2020 QCCQ 13600, 2020 QCCQ 13600

Protection de la jeunesse — 209363 2020 QCCQ 13600 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 640-41-002340-195 DATE: May 22, 2020 (written judgment rendered on September 9, 2020) ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X , born on [...], 2018 [SOCIAL WORKER 1], Youth Protection worker, duly authorized by the Director of Youth Protection A, working in [...] Applicant and B, residing and domiciled at [...] Mother and C, residing and domiciled at [...] Father ______________________________________________________________________ JUDGMENT (Section 38 of the Youth Protection Act ) ______________________________________________________________________ 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 ] The Director of Youth Protection (DYP) asks the Court to declare that the security and development of the child X, born on [...], 2018, are endangered under paragraphs (b) (1) iii, (b) (2), and (e) (2) [1] of

section 38 of the Youth Protection Act . [ 2 ] At the beginning of the hearing, the DYP did ask that the child be entrusted to a foster family for a period of one year with a possible reintegration with the parents if the situation allows it. In April 2020, at the last day of the hearing, the DYP informed the Court that the reintegration at the parents’ place was done because of the pandemic and everything went well. Doing so, the DYP asked the Court to entrust the child to the mother with aid counselling and assistance. [ 3 ] X has two brothers, Y (3 years old) and Z (13 years old).

The Court is also seized with their situation. Position of the Parties [ 4 ] The mother is present and represented by Me Tommasel and Me Laoun. She recognizes that the security and development of X are endangered under (b) (1) iii and (b) (2). She denied the other alleged grounds and contested the placement of her child. [ 5 ] The father is present and represented by Me Migué and Me Neptune. He denied that the security and development of his child were endangered, and if there is endangerment, he asks that the child be entrusted under the parent’s care. [ 6 ] X is present and represented by Me Villemur.

On her behalf and after hearing the evidence, Me Villemur submits to the Court that her security and development should be declared endangered for the alleged grounds. She also invites the Court to grant the recommended measures (placement at the mother’s place). History of the Situation [ 7 ] The situation of the B family is known from the DYP for a few years. Indeed, the older sister, A is followed by the DYP services. She was placed to a foster family because of the mother’s alcohol and drugs consumption, and the parents’ violent conjugal relationship. Despite few revisions, the situation remained the same.

The mother was arrested twice and showed suicidal ideation each time. A is entrusted until majority to white people who live in the North. Doing so, she remains in contact with her culture. [ 8 ] On July 3, 2019 , the Court was seized with an application for provisional measures.

The Court entrusted X and her brother to a foster family and ordered that the health-care services are provided to both children. [ 9 ] On July 22, 2019 , the Court maintain the previous provisional measures. [ 10 ] On September 6, 2019 , the Court was supposed to be seized with the application for protection, but because of a lack of time

and the absence of Court workers to enable the communication between Z and his lawyer, the Court postponed the hearing and maintained the previous provisional measures. Facts [ 11 ] The alcohol consumption issues of the parents are well known. The father works 12 hours a day and according to the worker, he would not be implicated in his children’s lives. [ 12 ] On May 8, 2019, the situation of X was reported to the DYP because of the lack of medical care provided by the mother. X suffered from an abscess on her eyelid.

The mother was informed that X was at risk to develop meningitis if her abscess was not properly cared. The day after the abscess was bigger than two cherries. [ 13 ] Ten days later, as X had fever and the mother was scared that she could have been in contact with someone infected by tuberculosis, she brought her at the hospital. The doctor diagnosed pneumonia and concluded that the mother did not give her the antibiotics she had for her eyes because it would have prevented the pneumonia. [ 14 ] On June 4, X was discharged from the hospital and was prescribed with two different antibiotics.

Four days later she was 40.2°C of temperature. On June 12, she was hospitalized and despite the medication she received, the situation did not get better so, she was medevaced to Town A. On June 17, she was still in Town A. She was getting better, but she had influenza which could be dangerous at her age, so she remained hospitalized. [ 15 ] On June 19, 2019, the DYP invites the extended family members for a family council, but only the parents came to this meeting. The DYP worker made another invitation to the extended family still without success.

The objective was to prepare the reintegration and to ensure that the care would be provided properly. [ 16 ] On June 20, 2019, the mother while intoxicated, dropped the two youngest children without appropriate clothes at her sister’s house. Not long after, the mother, still intoxicated and fighting with someone, was arrested and detained. The day after, the DYP took an immediate protective measure and entrusted X and Y to a foster family (aunt E). [ 17 ] Still on June 20, 2019, it was noted that X had a lot of white spots in her mouth.

