2013 QCCQ 10042, 2013 QCCQ 10042

Protection de la jeunesse — 132907 2013 QCCQ 10042 COURT OF QUEBEC YOUTH DIVISION CANADA PROVINCE OF QUEBEC DISTRICT […] N°: 525-41-021924-097 DATE: May 1, 2013 ______________________________________________________________________ BY THE HONOURABLE ANN-MARIE JONES, J.C.Q. ______________________________________________________________________ Director of Youth Protection A Youth and Family Centres Applicant - and - X Born on […], 2009 - and - A - and - B Respondents ______________________________________________________________________ JUDGEMENT

Section 95 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 11.2.1 and 135 Y.P.A .] [ 1 ] The Court was presented with a motion for extension by the Director of Youth Protection of an order rendered April 19, 2012, entrusting the child to her mother’s care along with many supporting measures for a period of nine months. [ 2 ] The principal facts alleged in support of the motion are the following: • The child remained under the care of the mother; • On April 27, 2012, the situation of the child was signalled again after the child sustained a severe water burn on one of her hands, while having a visit with Mr.

B, and in the presence of Mr. B’s girlfriend; • The hospital concluded that the water burn was not an accident; • Mr. B and his girlfriend, Ms. C, did not provide a clear explanation as to how the child sustained the injury; • Since then, there has been no contacts between the child and Ms. C; • The visits with Mr.

B resumed in August 2012, for day visits only; • This situation raised concerns as to the child’s hygiene as her bandages were seen to be very dirty; • The mother’s telephone was disconnected in July and it became difficult to have contacts with the mother and have a follow-up; • In July 2012, the worker learned that the mother had a new boyfriend living in the home. The mother refused to provide the name of the boyfriend until she was ordered to do so during a court hearing regarding her other children; • The new boyfriend has a lengthy criminal record;

• There are concerns regarding the boyfriend’s drug consumption.

Attempts were made to get in touch with him and send him for drug testing, but he refused to attend; • The child began daycare in August 2012; • The child was not assessed at the Hospital A and the worker has not received confirmation of the child’s health situation. [ 3 ] The Director of Youth Protection is asking the Court to declare still compromised the security and development of the child in reason of psychological ill treatment and to declare the security and development of the child in danger in reason of physical abuse, following the incident of April 27, 2012, whereby the child suffered severe burns. [ 4 ] The Director of Youth Protection recommends that the child be maintained in her mother’s care, that the frequency and modality of contacts between the child and Mr.

B be determined by the Director of Youth Protection and that there be a prohibition of contacts between the child and C. Furthermore, that aid, counsel and assistance be provided to the family for a period of one year. [ 5 ] The mother admits the facts alleged in the motion and agrees with the measures recommended by the Director of Youth Protection. The mother is also asking for the Court to declare the security and development of the child compromised under

section 38 (e) (1) of the Youth Protection Act . The mother agrees to continue working with an educator and to participate in family therapy. [ 6 ] Mr. B, the child’s biological father, admits the majority of the facts alleged in the motion and agrees with the recommended measures. However, he considers that there is no ground for the Court to conclude that the child was victim of physical abuse. Mr. B maintains that the incident of April 27, 2012, where the child sustained severe water burns was accidental. Mr. B does not work except for odd jobs.

He attends the Young parents program with his children once a week. [ 7 ] Counsel for the child considers that the measures recommended by DYP are in X’s best interest. Furthermore, after hearing the evidence, Me Bouchard agrees with DYP that the security and development of the child are compromised in reason of physical abuse.

Physical abuse [ 8 ] The Youth Protection Act defines physical abuse as follows: 38 (e) (1) - a situation in which the child is victim of bodily injury or is subjected to unreasonable methods of upbringing by his parents or another person, and the child’s parents fail to take the necessary steps to put an end to the situation. [ 9 ] In child protection matters, the applicable criterion is the ordinary civil standard of proof o n the balance of probabilities. T herefore it is by preponderant evidence that the Court must reach the conclusion whether the child was victim or not of physical abuse. [ 10 ]

Article 2804 of the Civil Code of Quebec codified this rule established by the jurisprudence: Art. 2804. Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. [ 11 ] In this case, DYP has the burden of establishing that the child was victim of physical abuse and that the abuse is more probable than improbable. [ 12 ] Essentially, the factual information establishes the following situation. [ 13 ] The child lives with her mother and had overnight visits with Mr. B, her biological father. Mr.

