M.] up! [L.M.] up!” vi.

After those approximately 5 minutes, [L.M.] stated he was not getting up, at which point [R.M.] came out into the living room and yelled at the children to put their shoes on and to leave. Myrriah attempted to speak to [R.M.] about the situation, at which point [R.M.] yelled “get out!”. vii. The children were very upset, and [B.] was asking for a hug but was ignored by [R.M.] The children were crying, and [R.M.] had yelled for them to leave, so Myrriah took them to her vehicle. viii.

Myrriah waited an additional 5 minutes with the children in the vehicle before leaving and offered [R.M.] the opportunity for [L.M.] to leave and for [R.M.] to calm down and resume the visit, but [R.M.] refused.

d) After relaying the above information, I asked [R.M.] and [L.M.] if they felt Myrriah's portrayal of the event was inaccurate at all. They did not dispute it.

e) I told [R.M.] and [L.M.] I was very saddened and concerned by this incident as it was clearly very upsetting for the children. I told them I understand that the situation would have been upsetting for her, but that it is her job as a parent to stay calm for her children. I explained that yelling at them to get out and slamming the door behind them was not appropriate. I stated that we have spoken before about [L.M.] needing to be awake, alert, and ready to parent, or he cannot be at the visit.

I said this all could have been avoided if [L.M.] got up and either left so [R.M.] could have the visit with the children, or if [L.M.] had gotten up prior to the visit and gone to another location if he knew he was not going to be able to parent on that day.

f) I told [R.M.] that the way she reacted to the situation indicates to me that she is overwhelmed and not coping well. I told [R.M.] that my understanding is that she has not attended a counseling session with Ashley Saab in quite some time. [R.M.] agreed with this. I

advised [R.M.] to call Ashley Saab to make a counseling appointment, as that service is being paid for by the Department to help her cope with stress and gain new coping skills.

g) I suggested to [L.M.] that he contact Nigel Bone to make a counseling appointment as he had not done so in a while. [ 76 ] On July 27, 2022, after Ms. Thistle left her home visit with the family, she received a text message from R.M. advising that L.M. was accepted into the 28-day treatment program at Ridgewood Addictions for the month of August 2022. [ 77 ] On August 17, 2022, Ms. Thistle again attended the home for a scheduled visit. L.M. joined by telephone as he was attending the Ridgewood Addiction Center treatment program. Ms.

Thistle summarized her conversation with L.M. as follows: a) [L.M.] said he is doing well and is really enjoying the program at Ridgewood. I told him I was happy to hear this. I advised him that I had received a copy of his drug test results from August 2nd, 2022, and it was negative for any illicit drugs. I told him I was happy to see this as he deserves to be healthy and sober. I advised [L.M.] I would provide him with a copy of the test results when I saw him in person.

I told him he still has a long road ahead of him with his addiction recovery and stressed that meeting with his addictions counselor regularly will be important for him when he completes the program as he has struggled to maintain addictions counseling in the past and has struggled to maintain sobriety as well. [Pages 146-147 of Trial Record]. [ 78 ] During this same visit on August 17, 2022, Ms. Thistle also discussed an incident report she received that R.M. “bit B. on the buttocks purposefully.” R.M. admitted that she did so, but stated that she was just “play nibbling”. Ms.

Thistle explained to R.M. that she felt this would have a negative impact on B. because “(…) after returning to the foster home from the visit where she bit him, [B.] bit another child and soiled his pants”. [Page 147 of the Trial Record]. [ 79 ] Mr. Holmes, the foster parent, confirmed that: “[B.] made it clear to me that [R.M.] bit his butt. I asked him if it hurt, and he said yes. The next morning, [B.] bit his sister on the bum. A couple of hours later, he [B.] had an incident in his pants. This was out of character as he had not done this since way back in the winter.

This situation certainly set him back.” [Page 202 of the Trial Record]. [ 80 ] L.M. states in his Affidavit filed August 11, 2022, that: I have struggled with drug use for a long time. Cocaine has generally been my drug of choice. I'm scheduled to attend a 28-day detox program at Ridgewood from August 15th, 2022, until September 13th, 2022. I have made arrangements to ensure I am able to attend court each day from August 29th until September 1st, 2022, for the hearing of this matter. Visits with the children go well.

