2022 NLCA 34, 2022 NLCA 34

K.K. (appellant) v. Manager of Child and Youth Services, ZoneD (respondent) (22/08) Indexed As: K.K. v. Newfoundland and Labrador (Child and Youth Services) 2022 NLCA 34 7 C.A.N.L.R. 665 Court of Appeal of Newfoundland and Labrador Welsh, Hoegg and Goodridge JJ.A. May 31, 2022 Restriction on Publication: There is a Publication Ban on the names and any other identifying information of the children referred toherein, as well as the names of their biological parents, relatives and foster families pursuant to

section 55 of the Children, Youth andFamilies Act.

Summary: Three of K.K.’s children were found to be in need of protective intervention. Following an application by the manager of Child andYouth Services, Zone D, the children were placed in the continuous custody of the manager. K.K. appealed that decision arguing that thejudge erred in granting the order by failing to give appropriate weight to the death of the children’s father and its impact on theassessment of the manager’s application. Held: Appeal dismissed. Welsh J.A. (Hoegg and Goodridge JJ.A. concurring): Care should be taken when relying on case law based on a repealed statute.

In thedecision in Re: J.J., preservation of the family was the focus of the statement relied upon by K.K. The focus in the current legislation isthe safety, well-being and best interests of the child (paragraphs 11-14). There is no special burden of proof on the manager; the civil burden of proof applies (paragraphs 15-16). The trial judge addressed issues of domestic violence, and took account of the fact that the father was no longer present in the home(paragraphs 17-19).

The judge made findings of fact regarding K.K.’s substance abuse and her parenting skills, including her decision tomove to Stephenville, which negatively impacted her visitation with the children (paragraphs 15-22). The judge found, on the evidence,that an additional temporary custody order would not be in the best interests of the children (paragraphs 23-25). Cases cited: Director of Child Welfare (Nfld.) v. S.J. (Re: J.J.) (1993), (NL SC), 113 Nfld. & P.E.I.R. 120 (Nfld. U.F.C.) S.D. v.

Newfoundland and Labrador (Child, Youth and Family Services), 2013 NLCA 29 Statutes considered: Children, Youth and Families Act, SNL 2018, c. C-12.3, sections 10, 32, 8, 9

Counsel: Catherine E. Boyde, for the appellant; Krista M. Atkins, for the respondent. The appeal was heard on May 16, 2022 before Welsh, Hoegg and Goodridge JJ.A. The following judgment was filed on May 31, 2022 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] K.K. is the mother of three young children who were found to be in need of protective intervention. The children were placed in the continuous custody of the manager of Child and Youth Services, Zone D, following an application by the manager. K.K. appeals that decision.

BACKGROUND [ 2 ] The oldest of the three children, now four years of age, has been in the care of the manager for all except about five months before her first birthday. The two younger children, now one and three years of age, have been in the care of the manager since birth. The three and four year old children are in the same foster home and have regular visits with the youngest child.

K.K. has five other children who were taken into care but were subsequently returned to the care of their father, who is not the father of the three children who are the subject of this appeal. [ 3 ] In September 2021, the manager applied for a continuous custody order with respect to the three children. While K.K. and the father conceded that the children were in need of protective intervention, they sought an order granting temporary custody to the manager, with a view to eventual reunification with the parents. [ 4 ] On October 9, 2021, the father died suddenly.

The judge had not yet released her decision on the manager’s application. Accordingly, on November 8, 2021, the matter was recalled to permit K.K. to testify regarding the impact the father’s death may have on the assessment of the manager’s application. [ 5 ] On November 12, 2021, after considering the evidence, in a comprehensive oral decision the judge granted a continuous custody order for the three children. The order provides: I Do Declare that [the three children] are children in need of protective intervention pursuant to paragraph 10(1) (a), (c), (

l) and (

m) of the Children, Youth and Families Act , And I Do Order that [the three children] be placed in the continuous custody of the Manager of Child and Youth Services, Zone D, pursuant to paragraph 32(2)(

d) of the Act , And I Do Further Order that the following conditions shall apply during the currency of this Order pursuant to section 32(6)(

a) of the Act: 1) That [the mother] shall have access with [the three children], hereinafter “the children” only if it is determined by the Manager to be in the children’s best interests.

