r v. A, 2016 QCCQ 17818

Protection de la jeunesse — 168732 2016 QCCQ 17818 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] TOWN OF [...] Youth Division No: 760-41-004715-143 DATE: July 14, 2016 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X Born: [...], 2014 Child ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION OF LE CENTRE JEUNESSE A Petitioner v.

A B Parents ______________________________________________________________________ JUDGMENT ______________________________________________________________________ WARNING: The Youth Protection Act forbids the publishing or broadcasting of information allowing for a child or the child’s parents to be identified.

Any person who contravenes this provision commits an offence and is liable to a fine (sections 11.2, 11.2.1 and 135 Y.P.A.). [ 1 ] Context [ 2 ] On August 3, 2015, the Court renders a judgment in the situation of X, born on [...], 2014, extending protective measures put in place in reason of a situation of serious risk of neglect and psychological ill-treatment.

More specifically, the Court orders that the child remains in foster care while benefitting from supervised contacts with his parents. [ 3 ] The Director of Youth Protection presents a motion for revision and extension of this decision, alleging that the maximum delays of placement are attained and that the Court must consider a judgment promoting the stability of X on a long term basis.

The Director therefore seeks an order entrusting him to his present foster family until his majority, while maintaining the supervision of his contacts with his mother and further prohibiting those with his father. [ 4 ] The parents, as well as the child’s attorney, recognize that the situation of endangerment is still active and that the Court must pursue the application of protective measures.

They further do not contest the attainment of the maximum delays of placement as provided by the Youth Protection Act. [ 5 ] They jointly contest the orientation sought by the Director, namely a permanency order, alleging that the evidence demonstrates that X can return to his mother’s care in a progressive manner. [ 6 ] The attorney for the child adds that the Court should consider that the Director has not furnished appropriate services, therefore justifying that the Court render a short term order in order to further verify the mother’s ability to rehabilitate her situation towards resuming her parental obligations. [ 7 ] The evidence [ 8 ] X is in foster care since September 2014, integrating his current foster family on October 22, 2015.

This family is available to receive X on a long-term basis. [ 9 ] X is developing positively in his foster environment. He responds well to the routine in place and shows attachment to his foster parents. [ 10 ] Initially, X benefits from weekly visits with his mother. Since May 2015, these visits occur at the offices of the Director of Youth Protection in relation to the mother allowing contacts with the father despite the supervision in place:

[15] The mother maintains regular visits with her son despite her personal difficulties, testifying to her ongoing objectives to remain a significant part of her son’s life. Notwithstanding, the evidence demonstrates that she has consistently made choices that have put her son in peril and leave him witness to conflict, which makes it now necessary to structure their contacts in order to ensure that X develop in a strife-free environment. (Judgment August 3, 2015) [ 11 ] The mother is generally available for the visitation periods, although absences occur regularly because of transportation or financial issues.

At one point, the visits are reduced from 3 to 2 hours a week because of the train schedules and the mother’s insistence to maintain the visits in the morning. In the last months, the mother fully respects the visitation schedule. [ 12 ] The visits are generally positive. The mother shows adequate parental skills and there is an affectionate bond with X. Over time though, X is showing more attachment to his foster family at the occasion of the contacts. [ 13 ] X has reactions consequent to the visits with his mother. The foster mother testifies that he can have nightmares and show increased attachment.

The night terrors decrease over time, but the proximity behaviour intensifies. [ 14 ] The Director considers that the supervision of the visitation is still necessary as the mother hasn’t shown constancy nor respected the requirements for the contacts (bringing diapers and juice). [ 15 ] The father’s last visit through protective services occurs in September 2014. Notwithstanding, the father has repeated contacts with X until spring 2015, usually through the mother and without the Director’s knowledge.

The mother testifies to allowing contacts as she wanted X to have a bond with his father. [ 16 ] The parents cease their relationship in the summer of 2015. [ 17 ] The Director tries to communicate with the father on numerous occasions, without success. [ 18 ] The father has a substantial criminal record. In September 2015, he faces new criminal charges of assault and is subsequently detained. He is prohibited from contacting the mother since spring 2015. [ 19 ] In October 2015, the father finally contacts the caseworker and requests to see his son.

He is then at Toxico-Gîte , following a Court ordered substance abuse program. The caseworker asks to meet with him in order to discuss his personal situation and evaluate the viability of his involvement. [ 20 ] The father doesn’t follow through with this request. He quits the program in December without leave, then putting himself in breach of his conditions. [ 21 ] Also as of December, the mother integrates a supervised apartment with Elizabeth House. She follows the programs offered and commences to receive welfare benefits.

She is since able to structure her budget and even put some money aside for X in view of his eventual return. [ 22 ] On December 27, the father gains admittance to the mother’s apartment through a mutual friend. An altercation ensues when the mother asks him to leave. He assaults her and she calls the police, pressing charges which are ongoing.