We play outdoors, go to parks, and watching movies as a family when the weather is not fit to be outside. The respondent [R.M.] and I coordinate to make sure all the children are supervised and safe during our frequent visits. We interact well with the support workers who attend. My primary position is the children should be returned home to live with myself and the respondent [R.M.] because we are able to care for them appropriately.

We will continue to cooperate with social workers and support workers involved in our case to make additional progress. [Page 210 of Trial Record]. [ 81 ] R.M. also filed an Affidavit, on August 19, 2022. She states that: 2. When the children were taken into protective care in July 2020 was told I it was because the house was messy. 3. In addition to that the respondent father was said to be using drugs in the home and the children were tested and showed positive for cocaine. 4. I do not dispute this finding but state that she, I do not use drugs, and I was unaware that the father was using. 5.

I told the social worker that the children and I would separate from the father until he tested clean for drugs.

15. I believe the minister has taken the position that I am not capable of parenting because I am “delayed”. I do not agree and sputes [sic] this and this ministerial attitude is simply prejudice against me because I cannot read or write. 16. I want my children returned to my care and will follow and recommendations that the social worker asks of me, even if their father has to be supervised. [Pages 213-214 of Trial Record]. [ 82 ] I will now refer to the oral testimony given at trial. [ 83 ] The children are being followed by several healthcare professionals. Dr.

Todd Lambert, a pediatrician, testified after having been declared an expert in this matter. Dr. Lambert has followed the children given their developmental needs. B. requires special care and needs as he is almost non-verbal. The treatment included referrals to occupational therapists and speech pathologists at school. B. uses a tablet in school to communicate with help from staff. Dr. Lambert indicates that he is still awaiting a genetics consultation for B. and plans to see him again in December 2022. [ 84 ] T. Is followed by Dr.

Rizk a pediatric neurologist regarding her seizures, in addition to seeing FACE, an occupational therapist and a speech pathologist. [ 85 ] Dr. Lambert confirmed that T. is being followed for behavioral difficulties with her parents and that she continues to take medication for her seizures. In November 2021, it was reported that T. was hyper and “difficult to regulate”. T.’s last visit with Dr. Lambert was on May 16, 2022. At that time, it was reported that she had “an IDA done for school readiness and did not pass”. She has no seizures on her Valporate and Zarontin with continued follow-up with Dr.

Tamer Rizk.” [Page 177 of Trial Record]. [ 86 ] The last time Dr. Lambert saw S. was on November 16, 2021. At that time, he had no concerns with respect to her general health and growth. [Page 178 of Trial Record]. [ 87 ] Mr. Holmes is the foster parent for the children. He works with B. as well, by using word lists. According to Mr. Holmes, B. has taken great interest in the word list and has shown modest improvement in his vocabulary. [ 88 ] Mr. Holmes recalls a significant incident involving B. in November 2021. As a result of a conversation he had with Ms.

Morehouse, he asked B. if he could explain why he wet his pants in the car, laughed about it in addition to other behaviors toward his parents. Ms. Holmes stated that B. responded as follows: b. As a result of that conversation, I asked [B.] if he could tell me why he was behaving like that. He told me he could, so I got him his tablet, on which he put “I hate family”. I said, “what?” and he again put “I hate family” on the tablet. I then said: “who do you hate?” and he said, “momma”. c. I asked my wife to come out, at which time I asked [B.] to tell her what he had said.

He repeated “I hate family” and said “momma” again. d. We followed up with him, but he couldn't seem to say why, but he certainly was adamant about what he had put down. [Page 200 of Trial Record] [ 89 ] Mr. Holmes also confirms in his Affidavit that the children “are improving greatly on their speech and social interactions. They absolutely love going to church, shopping, and other outings. These are some of the most well-behaved children we have had in our home. They are loving, caring, and want to help with anything they can. They are real pleasers.” [Page 201 of Trial Record]. He further stated:

38. In

summary, we love having these children in our home. They are a joy to have around, and we are seeing great progress in their development. My feeling is that [B.] can, and will, in the right environment, continue to make improvements in his communication abilities. He is very determined. Sometimes he is using three-word sentences and picking up new words on a regular basis. He is working very hard. He has also learned to play a lot more lately. For example, he had a doll that he tucked up his shirt and was pretending to be pregnant. He was having a great time showing off his new baby in his belly.