Such access shall be at times, places, and under such circumstances as determined by the Manager to be in the children’s best interests. 2) That the children shall have regular and frequent access with each other at least weekly. 3) That the Manager shall employ all efforts to foster the cultural connection and identity of the children and shall remain in contact with the Inuvialuit Regional Corporation (“IRC”) and follow the advice of the IRC when at all possible. [ 6 ] The manager’s plan “is for the three children to be profiled for adoption as a sibling group” (transcript, at page 30).

Possible adoption with family or other persons significant to the children will be explored. The manager will “continue to support the children’s cultural connections and identity”, and will “maintain contact with the IRC [Inuvialuit Regional Corporation] to assist with the best permanency plan for the children” (transcript, at page 31).

ISSUES [ 7 ] At issue is whether the applications judge erred by granting the order placing the children in the continuous custody of the manager, and particularly, by failing to give appropriate weight to the death of the father and its impact on the assessment of the manager’s application.

ANALYSIS The Legislation [ 8 ] The definition of a child in need of protective intervention is set out in

section 10 of the Children, Youth and Families Act , SNL 2018, c. C-12.3 , which provides, in relevant parts:

(1) A child is in need of protective intervention where the child (

a) is being, or is at risk of being, physically harmed by the action or lack of appropriate action by the child’s parent; ... (

c) is being or is at risk of being, emotionally harmed by the parent’s conduct and there are reasonable grounds to believe that the emotional harm suffered by the child, or that may be suffered by the child, results from the actions, failure to act or pattern of neglect on the part of the child’s parent; ... (

l) is living in a situation where there is violence or is living in a situation where there is a risk of violence; (

m) is living with a parent whose actions show a propensity to violence or who has allegedly killed or seriously injured another person; ... ...

(3) For the purposes of paragraph (1)(c), parental conduct or living situations that may lead to emotional harm or risk of emotional harm to the child may include ... (

g) living in a situation where a parent is an abuser of alcohol or drugs; or (

h) living in a situation where there is violence. [ 9 ]

Section 32 of the Act provides authority for a determination that a child is in need of protective intervention, and an appropriate order:

(2) Where a judge finds that a child is in need of protective intervention, the judge shall so declare and order that ... (

d) the child be placed in the continuous custody of a manager; or ... ...

(6) Where a judge makes an order for continuous custody under paragraph (2)(d), (

a) the judge may attach reasonable conditions to that order; and (

b) the manager has custody of the child and has all the rights and responsibilities of a parent for the child’s care and future planning. [ 10 ] General principles to be applied in making a determination under

section 32 are set out in sections 8 and 9 of the Act : 8. The purpose of this Act is to promote the safety and well-being of children and youth who are in need of protective intervention by offering, where available and appropriate, services that are designed to maintain, support and preserve the family where it is in the best interests of children and youth. 9.

(1) This Act shall be interpreted and administered in accordance with the principle that the overriding and paramount consideration in a decision made under this Act shall be the best interests of the child or youth.

(2) In determining a child’s ... best interests, all relevant factors shall be considered, including (

a) the child’s ... safety, health and well-being; (

b) the child’s ... physical, emotional and developmental needs; ... (

f) the importance of preserving an Indigenous child’s ... unique cultural identity; (

g) the importance of stability and permanency in the context of the child’s ... care;

(

h) the importance of family as the preferred environment for the care and upbringing of a child ... .

(3) Where there is a conflict between paragraphs (2)(

a) and (h), paragraph (2)(

a) shall prevail. Comment on Case Law [11] Counsel for the manager emphasized the importance of recognizing that the Children, Youth and Families Act, assented to onMay 31, 2018, replaces previous legislation which was repealed. This is relevant insofar as submissions made by a party rely on caselaw that is based on a repealed statute. While principles discussed under previous legislation may be of assistance, differences inapproach following the enactment of the new statute must be taken into account. [12] In this case, relying on the decision in Director of Child Welfare (Nfld.) v.