She was brought to the hospital, and she received an intravenous for herpes treatment. She was dehydrated and had difficulty to drink. According to the mother, she has those symptoms since she came back from Town A, but she did not consult the doctor for that before. [ 18 ] On June 24, 2019, X was entrusted to her new foster family, the one of Ms. D.

Unfortunately, on June 30, the DYP was informed that the foster family gave the child back to the mother and both were unreachable. [ 19 ] On July 2, X was with her aunt D, but one week later, the aunt is tired with the multiple spot check made by the DYP worker and thought about giving up. Doing so, on July 10, X was entrusted to the specialized foster family in Town B. [ 20 ] On July 27, X had again difficulty to breathe. A cardiac massage was done before she was medevaced to Town A. The nurse gave the mother clear instructions which were not followed.

The mother came with her to Town A, and X stayed hospitalized until July 29. [ 21 ] On August 3, 6 and 7, X had convulsions. [ 22 ] According to the information provided to the DYP worker, it is mostly the mother who takes care of the children, but she does not seem to understand the importance to give the medical care according to the professionals’ recommendations nor the possible consequences on the health of her children.

Reports in similar matter were received regarding Y by the past. [ 23 ] The father was involved when the mother was detained, but since she is back, he does not participate anymore to the care. [ 24 ] The DYP worker noted that X could have worrisome behaviour described as follows in the report: “X was showing several signs of exhaustion as need to sleep for several hours, silent cries, lethargic state, reaching for affection from an adult and always asking to drink. The child has no boundaries with strangers, and she needs constant attention.

This behaviour is questioning her attachment link [2] .” Also the DYP worker was told that she could eat endlessly, even to the point to vomit. [ 25 ] The mother testified not having alcohol issues. She sometimes consumes and admits being drunk sometimes, and she admits that she was intoxicated in the presence of the children in June 2019. But, according to her, she can stop when she wants. She says being sober since fall 2019, because she is pregnant. [ 26 ] The mother denies the facts that she neglected the medical care that X needed.

She considered having taken all the necessary steps and that she always followed the medical recommendations. [ 27 ] X and Y were both entrusted to the specialized foster family in Town C, because no extended family members raised their hand to foster them. They were doing well there. They had a stable routine and received affection from the foster parents. [ 28 ] X received regular medical follow-up, but she is generally doing well. [ 29 ] Regarding the contacts with the parents, the plan was to implement those contacts progressively and to work with the parents about the specific needs of the children.

The mother responded well to the counsels, while the father appeared not really interested in the discussion. After one month, the visits were supposed to take place once a week at the DYP office to supervise the contacts and according to the evolution, the visits would have taken place at the foster home and finally at the parent’s place without supervision. [ 30 ] Unfortunately, at the beginning, the parents did not take advantage of the opportunity they had to see their children.

As the children were sad when the parents did not come, the DYP worker decided not to announce the visit to the children to avoid a deception.

The DYP worker recognizes that the mother worked, at that time, at [Company A]. Doing so, it was more difficult for her to exercise all the contacts. [ 31 ] Despite the non-exercise of all the contacts, the mother, when present, was always open to discuss with the DYP worker and was always positive about the counsels. [ 32 ] The hearing continued on May 21, 2020, and at that date, Ms. [social worker 1] explained that X and Y were entrusted back to their mother for a few reasons.

First, the situation of Z occupied the Court for a few days, and as there was a common hearing with the two youngest, the hearing was postponed a few times. During that time, the situation of endangerment for sure remains present, but the mother improved a lot. She took steps, she collaborated very well, she is open and honest with the DYP and she applies the recommended measures. She was also able to recognize that her situation, in spring 2019, did put her children at risk. Moreover, the pandemic of Covid-19 reduced the possibility for the parents to have contacts with their children.

As it was impossible to know how the pandemic could evolve, the risk for the children to have no contact with the parents created a prejudice. Finally, the mother showed that she understands the importance of taking care of her children’s health and nothing wrong was noted during the multiple unannounced visits. The mother does not work at Raglan Mines and doing so, she is totally available. [ 33 ] The DYP would like to maintain the children with the mother with a close follow-up to be sure that the improvements are well rooted. [ 34 ] The father said being happy to see that the children are back with the mother.