He also loves pretending he's a dog and goes around on all fours barking at us. 39. [T.] has started to work hard on her speech as well. She is learning the proper use of words such as I and me. For example, if she said quote “me” want to go outside, she will correct it to “I” want to go outside. 40. [S.] is making great progress in her words as well; she is able to communicate most everything to us. [ 90 ] Mr. Holmes testified that the children sit and eat properly at dinner time. They are well-mannered and dress themselves. He can take them anywhere and do anything.

In July-August 2022, B. went to the dentist and only had two little teeth remaining. The other teeth had to be extracted and a referral was made to an orthodontist on August 19, 2022. B.’s teeth will need extensive “guiding”. T.’s speech is very “choppy” according to Mr. Holmes. She does not speak full sentences, so he spends a lot of time correcting and helping her. S. is doing well and can communicate properly. The children are in day care when they are not in school. They do not fight between them when they are in his home. [ 91 ] On cross-examination, Mr.

Holmes confirmed that B. is gaining more and more words and is up to about 40-50 at present. He said these children were the quickest to settle in based on his long-standing experience as a foster parent. Mr. Holmes already has seven children and confirmed that it is not his plan to adopt the children in this matter. [ 92 ] Nigel Bone is a Registered Psychotherapist and a Licensed Counselling Therapist who has been working with L.M. “on and off” from September 29, 2021, to June 1, 2022. Mr. Bone was declared an expert in counselling therapy and psychotherapy. [ 93 ] Mr.

Bone provided to L.M. therapeutic support to assist him in overcoming his addiction issues. Their sessions “were also meant to provide therapeutic support to L.M. in general as he engaged in his ongoing child protection case at that time.” [Page 204 of the Trial Record]. [ 94 ] Mr. Bone’s evidence is that he has not provided a formal diagnosis to L.M. However, L.M. has disclosed to him his history of anxiety and addictive tendencies “that result from negative coping due to grief/bereavement bought on by the death of his father.

Notably, [L.M.] stated that the onset of his self-disclosed mental health history predated his current involvement with CPS/DSD.” [Page 205 of Trial Record]. Mr. Bone’s conclusion is: 25. [L.M.] and I had our last session on May 3rd, 2022. By completing the 8-day detox program at Ridgewood treatment center in February of this year, [L.M.] demonstrated a genuine effort toward trying to overcome his cocaine addiction. My hope and recommendation would be that he continued to engage in such recovery efforts and programs.

He could also benefit from further grief/ bereavement counseling as the loss of his father seems to be a major trigger for him with regards to substance abuse. Finally, [L.M.] had poor compliance with attendance; However, when present, he appeared to take his treatment seriously. [Page 206 of Trial Record]. [ 95 ] Mr. Bone acknowledged that there was a delay in L.M.’s treatment due to non-compliance. Mr. Bone was not aware that L.M. was currently enrolled and taking the 28-day Detox program at Ridgewood. He was unsure about the delays, and how L.M. was able to get into the program.

He did say that individual accountability has to “come from within” and said that it was “a bit of a push” that the waitlist accounted for the delay in L.M. getting into the program. [ 96 ] Ashley Saab is a therapist employed with Family Plus Life Solutions since 2019. In January 2021, Ms. Saab received a referral with respect to R.M. through MSD. From January 2021 to the time of trial, R.M. attended 5 out of 15 scheduled visits. Some of the reasons provided for missing so many appointments include scheduling conflicts, illness, and an expired counseling requisition. As of the

time of trial, Ms. Saab and R.M. do not have any other sessions booked. [ 97 ] Ms. Myrriah Morehouse worked as the Family Support Worker (FSW) in this matter and, as a result, spent a considerable amount of time with the family supervising visits from December 22, 2020, up to at least July 28, 2022. She has a Diploma in Child & Youth Care with addictions from Eastern College. [ 98 ] Ms. Morehouse also worked with the parents as a parent coach to help them identify issues with which they need help. Despite efforts to

schedule regular parent coaching sessions, many of them have been cancelled and, as a result, Ms. Morehouse performed a lot of “in the moment” parent coaching and guiding. The evidence reveals that that process was not smooth. Ms. Morehouse and the parents did not see “eye to eye” on alleged parenting issues and/or how R.M. and/or L.M. should parent the children. [ 99 ] Ms. Morehouse testified that the parents have not made much progress on parenting since she started working with them.

