2013 QCCQ 9001, 2013 QCCQ 9001

Protection de la jeunesse — 132131 2013 QCCQ 9001 COURT OF QUÉBEC Canada PROVINCE OF QUÉBEC DISTRICT OF [...] LOCALITY OF […] Youth Court Division No: 760-41-004202-126 760-41-004201-128 DATE: February 15, 2013 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE BEATRICE CLEMENT, J.C.Q. ______________________________________________________________________ X , born […], 2009 Y , born […], 2011 Children DIRECTOR OF YOUTH PROTECTION OF LE CENTRE JEUNESSE DE A Petitioner -and- A -and- B JC0B11 Parents ______________________________________________________________________

JUDGMENT ______________________________________________________________________ CAUTION : The Youth Protection Act provides that within the framework of this Act, no person may publish or broadcast information allowing a child or the child's parents to be identified. Whomsoever contravenes this

article is guilty of an offence and is liable to a fine [articles 11.2.1 and 135 Y.P.A.]. [ 1 ] The Director of Youth Protection presents motions of protection concerning the siblings X and Y, born respectively on […], 2009 and […], 2011. [ 2 ] The Director submits that the parents present persistent personal and conjugal difficulties, which affect their mutual ability to meet their children's health, developmental, security and physical needs.

As well, the mother's immaturity and emotional instability result in incidents of aggression, which impact the children. [ 3 ] More specifically, the Director alleges that the security and the development of the children are in danger for the following reasons: • In the case of X: 1. Physical abuse (mother's unreasonable educational methods) 2. Educational neglect (inappropriate parental attitudes and lack of stimulation in the parental environment) • In the case of Y: 1. Serious risk of physical abuse (unresolved history of violence on the part of the mother and exposure to domestic violence) 2.

Physical abuse (bodily harm from a guardian) 3. Educational neglect (inappropriate parental attitudes) 4. Health care neglect (health care needs not met in the parental environment) [ 4 ] As principal measures, the Director proposes that the children remain in foster care for 6 months, with supervision of their contacts with the parents. Other measures of aid and support are to accompany these for one year.

The Director produces numerous reports in the Court file, by consent and in lieu of testimony. [ 5 ] The parties consign their positions in the Court record. [ 6 ] The mother refers to the Court's discretion as to the issue of endangerment. The father's position on this issue is unclear. [ 7 ] Both parents ask for the return of the children in their care. The father admits to numerous years of conjugal difficulties. He admits the benefits of anger management, couple and family counselling.

The mother recognizes certain conjugal conflict, but denies any forms of neglect or physical abuse as to the children. [ 8 ] The attorney for the child reserves her position for the end of the hearing, at which time, she declares being in agreement with the motion and the measures. [ 9 ] FACTS [ 10 ] Family history [ 11 ] The children reside with their parents. [ 12 ] For the last five years, the parents form a couple. Their relationship is consistently conflictual and there are incidents of separation.

Tensions most often arise from issues of financial difficulties, the children or partition of family responsibilities. [ 13 ] The family moves repeatedly and evidence sustains a persistence of difficulties, requiring the intervention of social services. More particularly, the Court notes the following: • From January 22 nd to March 2010: [organisme A] follow the family for a problem as to X's diet, resulting in a failure to thrive. The parents admit to not feeding baby formula and to having misunderstood the doctor's instructions.

The parents are cooperative and make the necessary adjustments, justifying the closure of the file. (pièce D-8) • From June 9 th to November 10 th 2010: The same organisation intervenes with the mother in reason of limited care giving skills and past domestic difficulties. At the time, the parents are separated. The worker notes that the mother '" needs a great deal of assistance with the smallest tasks, and is concerned that she may need a great deal of supporting in understanding and following through on X's needs ''. The report also notes that the mother is neither truthful nor receptive to service.

The closure of the file results from the parents moving to [Province B]. (pièce D-8) [ 14 ] In October 2010, the father pleads guilty to charges of conjugal assault in [City C] and receives an 18-month probation.

[ 15 ] The family resides in the province of [Province A] for approximately one year as of the autumn 2010. It is during this time that Y is born in March 2011. [ 16 ] Y is born prematurely at 33 weeks. In his first months, his medical difficulties require three hospitalizations. [ 17 ] A diagnosed hydrocephalus problem results in surgery in July 2011 and the installation of a shunt to drain liquid from his intracranial cavity. The Director submits that this medical condition is the result of an injury.