S.J., (Re: J.J.) (1993), (NL SC),113 Nfld. & P.E.I.R. 120 (Nfld. U.F.C.), counsel for K.K. submitted that a continuous custody order should “only be made in situationswhere there is no realistic alternative”. In support of this position, counsel quoted from Re: J.J.: [8] Generally speaking, responsibility in our society for the care and upbringing of children is left to the family. It is not stating it toostrongly to say that it is still regarded as a fundamental value of our society that the development and upbringing of children by theirparents should be fostered.

That being so, state interference with the parent-child relationship should be justified only in the exceptionalcase where the natural parenting relationship cannot be fulfilled and ... “the child’s living circumstances have been below the standardnormally tolerated in our local society”. One has to be careful not to authorize state intervention whenever it is perceived that the statecan do a better job than the parent. [13] The focus of this statement is preservation of the family.

This stands in contrast to the current legislation in which the focus isthe safety and well-being, and the best interests of the child. While

section 8 of the Act, which sets out the purpose of the legislation,refers to the provision of services designed to maintain, support and preserve the family, that applies where it is in the best interests of thechild. [14]

Section 9 of the Act goes on to emphasize that it is the best interests of the child that is the overriding and paramountconsideration in assessing whether a child is in need of protective intervention, and the appropriate order to make. Applying sections9(2)(

h) and 9(3) of the Act, preservation of the family may be a relevant factor in the analysis depending on the best interests of thechild, which must be assessed on the basis of the whole of the circumstances. This is a different focus from what is expressed in the Re:J.J. decision, quoted above. [15] In addition, insofar as counsel for K.K. submits that the manager must satisfy a heavy onus or high or exceptional burden of proofbefore a continuous custody order may be made, I reiterate the principle that “in civil cases there is only one standard of proof and that isproof on a balance of probabilities” (S.D. v.

Newfoundland and Labrador (Child, Youth and Family Services), 2013 NLCA 29, atparagraph 49). To the extent that the decision in Re: J.J. suggests a different or higher standard of proof in the case of an order forcontinuous custody, that decision has been overruled. [16] In this case, I am satisfied that the judge did not err in her approach to application of the current legislation and law.

Application of the Law [17] In her comprehensive oral decision, the applications judge addressed issues of domestic violence, substance abuse, parentingconcerns, and choices made by K.K. that affected her relationship with the children. [18] Regarding domestic violence, the judge, having reviewed the evidence, made several findings of fact. She accepted that violencewas not limited to K.K.’s relationship with the children’s father. Violence was also a component of her earlier marriage. In addition,K.K. testified that she had, at times, been the aggressor.

Counselling had not proven to be effective in achieving improvement. K.K. wasnot successful in removing herself from domestic violence involving the children’s father. For example (transcript, at page 16): ... The mother stated that she would not be welcoming the father back into her home. However, three days later she recanted andstated her new plan for relocation to Stephenville with the father. In May of 2020 the mother contacted the RNC’s Intimate Violence Unit wherein she requested supports because she was in avolatile relationship. She, however, also indicated her desire to continue that relationship. ...

One day she expressed concern for thefather’s medication misuse, but the next day was prepared to have him back in her home. [19] Having reviewed the relevant evidence, and having taken into account that the children’s father was no longer present, the judgeconcluded (transcript, at pages 41 and 42): The mother has demonstrated a pattern of engaging in relationships that are violent and a willingness to remain in thoserelationships despite the risks to her personal safety and their negative impact on her ability and opportunity to parent.

There is noevidence to persuade me that this pattern has ended with the death of the father. I have significant concerns about with whom the motherwill choose to partner in the future. Even if the death of the father eradicated all of my concerns regarding domestic violence as theypertain to the mother, it does little to address the other areas of concern which I have discussed. [20] Regarding substance abuse, the judge accepted evidence that K.K. abused both alcohol and drugs, including codeine, Percocetand prescribed medications.