She described her frustration as follows: Part of my frustration with this lack of progress is that sometimes the parents make progress for a small time, but then fall back to their previous parenting behaviors. One of the roadblocks to progress I have found with the parents is their lack of understanding why a particular parental behavior is beneficial to the children, or another is harmful.

When they do make progress and practice the behavior we discuss during the parent coaching sessions, it is because they are simply just doing what they are told, not because they understand why the behavior needs to be changed. For example, the children do not fear getting burnt in the chicken kitchen: this raises concern for their safety in the kitchen. However, the parents didn't understand this risk, and the children were burned by pots on the stove multiple times before the parents seem to be aware that they needed to be more conscious of them in the kitchen. [Page 160 of the Trial Record]. [ 100 ] Ms.

Morehouse expressed several concerns about the parents’ parenting of the children and gave examples.

They include: inappropriately and inconsistently applying discipline; failing to provide appropriate supervision of the children; L.M. often falling asleep during visits or being asleep when the children arrive for a visit; R.M. often feeling overwhelmed particularly when L.M. is absent; a lack of understanding about appropriate feeding practices including excessive amounts of food, raw or improperly cooked food or food that has been improperly stored including excessive amounts of sugar in the children's diet; inconsistently implementing strategies put in place by various health care providers to assist them in working on their therapeutic goals; yelling at each other and/or the children and struggling to keep the home clean. [Page 165 of the Trial Record]. [ 101 ] Ms.

Morehouse concludes after spending almost two years with the family that: 25. I note that the parents have not substantially changed what they do with the children over the past approximate year and a half I have been working with them. However, starting in about November 2021, the children started making progress in their developmental goals in leaps and bounds. 26. I continue to work with [R.M.] and [L.M.] on parenting the children and supervising the visits.

Unfortunately, although both [R.M.] and [L.M.] clearly loved the children dearly, they continue to struggle significantly to parent them appropriately. [Page 175 of Trial Record]. [ 102 ] In her viva voce testimony, Ms. Morehouse said she observed cat feces in the home for weeks and flies around human feces as well. The children are often dirty. According to Ms. Morehouse, the children yell at each other or back at the parents frequently. She described incidents of inappropriate behavior such as, for example, when B. put his face into T.’s crotch and began “humping” his sister. T. attempted to push him away.

The parents reacted by shouting at B. and telling him that his behavior was inappropriate, while T. was very upset. Apparently, B. does not know “the line” and often crosses it. They tried implementing “social stories” to help B. better understand, but according to Ms. Morehouse, the parents did not do well with them either. The parents “don’t get through them (social stories)” and they are not consistent.

[ 103 ] Ms. Morehouse also testified that certain medical information about the children is not shared accurately between the parents. For example, Dr. Rizk advised that T.’s new glasses were not helping her seizures, but R.M. informed L.M. of the opposite. [ 104 ] Cross-examination of Ms. Morehouse by counsel for R.M. was tedious, but not significant. It focused mainly on the minutiae of parenting and the differing perceptions of what is right and wrong. The task of guiding parents about how to parent is not easy. Ms.

Morehouse admitted that it is possible that R.M.’s view of yelling is different than the one espoused by her. Her task was to observe and report and that is what she did. Some visits were “ok” and others were “totally different”. It was suggested that the proper level of sugar to feed the children was not appropriate, i.e. the children should not have candy every day. Ms. Morehouse relies on the Canada Food Guide. Ms. Morehouse admitted that parenting can be frustrating, however stated her concern was when R.M. becomes overwhelmed, that it presents a safety risk.

But then she could not provide a specific event when pressed on the point. [ 105 ] It was also suggested on cross-examination that Ms. Morehouse, and indeed the entire MSD staff, did not take into consideration R.M.’s literacy and it should have been tested to better teach her parenting skills. Ms. Morehouse responded by saying that R.M. reads books to her children without any difficulty and that she discussed with them different ways to meet their personal needs.