The Director produces her police declaration, which details the event and further confirms that the mother did not incite the contact. [ 23 ] In January 2016, Elizabeth house expulses the mother after finding evidence of a party, a second event of this nature. [ 24 ] The mother then takes steps to integrate low-income supervised housing with services, aiming at helping youth integrate society (Bureau de consultation jeunesse in Town

A) She is still able to receive services from Elizabeth House as well as through the program which now supports her with a worker. [ 25 ] The caseworker is aware of the mother’s situation and authorized to make pertinent verifications as to her progress. He testifies to choosing not to do so, preferring to focus his interventions on the visitation. [ 26 ] The mother testifies to the effect that she is now focused on her goals and realizes that she cannot go forth on her own. She welcomes services and is actively pursuing her involvement through Carrefour Jeunesse.

She realizes that her relationship with the father was toxic. [ 27 ] She states convincingly that ‘ ’everything needs to be about X now’’ . [ 28 ] The mother details her immediate plans in relation to her son: • She has taken steps to transfer to a larger apartment should X return to her care; • She has taken steps to get information from various daycare services; • She is undertaking steps to find gainful employment; • She is registered to pursue her studies as of September 2016; • She has no plans to resume a relationship with X’s father, although she wishes that he address his anger issues and be a part of their son’s life. [ 29 ] The Director decides to seek X’s long-term placement in March 2016, considering his positive integration in his foster family.

In view of his reactions after the contacts with his mother and in order to allow him to fully invest in his substitute milieu, the Director seeks that the mother’s contacts be reduced to a monthly basis.

[ 30 ] In April, the Director learns of the father’s incarceration. There is a renewal of attempts to contact him, again to no avail. A letter is sent to his detention center requesting that he undertake some sort of interaction. [ 31 ] The Court also benefits from the father’s testimony. [ 32 ] Actually, the father is in jail with an estimated release date in late October. [ 33 ] He confirms no longer having a relationship with the mother. He puts forth his plans upon his release, namely of working in landscaping and snow removal in the Town B area.

He could use tools to be able to educate a child, but doesn’t require other therapies or services. [ 34 ] The father admits having had ‘’tons’’ of follow-ups in regards to his anger management issues since he was an adolescent. He states getting better. [ 35 ] Although he has not been a consistent part of his son’s life, he considers that he has a bond with him and that contacts should resume on a supervised basis.

Should he have been present, he considers that there would not have been a need for the involvement of social services. [ 36 ] The father asks that X visit him at his detention center. [ 37 ] Analysis and decision [ 38 ] The parties offer a joint position as to the continued situation of endangerment, which the Court endorses after evaluating the evidence. They also recognize that the maximum delays of placement provided by the Youth Protection Act have expired for X, justifying the evaluation process provided by

article 91.1, which reads as follows: Art. 91.1 When determining the duration of foster care, the tribunal must take into account the duration of any foster care measure applied to the same situation in an agreement on voluntary measures referred to in subparagraph j of the first paragraph of

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

However, the tribunal may disregard the periods specified in the first paragraph if it is expected that the child will be returned to his family in the short term, if the interest of the child requires it or for serious reasons, such as failure to provide the services agreed upon. (our underlining) [ 39 ] This process is clear.

Upon the expiration of the maximum delays of placement, the Court is bound to render a permanency order unless the evidence demonstrates the probability of one of the reasons permitting to disregard such. [ 40 ] The parents, as well as the attorney for the child, submit three reasons: • The expectation of a return of the child to his mother; • The failure to provide the services agreed upon; • The child’s best interest; [ 41 ] After evaluating the evidence, the Court endorses this position. [ 42 ] When determining the rehabilitation of a family environment, it is pertinent to review its evolution since the declaration of endangerment, which also reflects the overall rehabilitative capacity for the future. [ 43 ] As for the mother, this evolution is arduous.

Starting as an underage mother with a complex background of abandonment and a dysfunctional family dynamic, she concurrently deals with an emotionally complex and violent relationship with X’s father. [ 44 ] Since X’s birth, the mother repeatedly makes questionable decisions. She suffers from an independent streak which further affects her ability to move forward and adequately parent her son.

In his initial months of life, X is repeatedly placed in foster care while the mother struggles with wanting her independence and respecting the obligations she faces. [ 45 ] Eventually, X is placed in foster care for an extended term. [ 46 ] Eventually, the Court orders the supervision of her contacts with X when she prioritizes her personal needs above those of her

son, namely by maintaining her conflictual relationship with the father and putting her son in his presence, despite the prohibitions in place. [ 47 ] Despite these setbacks, the mother perseveres and remains, notwithstanding the challenges and obstacles, a constant and positive presence in her son’s life. X and his mother share a significant and affectionate bond.

