2020 QCCQ 12754, 2020 QCCQ 12754

Protection de la jeunesse — 209322 2020 QCCQ 12754 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT […] TOWN […] Youth Division No: 635-41-000941-192 DATE: March 17, 2020 (written judgment rendered on May 19, 2020) ______________________________________________________________________ BY THE HONOURABLE PEGGY WAROLIN J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X , born on […], 2018 [SOCIAL WORKER 1] AND [SOCIAL WORKER 2], Youth Protection workers, duly authorized by the Director of Youth Protection of the A C.Y.P.C., working in Town A, district A, (Quebec) Applicants and A, residing and domiciled at […] in Town A, district A, (Quebec) […] Mother and B, residing and domiciled at […] in Town A, district A, (Quebec) […] 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 revise a decision rendered on April 17, 2019, regarding the child X, born on […], 2018. At that date, the Court declared that the security and development of the child were endangered [1] and entrusted him to his parents until March 31, 2020. [ 2 ] The DYP submits that the situation of the child had changed and justifies that he be entrusted to a foster family until March 31, 2021.

Position of the parties [ 3 ] The mother is present and represented by Me Boumeftah. She contests the suggested measures, she wants her child back at home and if the Court entrusts him to a foster family, she suggests that he be entrusted to his aunt C. [ 4 ] The father was dully served and two plane tickets were issued to give him the chance to be present, but he decided not to come at the Court. Considering the best interest of the child and the consent of the parties, the Court proceeds in his absence. [ 5 ] The child, who is now 16 months old, is represented by Me Sinnett.

The child’s lawyer submits to the Court that the measures suggested are in his best interest, but recommends that the suggested extended family member be evaluated. History of the Situation [ 6 ] On April 17, 2019, the Court was seized with an application for protection. The family was known from the DYP as the two oldest children are entrusted to their paternal grandparents and the two youngest are entrusted to a foster family in the region of Montreal until they reach their majority.

The DYP intervention was in regards with alcohol consumption and conjugal violence issues on the part of the parents. [ 7 ] X was born prematurely on […], 2018. The mother had consumed alcohol during her pregnancy. A baby alert was done, but it was noted at the hospital in Montreal that the parents were adequate. [ 8 ] No interventions were done until January 4, 2019, when the DYP was informed that the baby lose weight. X had to be medevaced to Town B with his mother. The mother brought X at the hospital considering he was vomiting.

According to the doctor, the weight loss could be due to many factors and more investigation was needed which cannot be done in Town B and the baby had to leave immediately for Montreal with the mother who took very good care of her child. [ 9 ] X had an emergency stomach surgery upon his arrival. The nurse confirmed that the parents were very adequate and very

concerned by their son’s situation. He had a medical issue that made him unable to ingest nutrients. After a recovery period, he reacted very well to being fed. [ 10 ] The father recognized having an alcohol consumption issue, but as he had financial difficulties, he was not able to buy alcohol and doing so, he was now sober. He was feeling better since he did not consume anymore. [ 11 ] Both parents confirm that their relation is much better since the birth of X. The mother works at the daycare, but she is actually on a maternity leave.

The father is not working. [ 12 ] The Court declared that the security and development of the child were endangered and maintained the child with his parents. The Court also ordered that the child receive health care and services required by his situation. Facts [ 13 ] On August 4, 2019 , X felt from the couch and had a head injury. The mother was supposed to bring him to the nursing for a follow-up, but she did not. [ 14 ] On August 23, 2019, the child was supposed to have an X-ray in Town B. The mother arrived three days after and smelt alcohol.

She was requested to stay at the nursing until the result was known, but she left the hospital to go to Town C instead of Town A without notifying the DYP. [ 15 ] Both parents lived most of the time in Town A, but the mother moved to Town C from the end of August to beginning of October 2019, and the father was detained two weeks in October. [ 16 ] The police had to intervene in the parents’ lives for episodes of conjugal violence and consumption in the presence of X. Also, in August, the mother was found in a shack with the child.