Despite the numerous attempts from the DYP worker to obtain the collaboration from the father, he remains absent of the clinical follow-up. He expresses the desire to see his children and to teach them the traditional activities. Analysis Endangerment [ 35 ] The evidence is contradictory regarding the neglect in terms of health care in the situation of X. The mother asserts that she took all the appropriate measures to ensure her daughter’s well-being.

The evidence provided by the DYP is totally different and the Court retains the version of the worker who was able to give all the details about the different worrisome situations. It is obvious that the mother was not present all the time, and was not fully aware of her daughter’s situation. [ 36 ] Even if the Court retains the version of the DYP, the Court takes the opportunity of this situation to make a general comment. As very frequently, the evidence regarding the medical care is based on the DYP worker’s testimony and medical files are rarely filed. The doctor or the nurse is never present to testify.

Because of the non-respect of the rule of the best evidence, the hearing regarding this aspect took a few hours and prevented the Court from finishing the hearing. Moreover, as this evidence was based mostly on hearsay it was extremely risky that the Court would conclude to the absence of evidence. In this situation, no objection was made which allowed the DYP to make such evidence. If an objection would have been made and granted by the Court, the evidence regarding this ground of endangerment would have not been possible.

But that does not mean that the child would not be in need of protection on this aspect. [ 37 ] Regarding the neglect in terms of supervision, the mother recognizes it and the evidence provided sustains a declaration of endangerment on this aspect. Indeed, the mother admits that she was intoxicated a few times in the presence of her children and that she left them alone in front of her sister’s house instead of asking help. [ 38 ] The DYP alleged that Y and X are at risk to be the victim of physical abuse.

This assertion comes from the fact that the DYP alleged that their older brother, Z, was the victim of physical abuse from the part of the father. In the situation of Z, the Court does not conclude that Z was the victim of physical abuse, as no evidence was provided in that sense. Because it would have been the reason for the Court to conclude that the two youngest children could be at risk of physical abuse, the Court cannot conclude to the existence of this risk. Applicable Measures [ 39 ] The measures are not contested, and those measures are in the best interest of the children.

The mother was able to realize the seriousness of the situation and to collaborate with the DYP. The situation is getting much better to the point that the mother was able to resume the care of her children. [ 40 ] The best place for the children is close to their mother. For sure the presence of the DYP remains necessary. As the collaboration between the medical staff and the DYP is good, the DYP worker is always informed about the medical appointments and can verify if the mother is present or not.

Doing so, the DYP will be able to intervene quickly if needed. [ 41 ] The father was sensitized to the importance for him to be available for his children. The children miss him and they deserve to spent time with him. He has a lot to teach them and the mother also has the right to be tired and to have some respite. FOR THOSE REASONS, THE COURT: [ 42 ] GRANTS the application; [ 43 ] DECLARES that the security and development of the child X, born on [...], 2018, are endangered under paragraph (b) (1) ii [3] , (b) (1) iii and (b) (2) of

section 38 of the Youth Protection Act ; [ 44 ] ENTRUSTS X to her mother; [ 45 ] ORDERS that the modalities, the frequency and the degree of supervision of the contacts between the child and the father be determined by the Director of Youth Protection;

[ 46 ] ORDERS that the child receive all health care services required by her situation; [ 47 ] ORDERS that the parents take an active

part in the application of any of the measures ordered by the Court; [ 48 ] ORDERS that a person working for an institution or body, provide aid, counselling or assistance to the child and the family; [ 49 ] ORDERS that the parents report in person, at regular intervals, to the Director of Youth Protection to inform him of the current situation; [ 50 ] ORDERS that the parents remain sober and without any violent behaviours in presence of the child; [ 51 ] STRONGLY RECOMMENDS that the parents seek help through the Social Services concerning their consumption issues; [ 52 ] AUTHORIZES the Director of Youth Protection to access the information regarding the parents’ presence at the appointments with the professionals and their level of involvement in the services provided; [ 53 ] ENTRUSTS the situation of the child X , to the Director of Youth Protection A, who shall then see that the measures are carried out; [ 54 ] THE WHOLE until May 31, 2021. __________________________________ PEGGY WAROLIN , J.C.Q.

Me Robert-André Adam and Me Adèle Cyr, attorneys for the Director of Youth Protection Me Éliane Villemur, attorney for the child Me Angèle Tommasel and Me Ève Laoun, attorneys for the mother Me Laurence Migué et Me Cassandra Neptune, attorneys for the father Dates of hearing: February 6 and 7, April 17, May 21 and 22, 2020