She further clarified on re-direct that she took steps to make sure the parents understood by repeating words or phrases to them in different ways. [ 106 ] Ms. Morehouse admitted that the children do not resist very much when asked to leave the visit but on occasion, they “are done” and want to go. They do enjoy seeing their mother and seek the attention of their parents. [ 107 ] On cross-examination by counsel for L.M., Ms. Morehouse admitted that she did not include in her Affidavit reasons why L.M. might be “tired” and want to sleep, such as constant noise from the neighbors and long working hours.

She has had “hundreds” of visits with this family. When pressed on why her demeanor might be different because counsel for L.M. was more friendly, her response was: “It is not my job to be friendly to you sir.” Ms. Morehouse became somewhat argumentative when it was suggested to her that her Affidavit was simply a snapshot of what happened over “hundreds of visits”. [ 108 ] Andrea Pelham is a Speech Language Pathologist with 33 years’ experience. She works at the Saint John Regional Hospital. She assesses and treats pre-school children and worked with T. and S. Ms.

Pelham was declared an expert in the field of speech pathology with a specialty in pre-school children. T. has significant expressive and receptive language delay. However, T. continued to have difficulty with her speech despite having made some nice gains. T. is at risk of losing employment opportunities because of her literacy needs because “literacy leads to all subjects in school”. T. was discharged in September because she started school and she will therefore be followed there instead. [ 109 ] According to Ms.

Pelham, S.’s understanding of language is below average, however her “expressive” language is in the normal range. She needs follow up to ensure proper progression. [ 110 ] Ms. Pelham testified that R.M. attended almost all of the visits with the children. However, the parents’ understanding of the goals that Ms. Pelham wants to implement are somewhat limited and that they sometimes “go off track or don’t follow up”. Ms. Pelham gave an example and further stated that R.M. was on her phone during an appointment. [ 111 ] On cross-examination, Ms. Pelham was asked if R.M.’s literacy was a relevant consideration.

She responded by saying yes and that she had provide her with a handout. It would be a situation where it would a “watch and learn” with R.M. Ms. Pelham confirmed that R.M. could read books at the pre-school level to T. Ms. Pelham’s client is the child; but it is always good to give to the parent’s information as simply as possible in any event. [ 112 ] Ms. Lana Irish is employed by MSD as the Supervisor for the Adoption Program. She explained that the plan for the children, if guardianship is granted, is to try to find an appropriate match for their adoption. This process can take months.

The process is understandably tedious and extensive. In this case, Ms. Irish was asked about prospects for adoption where the children have developmental needs. Her evidence is that most applicant parents understand the context of adoption especially after they take the PRIDE course. This would not create much less of an opportunity for adoption in her view. [ 113 ] It was suggested to Ms. Irish on cross-examination that her adoption plan was “ify” because she is not sure who the adoptive parents will be.

She indicated that there are two sets of parents that are open to adopting 3 or more siblings and that the screening is complete. Ms. Irish was not able to compare plans because she does not know the parents’ plan. It was further suggested by counsel for R.M. that these children come from a “culture of socio-economic poverty” and that they are at a disadvantage. They were born into a

cycle of poverty. The children may be adopted by a “middle class family” and that part of the assessment is whether the parents can afford adoption. [ 114 ] Ms. Cefanie Allain has worked as a social worker since 2019. She acted as the ongoing social worker in this matter from 2019 to April 2021. Ms. Allain related the initial concerns about drug use, that the children tested positive for cocaine and that allowing drugs in the home was akin to failing to protect the children. She testified that during her involvement in the file there was no change in drug use. The pattern was a clean test then more “dirty tests”.

There was no consistency. She described the behavior of the parents as aggressive toward one another and that she had to divide them to make them more positive as a result. The behavior between the parents depended on the day. If L.M. was removed from the household, the situation became overwhelming for R.M.to parent alone. [ 115 ] Ms. Allain admitted in cross-examination by counsel for R.M. that she had never observed L.M. in an obviously high state, but that he was in the bedroom. In April 2021, she believed that reunification was still viable at that time. Ms.

Allain admitted that she never asked to have R.M. tested for her IQ level or literacy level. In other words, she was not aware of R.M.’s literacy issues. No clear question was posed and as a result, no clear answer was provided, as to why no such testing was performed by MSD. Ms. Allain confirmed that she never removed the children due to “a mess in the house”, contrary to the Affidavit evidence of R.M.