She was there for a few days as she ended up with the father and had no place to stay. She displayed suicidal ideation. [ 17 ] On November 25, 2019 , X started to have fever. The mother planned to go to the nursing the day after. The next day, the DYP made an unannounced visit, but the mother and the child was not there. On December 1, X was brought at the nursing as he still had fever. He vomited two days before, reduced his consumption of milk and did not urinate for 24 hours. He also had an eye bruise. The mother said that he felt another time from the couch.

He was medevaced to Town B and then to the Montreal Children's Hospital by Challenger. [ 18 ] On December 16, 2019, he was diagnosed with haemophilus influenza bacteremia and pneumonia with parapneumonic effusion s/p chest tubes. He was given an appointment for March 2, for X-ray and pneumology, for March 3, for immunology and for June 19, 2020, for a general consultation.

He was also supposed to be seen one week after the discharge. [ 19 ] The delay between the diagnosis (mid-December) and the appointment (beginning of March) is due to the fact that the foster family was not available earlier, to escort the child and no other person was found to attend the appointments with X. [ 20 ] X stayed hospitalized in Montreal for a period of one month. [ 21 ] On January 9, 2020 , the child was entrusted on immediate protective measure to Mr. D. X had to take antibiotics following his discharge and iron complement.

He got better and better. [ 22 ] On January 14, 2020 , the Court rendered a provisional measure and entrusted the child to a foster family. The Court recommended that the contacts between X and his parents take place once every two weeks and authorized the DYP to have access to the child’s medical file. [ 23 ] Since the placement, the DYP worker tries to organize between two and three contacts with the parents by week. The contacts are very important and the DYP worker would like to be able to increase it.

X appears happy with his parents and had developed strong bonds with them. [ 24 ] The DYP worker agrees to assess the aunt, Ms. E as a foster family, but until the hearing, the mother never suggested any names. The mother is presently living at this aunt’s place. The DYP worker does not have any information regarding a problematic alcohol consumption at this place. That being said, a complete evaluation should be done before entrusting the child there. [ 25 ] The mother was living in Town A until January when she decided to move to Town C.

Before her moving, she started to file the application to entrust a treatment centre, but since she moves, she did not complete it and, according to the DYP worker, she is ambivalent regarding her intention. [ 26 ] The mother testifies that she plans to attend Portage and she would like to go there with X. Her family in Town C is very supportive and she is able not to consume at her sister’s place. She also applied for a job in Town C. [ 27 ] The last event of conjugal violence between the parents occurred at the end of January 2020. The mother decided to move after that.

Since then, she never spoke with him. [ 28 ] Questioned about the access to X’s medical file, the DYP worker explained that she needed to have the Court authorization before requesting any information from the nursing. The Court gave this authorization on January 14, 2020, but since that date, and despite this authorization was given following a request from the DYP, no follow-up was done. No request was made to the nursing and doing so, no medical information is available for the DYP. The only request made was to obtain the notes taken by F when the parents were hosted during X’s hospitalization.

For sure, those notes do not provide any information regarding X’s health issues. [ 29 ] The DYP worker explains the reason that the entire medical file was not reques-ted is due to the fact that she only wanted to

know when would be the next appoint-ments. And as the nursing gave her this information, she did not consider necessary to request for more. [ 30 ] The DYP worker also confirms that no intervention plan was prepared in the situation of X. Analysis [ 31 ] The Court wishes to remind that the situation of the child was reported and was declared endangered because of negligence regarding the health care provided by the parents.

As for any ground of endangerment, it is necessary that the intervention plan target the specific difficulty to help the parents to realize the issue and to bring them to improve on this specific aspect. More precisely, in a situation of neglect regarding medical care, the DYP has to be aware of the exact situation of the child, to be aware of the different medical issues and the different appointments. To do so, the access to the medical file is a staple of a successful follow-up. [ 32 ] The

section 36 YPA allows the Director or any representative to have access to the medical file of a child in such situation. Moreover, the authorization was given specifically by the Court on January 14, 2020, but no request was made to the nursing. [ 33 ] Without this access, it was totally impossible for the DYP to fulfill his mandate to protect the child and to put an end to the situation in which the child is endangered.