Concurrently, the mother has always shown a capacity to see as to her son’s basic needs. [ 48 ] Since the last judgment, the evidence also shows that the mother has made significant strides as her acquiring her autonomy. [ 49 ] In May 2015, the mother definitely ends her relationship with the father, although he remains a sporadic presence in her life. [ 50 ] Following the incident with the father in December 2015, the mother chooses to leave the realm of supervised apartments and finds a residential structure which promotes her autonomy.

She is presently living independently and receiving financial aid which permits her to respond to her personal needs, while concurrently remaining an active part of X’s life. [ 51 ] Since this time, she continues to move forward, despite the significant challenges before her.

All this, with little active support from the Director. [ 52 ] Yet the Court must consider that in the past, the mother shows cyclical periods of instability during which she has shown herself unable to juggle her needs and those of her son. [ 53 ] With this in mind, the Court refers to the mother’s testimony. [ 54 ] Having had the opportunity to hear mother testify on previous occasions, the Court retains a transition as to her perceptions as to the best interests of her son and her parental role. A transition from a mother to the much more involved role of a parent.

She convinces the Court of her investment and understanding of the importance of putting her son’s needs above her own; that her recent efforts to stabilize her situation have been in function of her son’s interests. She is further able to clearly elaborate a plan for her son’s return, his needs and the ways she will attend to these. [ 55 ] The Court recognizes that such X’s reintegration with his mother will present challenges. X is well integrated in his foster environment, which has obviously shown devotion to his care and well-being.

Yet, the rehabilitation of his parental milieu, although not perfect, is sufficient to conclude that X could receive a response to his needs. [ 56 ] On this issue, the Court deems pertinent to review the meaning of the objective repeated in the successive intervention plans put in place since the last order: L’enfant retournera dans sa famille dans les plus brefs délais . These words are not to be repeated by rote for the simple reason that they reflect the objective of the law, as stipulated by the case worker.

To the contrary, this principle is the one of the fundamental bedrocks of the Youth Protection Act and underlines a requirement to put forth measures to this end. The Director of Youth Protection assumes the mandate to actively promote this objective as being in the best interests of the child. [ 57 ] The necessity of revising the intervention plans at regular intervals is to review the evolution of the application of the measures in function of the child’s best interests and the objectives of the law and to make the appropriate adjustments. [ 58 ] The Court concludes that such was not the case here.

The intervention plans do not evolve in function of the mother’s strides to stabilize her personal situation. In fact, when the mother leaves Elizabeth House , there are little or no efforts made to verify her living arrangements, support structure or efforts to stabilize her situation.

In point of fact, the Director offers little in the way of accompaniment, the intervention focusing on the mother/son contacts. [ 59 ] The evidence further demonstrates that the supervision of the mother’s contacts could have, and should have, been revised and even lifted many months ago and this, considering the stated source of such requirement, namely X being put in contact with his father. [ 60 ] This relationship wanes and the incident in December relates not only a determination for the mother to distance herself from the father, but an ability to denounce his violent actions to the authorities.

The concurrent arrest and detention of the father should also have spurred a reflection as to the necessity to maintain the supervision of X’s contacts with his mother, which were otherwise positive. [ 61 ] The Director failing to revise its intervention at certain points despite substantial changes in the mother’s situation demonstrates a distancing from the objective of actively seeking the rehabilitation of the family environment towards the return of the child. [ 62 ] The Director’s position suffers also the decision to not actively seek verify whether the mother was in fact receiving services after she moves from the supervised apartments.

Although this obligation falls clearly within the purview of the Director’s obligations to ensure the work towards rehabilitation, this seeming lack of interest also permits the Court to question their active pursuance of the objectives still put forth in the intervention plans. [ 63 ] What is clear is that at a certain point, the Director turns its view towards a permanency plan for X and that the efforts towards a return in his family environment wane, leaving way to X becoming increasingly bound to his foster milieu. [ 64 ] This situation does not comply with the objective of the law, intervention plans in place nor the best interests of the child. [ 65 ] Therefore, after evaluating the evidence, the Court determines that X’s best interests are to resume and complete the path towards his reintegration with his mother. [ 66 ] As already stated, the Court retains no further tangible reasons to pursue the supervision of the contacts between X and his mother.

The reactions put forth at the occasion of the visits may stem from many sources and in fact, X continues to have an affectionate bond with his mother, a situation which is unchanged since the beginning of the intervention. It is more probable that X’s reactions result from transitioning between two significant places and struggling with the onus of such.

[ 67 ] The extension of visitation will be concurrent to a progressive plan for reintegration in the following months, with the Director offering support to the mother as to transportation and accessory needs. Requesting the parties’ submissions as to a concrete plan of reintegration, there is a consensus that the whole can proceed following mutual agreement.