She felt that R.M. struggled answering the children’s day-to-day needs and that she would not follow up on recommendations regarding hygiene such as the children’s teeth and other information from health care professionals and workers. R.M. needed a lot of prompting at visits, so she put the parenting coach in place, Myrriah Morehouse. [ 116 ] Ms. Allain also agreed that supervised visits can be ended if there is danger to the children and that did not happen at any time while she was the social worker on the file. [ 117 ] Shannon Thistle was the social worker who was assigned to this file in July 2021.

She has seen the children in the foster home once per month, when they are with the parents and when they are at daycare. She also observed B. at school on occasion. Ms. Thistle testified that she has a concern surrounding the consistency and adequacy of therapeutic needs provided to the children who have developmental needs in this case. It is important to understand the goals and why they are implemented in order to have success in helping the children.

She explained that the social stories that were implemented in terms of B.’s behavior are individualized for each child and that it was important to repeat them as much as possible to change behavior. This was especially important in B.’s case given his inappropriate behavior. Ms. Thistle provided transportation to the parents by giving them bus passes that they were selling in order to fund other concerns. This was a concern in L.M.’s case because of the fear he would be selling the bus passes and using the money to buy drugs. Ms.

Thistle testified that a major obstacle in this case has been L.M.’s drug use. [ 118 ] Cross-examination of Ms. Thistle revealed that her main concern at the time the children were apprehended was L.M.’s drug use and R.M.’s responsibility to protect children from drugs, which she was unable to do. One year later, the same concern existed, and the children were still at risk. MSD wanted to see if progress would be made in terms of protection from drugs and no such progress was established. She never said that if L.M. was not there that the children would be returned to her.

MSD had tried that in the past on this file and it didn't work. R.M. was still struggling with day-to-day needs and parenting. Although there were concerns about her parenting, MSD never believed that she was completely unable to do so. When asked about why a parenting assessment was never performed on this file, Ms. Thistle testified that her supervisor felt it was not necessary. [ 119 ] Ms. Thistle appeared at times during her testimony to be somewhat evasive in providing a clear answer to certain questions.

However, that may be a function of the way several questions were posed to her on cross-examination by counsel for R.M., which the Court had difficulty following on occasion as well. In any event, the parents’ felt that Ms. Morehouse was interfering too much and therefore not giving them a fair chance. Ms. Thistle relied on the information provided by Ms. Morehouse and read her reports. Furthermore, Ms. Thistle believes that Ms. Morehouse was reporting the facts objectively. [ 120 ] When confronted with the idea that it would work with the children staying if L.M. “moved out”, Ms.

Thistle disagreed and recalled that that approach had been unsuccessfully tried already. After all, L.M. was in fact away when he worked or was incarcerated, and R.M. seemed overwhelmed during those times as well. [ 121 ] On cross-examination by counsel for L.M., Ms. Thistle agreed that the parents’ strengths were not discussed in front of the children. As a result, Ms. Thistle agreed that the children never really knew when their parents were doing “a good job”. Ms.

Thistle further testified that in her experience, addiction is too complex to simply fix it by moving to another location as L.M. was suggesting. [ 122 ] R.M.’s mother testified that in this case, she had concerns for the children’s safety. The parents love their children.

[ 123 ] R.M. testified at the trial that she does not know what a person looks like when they are high. Her evidence is that she therefore did not know when L.M. was high or not during their relationship. She described B. as a clam and good kid who has issues with speech and behavior. R.M. further confirmed that T. has speech developmental issues and that takes medications for her seizure disorder. [ 124 ] All the children are different in terms of discipline and sometimes different “techniques” are required. For example, T. is a hands- on learner and catches on easily.

For his part, B. does not do well without his siblings according to R.M. [ 125 ] R.M. explained that she went to modified Grade 12. She can read, but not long sentences. [ 126 ] R.M. does not agree that she is unable or unwilling to provide adequate care, supervision or control of the children. She says it’s “not true” and added that “I try to do it”. She does not understand “adequate”. She indicated that she cared for B. for 3.5 years without intervention and while he had some health struggles after birth. [ 127 ] The relationship between R.M. and Ms.