B lives with his spouse, C, their two children and Ms. C's two children. [ 14 ] On the evening of April 27, 2012, the father went out to run errands. [ 15 ] When he returned to the house, he heard X screaming and ran inside. He saw that X’s left hand was severely burned and brought her to the hospital by taxi. [ 16 ] Ms.

C had called the mother and had told her that she had sent X to wash her hands and that X had turned on the hot water and burned herself. [ 17 ] The mother met the father and the child at the hospital. [ 18 ] The doctors at the emergency room determined that the injuries were clearly inflicted and that X's hand had been held down in hot water. [ 19 ] X was interviewed by Sergent detective [Social Worker 2] on May 14, 2012. The video of the child’s interview was played at the hearing and the child was heard, more than once, to say: "Aunt C did it".

X explained that her “aunt C” had hurt her and that she had poured hot water on her arm. The child said that she was in the bathroom when it happened. She went on to say that her father asked her what happened and that she told him: "Aunt C did it". [ 20 ] The father testified that he went to the store and when he returned X was screaming and her hand was badly burned.

He went on to explain that the hand was worse then what appears on the photographs that were filed, as these photographs were taken three days after the incident. [ 21 ] The father stated that he believes it was an accident and that X burnt herself while playing with the faucets. He then explained that the water at his house at the time was extremely hot.

[ 22 ] C was not present at the hearing to explain what had occurred. The Director of Youth Protection sent a letter to Ms. C advising her that the Director was requesting a Court order restricting contacts between herself and X and informing her that she had the right to be present and make representations to the Court. [ 23 ] The medical report, filed as exhibit D-2, indicates that the child suffered a second degree scald to the left hand and that the injury was uniform. Furthermore, that there was a clear tidemark above the wrist and no splash marks. [ 24 ] Dr.

Chauvin-Kimoff concludes as follows: Conclusions: 3 year old with a significant burn injury without an adequate accidental explanation Burn consistent with a scald injury secondary to immersion Pattern of burn highly suspicious for a forced immersion event or immersion with restraint Further evaluation by DYP is clearly indicated.

The involvement of police under the multi-sectorial entente should be considered General medical evaluation and follow up for all four children is recommended Specific care and follow-up needs for this burn injury must be assured The need for DYP involvement and protective measures for X appears evident Risk evaluation should guide any further role for DYP with the other young children [ 25 ] Pictures of the child's left hand were filed as exhibit D-7.

They clearly show the extent of the burns and the fact that the hand is uniformly burnt. [ 26 ] The explanation that these burns were accidental cannot be retained. A child would not put her entire hand in very hot water. She would feel the pain as soon as her fingers touched the water and pull her hand away. Furthermore, to inflict a second degree burn, the hand had to stay in the water for at least a few seconds which is consistent with forced immersion. If the child had been free to move her hand, the injuries would not have been so severe.

Finally, the entire hand was uniformly burnt and there was no signs of splatter that could indicate the burn was caused by running water. The father and Ms.

C also gave more than one explanation to the medical staff and the youth workers as to how the incident occurred. [ 27 ] Considering the documentary and medical evidence, the details of the incident and the pattern of the burn, the child’s declaration, as well as all the corroborative elements, the Court concluded by balance of probabilities that the incident was not accidental and constitutes physical abuse following the definition of the law. [ 28 ] The mother's handling of the child’s injuries were also a concern.

Directive of cleaning for X's hand were not followed and the mother missed bandage changes at the CLSC. However, overall the child is doing well and has recovered from her injuries. [ 29 ] After reviewing the evidence, the Court concludes that the security and development of the child are compromised under

section 38 (e) (1), physical abuse. CONCLUSION [ 30 ] The Court also heard the testimony of Ms. [Social Worker 1], youth delegate, and read the reports the Director filed as proof of the child’s situation. The evidence reveals that DYP's involvement is still necessary. [ 31 ] Since the last Court order, the mother got into a domestic dispute with her former boyfriend, Mr. D, when she asked him to leave the apartment due to his drug use. In December 2012, Mr. E and Mr. F were living at the mother’s home and both have a criminal record. Mr. E has since left the home and Mr.