During one year, and despite the different situations in which the health follow-up made by the parents was questionable, no specific interventions were made to address this difficulty. [ 34 ] The default to intervene on this topic maintained the child in the same situation and constitute an encroachment of rights.

The DYP had the obligation to take care of this issue and if a request would have been made to the health centre, the professional would have the obligation to provide the information. [ 35 ] The facts that the DYP was not aware of the exact situation of the child regarding his health follow-up, prevented the DYP from making a complete and reliable evidence.

Indeed, because of this lack of information, the evidence provided was generally based on hearsay, whereas, this evidence would have been provided by the proper medical documents which would have respected the best evidence rule. [ 36 ] The DYP consents to evaluate the aunt.

Section 4 YPA impose to take the necessary steps to maintain a child with his parents, and if not possible, with the person who are significant for him. The aunt offered to foster the child and this option will have to be evaluated immediately.

Such placement would help to maintain frequent contacts with the mother considering the very strong bonds already developed between the child and his mother. [ 37 ] That being said, to ovoid too much transfer, the Court will maintain the child to a foster family and will order that he be transferred as soon as a positive evaluation of the aunt is completed. [ 38 ] Also, as the mother plans to attend a mother and child therapy program, the Court will entrust the child under her care if she attends such a program, the whole according to the rules imposed by the therapy centre.

FOR THOSE REASONS, THE COURT: [ 39 ] GRANTS the application; [ 40 ] DECLARES that the security and the development of the child X, born on […], 2018, remain endangered; [ 41 ] ENTRSUTS the child to a foster family chosen by the Director of Youth Protection with a progressive reintegration under his mother’s care as soon as the situation allows it; [ 42 ] ORDERS that the maternal Aunt E be evaluated immediately as a foster family and if she accredited as a foster family, that the child be entrusted to her; [ 43 ] AUTHORIZES the Director of Youth Protection to conduct unannounced visits to the household of the Aunt; [ 44 ] ORDERS that the contact between the child and the parents be supervised by the Director of Youth Protection as to the frequency, modalities and degree of supervision with a minimum of once every two weeks if the child is in another community as the mother.

If the child is in the same community, contacts may occur as often as possible; [ 45 ] ORDERS that the parents report in person, at regular intervals, to the Director of Youth Protection to inform him of the current situation; [ 46 ] ORDERS that the parents take an active

part in the application of the measures ordered by the Court; [ 47 ] ORDERS that the child receive the specific health care and services required by his condition; [ 48 ] AUTHORIZES the Director of Youth Protection to have access to the child’s medical file and ORDERS the Director of Youth Protection to communicate immediately with each health centre where the child has been, to obtain a copy of the medical file; [ 49 ] STRONGLY RECOMMENDS that the parents seek help through the Social Services or another resource deemed appropriate, concerning their personal issues and alcohol consumption; [ 50 ] AUTHORIZES the exchange of information between the Director of Youth Protection with the professionals involved in the parents’ lives regarding their presence and their level of involvement with the services provided; [ 51 ] ORDERS that the parents remain sober and without any violent behaviour in the presence of the child;

[ 52 ] ORDERS that a person working for an institution or body, provide aid, counselling or assistance to the child, his parents, his foster family and his Aunt; [ 53 ] ENTRUSTS the child to the mother if she attends a mother and child treatment centre as for example Portage.

If the mother quits, ENTRUSTS the child back to a foster family or his Aunt; [ 54 ] ORDERS the A Medical Center to remind to all the medical staff about their obligation according to sections 39 and 92 of the Youth Protection Act ; [ 55 ] ENTRUSTS the situation of the child X , to the Director of Youth Protection of the A C.Y.P.C., who shall then see that the measures are carried out; [ 56 ] THE WHOLE until March 31, 2021. __________________________________ PEGGY WAROLIN , J.C.Q.

Me Geneviève Apollon, attorney for the Director of Youth Protection Me Caroline Jennis, attorney for the child Me Félix St-Amand, attorney for the mother Me Angèle Tommasel, attorney for the father Date of hearing: March 17, 2020