Morehouse was “okay” at the beginning, but it is stressful now because she “butts in too much”. For example, Ms. Morehouse tells her to “go there” when the children are simply playing. Ms. Morehouse is constantly telling her what to do in terms of discipline and criticizing what type of snacks she gives the children. R.M. then testified that: “I am a soft person” and if all the children want something, she gives it to them. Feeding the children can be a challenge.

B., for example, has very few teeth, so he will not eat meat unless it is cut up in very small pieces. [ 128 ] R.M. testified that the children enjoy visiting with F.M., their grandmother. She plays with them, reads books and takes them for walks. R.M. has a bond with her mother but it is not strong. The children however ask to call their maternal grandmother a lot. [ 129 ] R.M. denies endangering the children by allowing drugs into the home. In fact, she denies knowledge of any type of drug use because she is unable to tell if L.M. is high or not.

She denied seeing L.M. do drugs last year and in fact testified that she had never seen him use drugs. She has never been asked to do a drug test. She has never given L.M. any money for drugs. If he asks, she says no. She agreed that she is not the “perfect parent”. [ 130 ] There were several aspects of Ms. Morehouse’s testimony that R.M. disagreed with. There are different perceptions of what “yelling” means according to R.M. She admitted that she has raised her voice when she is overwhelmed and stressed, but denies yelling in the sense of the term used by Ms.

Morehouse. [ 131 ] Part of her plan is to keep the children at Glen Falls School if they lived with her. B. would not sit by himself on the bus because of his special needs. She would use time outs and explain why. [ 132 ] R.M. testified on cross-examination that it is not her responsibility to wake up L.M. when he is tired and sleeping. She said that visits go well even when L.M. is in bed.

She points to the fact that she has been parenting well since L.M. recently started his 28-day Program at Ridgewood. [ 133 ] On cross-examination, R.M. maintained that she does not know what L.M. was doing in the room at the time when the children tested positive for cocaine. She has no concerns with respect to her parenting. She denies asking Mr. Holmes for money, contrary to his evidence at paragraph 6 of his Affidavit [Page 199 of the Trial Record]. She testified “it wasn’t me” and that she never received any money from anybody at all.

She does not know when to leave the home due to drugs if she can’t keep track of L.M. She would only know after a drug test. R.M. denied certain incidents involving her and L.M. yelling and fighting in front of the children [i.e. Page 74 of Trial Record, paragraph (iv) and Page 126, paragraph (m)]. R.M. further explained on cross-examination that she was on occasion feeling a lot of stress “on different things”, which explains her decision to “hang up” on Ms.

Morehouse as she was trying to address parenting concerns. [Pages 21-22 of Trial Record]. [ 134 ] R.M. confirmed that L.M. was in jail “only once”, probably in July 2021, and that he had to wear a bracelet when he was released. When L.M. is not there, she does get overwhelmed. However, even though she must try to do multiple things at once, she “gets it done”.

[ 135 ] F.M. is L.M.’s mother. She has helped the parents with housework and with the children as well. She testified that she has never seen him when he is under the influence of drugs with the children present. She added that “I can tell when he is high”, that she can “tell by his eyes” because “I have seen him high a couple of times”. In those situations, he “acts normal” and is “still happy when he is high”. She was present when the children tested positive for cocaine. When asked what she would do differently if confronted with the same situations, she testified that she would make him leave.

L.M. was in any event, “good with the kids” when he tested negative. Lastly, F.M. explained her activities with the children and that B. requires a lot of patience. According to F.M., Ms. Morehouse “steps in way too much”. F.M.’s plan is to visit the family every other day. Her relationship with R.M. is good. If L.M. can’t be unsupervised, she said he could stay at her place. [ 136 ] At the time of trial, L.M. was enrolled in the 28-day Program at Ridgewood. He confirmed seeing his children four days per week all at the same time. He sees them less because they are back in school.

He said if the children lived with them, he would take them to the school nearby. B. has speech problems but is doing better now. B. catches on quick. B. Likes to play outside in sand and gravel and at the parks. L.M. taught B. to swim at the Aquatic Center. [ 137 ] L.M.’s drug problems have been with him for quite some time. He is trying to work through how the drugs affect him right now while at Ridgewood. He has learned how to avoid cravings and develop routines. One of the biggest triggers for L.M. is in the area where he lives. There are drug dealers everywhere. He is constantly offered drugs on the street.