With respect to alcohol, the judge referenced K.K.’s evidence that she “refused detox and rehabilitationservices though she acknowledged that alcohol cannot be part of her life because she loses control when she drinks” (transcript, at page20). [21] The judge also had concerns regarding K.K.’s parenting skills. She missed medical appointments intended to address thechildren’s health as well as behaviour issues relative to the oldest child. Having attended only 149 of a possible 215 visits, K.K.’s access

time with the children “was decreased over time due to the number of missed visits” (transcript, at page 26). Further, the judge explained (transcript, at page 26): ... Prior to relocation to Stephenville she was afforded two supervised visits per week. There were times when the children were brought to visits, and the parents did not show. [The social worker] testified that this negatively impacted the oldest child. ...

At times the parents went lengthy periods without making contact with the children. [ 22 ] An additional issue of concern to the judge was K.K.’s relocation to Stephenville, which, because of the geographic distance, negatively impacted visitation with the children.

Between July and September 2021, K.K. had only one visit, and the judge noted that she “did not hear of any further visits when the mother testified on November 8, 2021” (transcript, at pages 26 to 27). [ 23 ] Having addressed the above concerns, the judge discussed K.K.’s testimony that (transcript, at page 32): ... if she is given another chance, she would have to change pretty much everything about her life.

She does not think there is anything that could be asked of her that she would not be able to do. ... [ 24 ] The judge, who, in fact, dealt with these parties for purposes of temporary custody and made the 2019 order, was unable to accept this. Rather, she reiterated that K.K. has made no progress since the 2019 order for temporary custody of the two older children. In her words, “nothing has changed” despite K.K. having been told at the time of the 2019 order that progress was essential, and having been given “a detailed order as to what I expected her to do” (transcript, at page 37).

The judge stated that she had no basis on which to expect a different result if another temporary order was issued now. Further, she was satisfied that the death of the children’s father would not alter that conclusion because the “change in circumstances [resulting from the father’s death] was not due to any positive growth or insight on the part of the mother” (transcript, at page 45). [ 25 ] In light of the above considerations, the judge rejected the utility of a temporary custody order.

She explained (transcript, at pages 42 and 43): [Counsel for K.K.] submitted that the ability to grant a second temporary custody order under the legislation is for the very purpose to afford parents more time. Very true but not more time for the sake of more time.

More time to continue progress made, more time to complete work started but not yet finished, more time to demonstrate ongoing ability to implement and apply lessons learned, not more time to simply get started. [Counsel] stated on November 8 th , 2021, that the mother is seeking a temporary custody order to get on her feet, adjust to her new life and work on parenting the children. Irrespective of the father’s death, these efforts should have started in June of 2019 [when the temporary orders were made for the two older children] if not before. Certainly the start date should not be today.

Given that the initial trial for this matter ... did not proceed, the mother was afforded an extra year to work cooperatively with the Manager to address the previously noted concerns. Not only did she not do so, she made choices which further negatively impacted the situation. I am not convinced on the evidence before me that the mother can do the work and make the necessary life changing adjustments required to move forward in the time that could be afforded her under temporary custody orders.

She cannot in any significant way mitigate the risks which have been present from at least March of 2018 when the oldest child came into care and which have impacted negatively on her ability and opportunity to parent. ... I cannot reasonably conclude that she will demonstrate sufficient progress to reduce the risks of harm present in her life so that the children may be returned to her care following the expiration of temporary custody orders. ... [ 26 ] There is no basis on which to determine that the judge erred in her findings of fact, or in the inferences she drew or conclusions she reached.

She applied the relevant principles of law in the context of all the evidence, including the fact that the children’s father was no longer present.

SUMMARY AND DISPOSITION [ 27 ] The judge did not err in granting the order placing the three children in the continuous custody of the manager. I would affirm the order, including the conditions added pursuant to section 32(6)(

a) of the Act . [ 28 ] Accordingly, I would dismiss the appeal. Appeal dismissed.