The Court endorses such, remaining available should a concrete plan not intervene in a short delay. [ 68 ] Remains the issue of X’s contacts with his father. [ 69 ] The Court’s evaluation is to determine contacts which are beneficial for the child in view of maintaining bonds in place, as provided by the Youth Protection Act: Art. 91. (…) The tribunal may include several measures in the same order, provided those measures are consistent with each other and in the interest of the child.

It may thus authorize that personal relations between the child and the child’s parents, grandparents or another person be maintained, in the manner determined by the tribunal; it may also provide for more than one place where the child may be provided with foster care and state how long the child is to stay at each of those places. [ 70 ] Since his birth, X has only seen his father on a sporadic basis.

Contrary to the mother, the father has not assumed a significant role in his son’s life. [ 71 ] The father repeatedly makes questionable decisions which promote his self-interests and show a fundament lack of understanding of his parental role. He exhibits a marked disregard for court orders, preferring to not recognize his responsibility as to the situation of endangerment which ultimately leads to the intervention of social services and the placement of his son in foster care. [ 72 ] He has an extensive criminal record which remands him to custody for the larger part of X’s life.

Notwithstanding his affirmations to the contrary, the evidence shows that drug and alcohol abuse are an ongoing issue in his life. He has undertaken, unsuccessfully, three in-house substance abuse therapies, the most recent from January to March of this year. [ 73 ] His decision to not benefit from the services of the Youth Protection Director or to participate in the access rights provided, impact his affirmations of wishing to be an active part of his son’s life and to wanting to stabilize his lifestyle. [ 74 ] The father wishes to benefit from contacts with his son at his detention center.

Although a possibility in order to maintain an established relationship, such is not the case for X. His father is a virtual unknown in his life and the process of bonding is still to complete. [ 75 ] At this juncture, the father’s history of lack of involvement and marginal values are not concurrent with his being a positive part of his son’s life.

Although the plans he puts forth are certainly positive, the Court requires that he demonstrate a concrete ability to make different choices proving that he is able to be an invested and available parent. [ 76 ] Furthermore, the Court determining that X will transition to his mother, the measures must ensure the success of this endeavour, which cannot include adding the possible disarray brought forth by engaging contacts with his father which are not ensured to be constant nor beneficial. [ 77 ] Consequently, the Court considers that X’s best interests dictate that the order as to his contacts with his father confirms the factual status quo, namely the absence of such.

Considering the father’s projected plans, the Court puts in place a suspension of visitation and not a prohibition, allowing for a revision in the future, should X’s interests dictate such in reason of the father’s personal evolution. [ 78 ] The Court encourages the father to go forward with the myriad of plans he details during his testimony, as well as become an active part of the intervention, which will benefit not only his personal stability, but his son’s best interests. [ 79 ] FOR ALL THESE REASONS, THE COURT: [ 80 ] PARTIALLY GRANTS the motion; [ 81 ] DECLARES that the security and development of the child are still in danger; [ 82 ] MAINTAINS the child in foster care until October 15, 2016; [ 83 ] ORDERS his progressive reintegration in his maternal milieu as of now, following modalities to be determined by mutual agreement between the parties; [ 84 ] IN DEFAULT OF SUCH AN AGREEMENT : [ 85 ] TAKES ACT that there will be a return before the Court for determination of a calendar of reintegration; [ 86 ] PERMITS the parties to agree to complete integration in the maternal milieu before October 15, 2016, upon agreement; [ 87 ] SUSPENDS the father’s access rights to the child; [ 88 ] PROHIBITS the mother from permitting contacts between X and his father; [ 89 ] PROHIBITS the parents for being together in the presence or proximity of X;

[ 90 ] ORDERS that the parents participate in the measures ordered to put an end to the situation of endangerment; [ 91 ] ORDERS that the parents report periodically to Director of Youth Protection as to the measures they apply in their own regard or in the child's regard to put an end to the situation of endangerment; [ 92 ] WITHDRAWS the exercise of certain rights of parental authority from the father and AUTHORIZES the mother to sign alone the authorizations required for medical, school, recreational, extra-curricular, travel purposes, including the application for a passport; [ 93 ] ORDERS that a person working for an institution or a body provides aid, counselling and assistance to the child and his family for one year; [ 94 ] ENTRUSTS the situation of the child to the Director of Youth Protection A for the execution of the judgment. __________________________________ BÉATRICE CLÉMENT, J.C.Q.

Me Sarah Gaudry Staub Attorney for the Petitioner Me Malyka Jean Baptiste Attorney for the mother Me Michel Robert Attorney for the father Me Johanne Leduc Attorney for the child Dates of hearing: June 22, July 4, 5 and 14, 2016