The Court treats the evidence on this issue further in the present judgment. [ 18 ] The parents return to [City F] in autumn 2011. The [Province A] specialist suggests that Y receive a follow-up as to his shunt, upon their arrival. The parents await the medicare card and seek a referral for a neurologist. They are told to wait for a return phone call. They decide to undertake no further steps, as they consider their son is doing well.

Y is therefore still not seen by a neurologist when the Director intervenes with the family, some eight months later. [ 19 ] Initial intervention [ 20 ] In March 2012, the Director evaluates the situation of the children following a dispute at the family residence, which results in both X and his mother receiving medical attention. [ 21 ] The medical report indicates that the child has an oedema and redness on his forehead.

The information given to the hospital authorities as to the source of the injury, is his being repeatedly hit by his mother with the back of her hand. [ 22 ] As to the mother, the medical report indicates that she is uncooperative. She complains of chest pains and nausea; there is a self-inflicted injury on her left wrist. [ 23 ] At the time, the parents give diverging versions of the events. [ 24 ] To the Director, the mother indicates that during their argument, everyone is screaming and X is hurt by the cap of his bottle while she attempts to give him his juice.

In a police statement, she indicates that X's injury occurs before the argument and that he hits himself on the head with the bottle. The mother declares taking a knife, cutting herself and throwing it in the kitchen. She denies hitting her husband or her son. [ 25 ] The father offers similar versions to the Director, to his in-laws and to the police in a sworn statement: • He returns home at approximately 3 p.m. after a short hospital stay following a car accident in [City D]. • The children are crying, so the mother puts them to bed.

X continues crying, so he is taken out of his room and put in his high chair in the kitchen. • An argument ensues as to X's insistence for juice and the mother becomes rapidly enraged. She takes his water bottle and slams it on the tray of his chair.

She then slams her fist on the table and dumps the water from his bottle on his face and head. • When the father attempts to intercede, the mother hits him twice on his injured shoulder. • She turns around and hits X twice in the face with the back of her hand, causing the highchair to fall back and hit the wall. • The mother grabs a kitchen knife and cuts her wrist lightly. • The father asks her to stop or he'll call the 911. The mother hits the father and X anew. • While the father calls 911, the mother leaves the residence. [ 26 ] The father declares that the mother is unstable.

He specifies in his police statement: She has been verbally and physically abusive to me for so long and I never dared call the police because I figured they would never believe me. Since we moved here, she has vanished 3-4 times for hours. The longest was 6-7 hours. I bring the kids to my in-laws in [City E] and then I drive around looking for her. (…) She's up and down, one day she's ok, the other day she's not. (pièce D-7) [ 27 ] The father also details previous incidents when the mother has similar reactions, namely in September and December 2011.

There is an aggravation of the situation since their return to [City F]. [ 28 ] The mother faces criminal accusations of assault towards X and the father following this incident. She is bound to a restraining order as to her contacts with her spouse and sons. [ 29 ] The Director retains the necessity to intercede in reason of physical abuse in the case of X, and a serious risk of physical abuse in the case of Y.

A provisional agreement intervenes entrusting the children to their father, with supervision of the mother's contacts. [ 30 ] Two days later, the father presents himself to the police station and requests a withdrawal of the assault charges. Although both parents confirm to the Director their respect of the provisional agreement as to contacts, that same evening, the father brings the children to the mother. [ 31 ] The father presents himself to the Director's office the next day, with the children. Y is barefoot and without a winter coat. He is in a car seat too small for his size.

The father initially denies putting the children in contact with their mother, but when pressed, finally admits the contrary. An agreement ensues placing the children in immediate foster care while affording supervised visits to the parents.

[ 32 ] The parents renew their relationship shortly thereafter. The father states to his in-laws that he will continue to associate with his wife, notwithstanding the DPJ or instruction on contacts.

He qualifies the criminal charges as ridiculous and regrets calling the police. [ 33 ] SECURITY AND DEVELOPMENT [ 34 ] The Court will deal with each situation of endangerment brought forth by the Director. [ 35 ] Physical abuse [ 36 ] The Youth Protection Act defines physical abuse as follows: (e) “ physical abuse ” refers to (1) a situation in which the child is the 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; or (2) a situation in which the child runs a serious risk of becoming the victim of bodily injury or being 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; [ 37 ] The mother denies all forms of physical abuse.

She admits mood swings, which she qualifies as normal. She describes herself as a calm person. She can have angry reactions in relation to the Director, considering her past with their services. [ 38 ] The resumption of the parent's relationship after the intervention of the Director coincides with a fundamental change in the father's vision of the situation. He denies that the mother acts in an aggressive fashion in the past, especially towards the children.