F is now the mother’s boyfriend. [ 32 ] In January 2013, X was assessed at the Hospital A by Dr. Donger, who was in agreement with the recommendations that were made by the Director. Dr. Donger stated that there were no serious concerns regarding X’s behaviour as she saw it stemming from the child witnessing violence and therefore mimicking violent behaviour that she had been witness to.

The child is also on a waiting list for a posttraumatic stress disorder assessment. [ 33 ] An educator has been working with the family to help with X’s behaviours and ensure that the mother has an appropriate routine in place for her daughter. A chart with stickers has been put in place and Xs behaviour has been improving. X is no longer attending daycare but will be integrating pre-kindergarten in the fall. [ 34 ] The contacts between X and Mr. B are currently occurring at the mother's home. The visits must be determined by the Director of Youth Protection as Mr.

B does not acknowledge that the burns were caused by Ms. Croxen. [ 35 ] Under the circumstances, it is in the child’s best interest to be entrusted to her mother’s care with a social follow-up for a period of one year. The mother and Mr. B must collaborate with the Director of Youth Protection in order for the situation to improve. [ 36 ] THEREFORE, THE COURT: [ 37 ] GRANTS the motion;

[ 38 ] DECLARES still compromised the security and development of the child under

section 38 (

c) of the Youth Protection Act and DECLARES the security and development of the child compromised under 38 (e) (1) of the Youth Protection Act, physical abuse; [ 39 ] ORDERS that the child be entrusted to the care of her mother; [ 40 ] ORDERS that the mother and Mr. B ensure that the child is not exposed to any form of violence; [ 41 ] RECOMMENDS that the mother seek professional help to assist her in better managing her financial resources; [ 42 ] RECOMMENDS that Mr.

B inform the Director of Youth Protection of any steps he undertakes to improve his parental abilities and limit his substance use; [ 43 ] RECOMMENDS that Mr.

B take the necessary steps in order for his name to be registered on the child’s birth certificate; [ 44 ] ORDERS the mother to inform the Director of Youth Protection in advance of any person that will be living in the home, in order for the Director of Youth Protection to meet with them and RECOMMENDS that the mother encourage these persons to meet with the Director of Youth Protection; [ 45 ] ORDERS that the child receive all health care services required by her situation; [ 46 ] ORDERS the mother to ensure that the child receives all necessary health care services, including the posttraumatic stress disorder assessment; [ 47 ] ORDERS that Mr.

B be authorized to receive the results of any assessments that the child undergoes; [ 48 ] ORDERS the Director of Youth Protection to be authorized to have access and share all pertinent information from the treating professionals working with the family and to have access to any of the child’s assessments; [ 49 ] ORDERS that the frequency and modality of contacts between the child and Mr. B be determined by the Director of Youth Protection, including supervision if deemed necessary; [ 50 ] ORDERS the mother and Mr.

B to inform the youth workers in advance of any changes to the agreed upon terms of the contacts between Mr. B and the child; [ 51 ] ORDERS a prohibition of contacts between the child and Ms.

C for the duration of the present order; [ 52 ] ORDERS that the family continue to benefit from the services of an educator for as long as deemed necessary; [ 53 ] ORDERS that aid, counsel and assistance be provided to the child and her family for a period of one year; [ 54 ] ENTRUSTS the situation of the child, X, to the Director of Youth Protection A, who shall see that the measures are carried out; [ 55 ] ORDERS the execution of the present order by any peace officer. Signed June 21, 2013 Ann-Marie Jones, J.C.Q.

AMJ/dg Me Adelia Ferreira Counsel for the Director of Youth Protection Me Daniel Bouchard Counsel for the child Me Judith Shapiro Knight Counsel for the mother Me Paul Grzela Counsel for the father

Date of hearing: May 1, 2013