The house where he lives with R.M. is “falling apart” with mold, pipe and roof issues. He has called NB Housing to try to address this problem but to no avail. [ 138 ] L.M. works as a jack of all trades. He sometimes works at night which makes him sleepy during the day when the children visit. He is paid cash but buys dope with the money he earns or sometimes spends it “on the house”. His plan, moving forward, is to give the money to somebody else and not buy dope. [ 139 ] In terms of parenting, L.M. says he has been parenting for 14 years so he knows “the gist of it”. He has been sober for 23 days.

It is his intention to go back to see Nigel Bone after he completes his program at Ridgewood. He also spoke of his “prison time” and explained that he was involved in a high-speed chase and as a result, he did one month in jail and four months on house arrest. That was almost one year ago. He confessed to having a fairly long criminal record that involved crimes of theft, possession of stolen property and possession of Percocet. [ 140 ] L.M. says he has a loud voice, but does not yell at the children or at R.M. He has however raised his voice, especially when B. head butted and punched him.

He has never hit the kids. He attended some parent coaching sessions but feels that Ms. Morehouse “steps in too much”. He works with B. on his speech during visits in addition to doing various activities with the other children. [ 141 ] L.M. described his relationship with R.M.’s mother as “rocky”, but that the children bond with her. [ 142 ] L.M. testified that he will stay out of the drugs and leave the house if necessary. He is prepared to “do anything” at this stage. [ 143 ] Perhaps not surprisingly, cross-examination of L.M. focused on the drug issue and his criminal record.

L.M. agreed that the first hurdle is to get out of the drugs but admitted that he was still using at the beginning of August 2022, as the testing confirmed. He explained that he initially denied using drugs to the social workers and said: “who would” admit drug use. He admitted that he has tested positive from fall of 2019 until after protective care and up to August 2022 at least. He denies saying in October 2019 that he could stop drugs by himself [Page 11, para 23 of Trial Record]. [ 144 ] L.M. does not agree that he had to leave Ridgewood because he was not receiving services.

Rather, he explained that one of the patients had AIDS and was “bleeding everywhere” and he left because they did not clean it up. [paragraph 50, Pages 14-15 of Trial Record]. He also denies telling Ms. Morehouse on May 5, 2022, that he did not see the point in attending Ridgewood now. [Page 128, para 13(

a) of Trial Record]. He further indicated that he cannot stay sober if he continues to live where he is now. [ 145 ] L.M. has spent time in jail because of various offenses. He has been found guilty of various offences including a high-speed chase, numerous “altercations”, a break and enter offense, issuing a false report to the police, fraud, stolen property in addition to a conviction for sexual assault pursuant to s. 271(1) of the Criminal Code and failure to register as a sex offender. All of those offenses were committed prior to the children being taken into protective care.

However, L.M. received a two-year prohibition to operate a motor vehicle as of June 1, 2021 and was charged again on April 4, 2022.

[ 146 ] The relationship between R.M. and her mother has not always been good. R.M.’s mother testified that they did not speak for about one- and one-half years due to her leaving her father. She became involved again in the children’s lives in March 2020. She testified visiting the family “a lot” since then and that R.M. and L.M. were good parents. R.M.’s mother now works in home care and expects to complete the personal support worker course in November 2022. [ 147 ] R.M.’s mother testified that B. has a lot of issues but is a “good kid”. In her view, B. loves his mom and has a close bond with her.

She described T. as a “hugger” and agreed that she has a speech problem. S. however “stays away and plays by herself”, despite running over to hug her grandmother as well. On a “good day”, the kids love L.M. She has never seen L.M. high. She is prepared to supervise visits and make sure that drug tests are performed. [ 148 ] R.M.’s mother disputed Ms. Morehouse’s testimony that she only saw her with the children a handful of times in one- and one-half years. She admitted on cross-examination that she does not want L.M. to be high around the children.

ISSUES [ 149 ] The Court must first decide if it is in the best interests of the children to grant a Guardianship Order pursuant to s. 56(1) of the Act . The Court must then decide whether access should be granted to the Respondents in the event the Guardianship Order is granted. LEGISLATIVE FRAMEWORK [ 150 ] Subsection 56(1) of the Family Services Act , provides as follows: 56(1) The court may make a guardianship order transfer

[…]