He only admits to tensions in the couple, which would require family counselling. [ 39 ] The maternal grandmother testifies as to the father urgently summoning herself and her husband to the family home in December 2011. When they arrive, the father is alone with the children and he explains that the mother is extremely violent towards them. Previously that day, she locks Yin his bedroom without food or drink for many hours, because of his misbehavior. When the father attempts to care for the baby, he says that she threatens him with a knife, saying that she will kill herself and hurt them.

She then leaves the house. The father indicates that this scenario is recurrent. [ 40 ] The mother's blanket denial of any substantial problems is in direct contradiction with the objective and comprehensive evidence brought forth by the Director. [ 41 ] As to the incident of March 2012 and the family history, the Court retains the version of facts brought forth by the father at that time, which is concordant with his police statement, declaration to the Director of Youth Protection, as well as to the maternal grandparents.

He offers no reasons justifying the retraction of this version of events. [ 42 ] The Court determines that the evidence demonstrates that the parents are regularly in conflict and that the children are witness to these conflicts. The mother reacts with impulsive aggression, towards the father, X and herself.

Furthermore, these incidents of this nature gain in frequency and importance since the family's return to [City F]. [ 43 ] Y's extreme vulnerability and proximity render him at serious risk of physical abuse. [ 44 ] Although the father first denounces the family situation, his rapid retraction and resumption of the conjugal relationship demonstrate his inability to be a consistently protective parent.

The Court also notes a cyclical degeneration of the family dynamic, justifying the conclusion of its chronicity. [ 45 ] As a further factor of physical abuse, the Director alleges that Y is the victim of bodily harm while residing in [Province B], resulting in a brain injury. Dr.

Gilles Chabot testifies as an expert witness in pediatrics, as to the exact nature and source of Y's condition. [ 46 ] The parents advise the Director that Y's shunt is the result of an accumulation of liquid in his head or a hydrocephalus. [ 47 ] Concerns first arise following a neurological consultation in [City F] after the placement of the children. A scan shows that the placement of Y's shunt not only contradicts the diagnosis of hydrocephalus, but also confirms the existence of intracranial and subdural hemorrhages, or bleeding. [ 48 ] Dr.

Chabot consults the [Province A] medical files and in conjunction with the examination of the child, determines that the most probable cause of this type of hemorrhage is neurological trauma by inflicted intense shaking. He further specifies that other usual causes of such trauma are subject of investigation and consequent dismissal. [ 49 ] No bleeding in the brain is now present. Actually, the only apparent after-effect of the injury is an atrophy of the brain caused by the increase in liquid in the cranial cavity and an enlarged head.

Other after-effects are probable, justifying follow-ups in neurology, physiotherapy and ergo therapy. [ 50 ] The parents deny any action or inaction that could cause such an injury. The mother hypothesizes that the children were frequently babysat in [Province B]. [ 51 ] The Court considers that the expert medical opinion satisfies the onus of evidence demonstrating that the child was the object of

intentional infliction of neurological trauma. To satisfy their burden, the Director is not bound to produce evidence as to the exact details of the traumatic incident, nor specify the person responsible. Notwithstanding, the conjunction of the trauma with the parent's conflicts and the mother's impulsive aggressive behaviours towards the father and X, convince the Court of a probable causality. [ 52 ] Educational neglect [ 53 ] Both maternal grandparents testify as to the family's situation.

They baby-sit and frequent the children on a regular basis. [ 54 ] They testify to the fact that the children are regularly sick and are rarely dressed to match the season. More precisely, the grandmother states that every time they come over in winter, Y has no socks, winter boots nor hat. Their clothes are ''very dirty, very filthy'' and malodorous. [ 55 ] The parents show little attention to the children when visiting the grandparents. The children are regularly left in their baby seats with no stimulation, nor affection.

The parents argue as to who is to see as to the children's specific needs (diaper change, cleaning, etc.). [ 56 ] The grandfather visits the family apartment weekly. Their apartment is often the object of neglect, with accumulated unwashed dishes and food all over the floor. [ 57 ] On one occasion, the grandfather arrives at the family home at lunchtime to find X in his high chair with his back to the table. He is facing the patio door and sun is streaming on him. The mother explains that X is being punished, so ''we don't want to see his face ''.

The parents refuse to allow the grandfather to remove X from his high chair. [ 58 ] Following the separation of the parents in March, the father leaves the children with his in-laws during his work hours. The same deficiencies as to hygiene and clothing are noted during this period by the grandparents and the Director. [ 59 ] X is unable to speak a complete sentence, demonstrating underdeveloped language skills. He presents important delays on many levels: communication, gross motor, problem solving and personal-social areas.

His vocabulary is limited. [ 60 ] These elements, considered jointly with the previous social services interventions, convince the Court of a situation of educational neglect. [ 61 ] Health care neglect [ 62 ] The parents fail to take the appropriate means to follow-up on Y's medical needs by not actively seeking medical attention after their return to the province of Québec Although the Court notes that certain measures are taken, their decision to wait for a referral, their inaction in following through on the referral, result in neglect, which could have reasonably serious consequences on the child. [ 63 ] In conclusion, the evidence demonstrates that the obligations and needs of their two young children overwhelm the parents, resulting in a general situation of neglect as to their needs. [ 64 ] Decision on endangerment [ 65 ] The Court concludes that the Director discharges its onus of proving that the security and the development of both siblings are in danger for the reasons brought forth. [ 66 ] MEASURES [ 67 ] Since March 2012, the children remain in foster care and the parents attend supervised visits on a weekly basis.

A request is pending to transfer the children in the same foster home. [ 68 ] Since the onset of supervised visits, the contacts improve greatly. Initially, X is reticent to go to his parents, especially his mother. His affect is sad. He now goes to his parents without hesitation and is affectionate. [ 69 ] As for Y, his reactions remain ambivalent, although there is also an improvement in the relationship with his parents, especially since the joint visits. [ 70 ] The parents indicate that their relationship is more positive.

The father further adds that they were not ready to assume the needs of two young children. [ 71 ] The mother is very distrustful of the intervention and her cooperation is not consistent. Her contenual denial of any emotional difficulties or responsibility as to the present situation remains a significant impediment to the intervention. [ 72 ] The father maintains his passivity and support of the mother. [ 73 ] Although the children have been in placement for approximately 9 months, the parents make no substantial steps to receive services.

A request to the CLSC is unsuccessful, as a referral from the Director is necessary to proceed. They neglect to ask for such a referral nor advise the Director in a timely manner of their request. [ 74 ] The parents need to address their joint and individual issues in order to offer a serene and stable environment for their children. This is particularly pertinent for the mother, who recognizes no anger management problem. [ 75 ] The conjugal relationship also requires management.

Although the parents affirm the improvement of their relationship, they also admit to not discussing the previous events, particularly as to the father's denouncement of the mother's problems.

[ 76 ] Director suggests a short period of placement in foster care, within measures of aid, counsel and assistance for one year. To this end, the intervention will work towards the reintegration of the children in their family environment.

For this to succeed, it is necessary that the parents become more transparent with the Director and demonstrate a concerted effort to participate in the measures designed to put an end to the situation compromising the children's security and development. [ 77 ] The Court considers that the measures proposed by the Director are reflect the needs of the children and respect their rights as well as their best interests. [ 78 ] FOR THESE REASONS, THE COURT: [ 79 ] GRANTS the motions; [ 80 ] DECLARES that the security and the development of the children X and Y are in danger according to the Youth Protection Act; [ 81 ] ORDERS that the children be entrusted to a foster family for a period of 6 months; [ 82 ] ORDERS that the contacts between the children and their parents be determined following mutual agreement between the parties and in the presence of a third party designated by the Director of Youth Protection; [ 83 ] ORDERS that the parents report in person, at regular intervals, to the Director to inform of their current situation; [ 84 ] ORDERS that the parents take an active

part in the application of the measures designed to put an end to the situation compromising the security or development of the children; [ 85 ] ORDERS that the children receive specific health care and health services required by their situation, namely: • For Y, services in neurology, ergotherapy, physiotherapy and a regular medical follow-up; • For X: evaluation for speech language therapy and a regular medical follow-up, [ 86 ] ORDERS that a person working for an institution or body provide aid, counsel or assistance to the children and their family for a period of one year. [ 87 ] RECOMMENDS that the parents undertake evaluations and/or follow-ups as to anger management and couple therapy; [ 88 ] ENTRUSTS the situation of the children to the Director of Youth Protection of Les Centres jeunesse A for the execution of the measures. __________________________________ BEATRICE CLEMENT, J.C.Q.

Me Karine Nantais Attorney for the Petitioner Me Michel Robert Attorney for the mother Me Karine P. Poissant Attorney for the children Date of hearing: July 9, 2012, January 14, 2013