IN THE MATTER of a hearing under THE CHILD v. FAMILY SERVICES ACT, 2011 SKPC 24

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 024 Date: March 9, 2011 Location: Yorkton _____________________________________________________________________________ Between: IN THE MATTER of a hearing under THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF S.D.D., born November 16, 2004 - and - S.M.D. Appearing: Donna Taylor For the Ministry of Social Services Fred Fisher For the mother, S.M.D. JUDGMENT B.

KLAUSE , J [ 1 ] The Ministry of Social Services bring an application for a permanent order committing the respondent child, S.D.D. to the Minister for Social Services. [ 2 ] The trial of this matter was heard in Yorkton, Saskatchewan on December 17 and 20. The Minister called three witnesses and the respondent called two witnesses.

Chronology of the File [ 3 ] S.D.D. was born in Winnipeg, Manitoba on November 16, 2004, to S.M.D., who was then 18 years of age. No father is listed on the birth certificate.

Within 17 hours of birth, the infant was apprehended by the Manitoba Minister of Social Services and the child was placed in foster care for the next eight months. [ 4 ] Subsequent to that initial foster placement, the child was placed in the care of her maternal grandmother, J.M. who had exclusive custody of the child until February of 2010, pursuant to a temporary order of placement. [ 5 ] In February of 2010, S.M.D. the birth parent brought her concerns to the Saskatchewan Ministry of Social Services in Yorkton, complaining that J.M. was not adequately caring for S.D.D.

As a result of that complaint, S.D.D. was taken into foster care where she remains. [ 6 ] The history of this family is both convoluted and tragic, encompassing many moves across Manitoba, Saskatchewan and Alberta. The evidence disclosed that the grandmother essentially had the permanent care of the child but that S.M.D. would have occasional access to the child and at times, was granted longer access when her condition in regard to sobriety, anger or other circumstances allowed. Suffice it to say, for the first five years of her child’s life, S.M.D.’s involvement as a parent could best be described as minimal.

Her mother J.M. and stepfather, E.Y., providing the majority of care for the child. The evidence from the respondent was that she had regular contact with the child including having her overnight and on weekends but the two primary caregivers were alway her grandmother and step grandfather. [ 7 ] S.M.D., by all accounts had a chaotic life from childhood. Much of her early years were spent in foster homes or on the run. She described a very difficult and unplanned pregnancy, which resulted in significant physical and emotional trauma. That led her to conclude that she will never endure another pregnancy.

Following the birth of S.D.D., she was unable to properly care for her child and, after an initial foster home placement, the baby was placed in the care of her maternal grandmother. [ 8 ] For the next several years, the grandmother, moved several times and at all times parented the child with the biological mother, S.M.D. either living close by and maintaining a degree of contact or, at other times, not being there at all.

Obviously S.M.D. was never in a position to be a full-time parent as her lifestyle precluded that level of commitment. [ 9 ] The Minister of Social Services was either mostly uninvolved in the child’s placement or was satisfied that the status quo be maintained. As long as a person of sufficient interest, the grandmother, was involved, the Minister was not interested in pursuing a long- term or permanent order. [ 10 ] The matter was brought to a conclusion in February of 2010, when S.M.D. complained to the Minister of Social Services that her mother was physically abusing the child.

As a result of this complaint, the Minister’s employees in Yorkton reopened the file, apprehended the child and placed her in a foster home, where she has remained since February of 2010. [ 11 ] Since that time the Minister’s employees have attempted to re-engage the mother in a series of supervised visits. There has been, and continues to be, significant contact between the Minister’s staff and the mother. She is justifiably suspicious of any government department and tends to lash out at people she perceives to be causing her trouble.

This would include nearly every employee of the Minister’s staff that has contact with her. [ 12 ] Her missed appointments with the Minister’s staff and her overt hostility towards her employees have led to a complete break down between S.M.D. and the Minister. Finally the Minister applied for a Protection Hearing and seeks a permanent order for S.D.D.

Position of the Parties [ 13 ] The Minister’s is a valid one and logical on its face. S.D.D. is now six years old and is the product of a very unstable upbringing which is manifesting itself in unexpected and disturbing behaviours. They argue that she needs stability, that her mother is incapable of providing that stability and that the best interests of the child require a permanent order so that she can be placed into an adoptive family. There is no person in the immediate family of S.D.D. that is prepared to take her into their own home with the possible exception of S.M.D.’s sister.

S.M.D. does not consider her sister to be a valid option as her sister is now residing with her father, M.D., who she has infrequent contact with and who she objects to on other grounds. [ 14 ] The position of the respondent is simple. They admit that S.M.D. is difficult to deal with and a quick perusal of her resume as a “parent” would result in an almost automatic disqualification of her as a custodial parent.

However, she argues, that she has not been given the ultimate chance to change her chaotic lifestyle and demonstrate to the Minister that she is serious about change, that she can be a responsible parent and that she is committed and serious about becoming a true parent and custodian of her daughter. The Law [ 15 ] The ultimate question is as is stated in The Child and Family Services Act : what is in the best interest of the child? 37(1) Subject to subsection (2), if the court determines that a child is in need of protection, the court shall make an order that the child: (

a) remain with, be returned to or be placed in the custody of his or her parent. (

b) be placed in the custody of a person having a sufficient interest in the child; or (

c) remain in or be placed in the custody of the minister for a temporary period not exceeding six months.

(2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanently committing the child to the minister.

(3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (

a) a child is in need of protection; and (

b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child were permanently committed to the minister; order that the child be placed in the custody of the minister until the child attains the age of 18 years.

(4) In making an order pursuant to subsection (1), (2) or (3), the court; (

a) shall consider the best interests of the child (

b) may consider the recommendations of the officer mentioned in subsection 36(2); and (

c) may consider the recommendations of a chief, a chief’s designate or an agency that appears in court pursuant to subsection (11).

(5) In making an order pursuant to subsection (1) or (3), the court may: (

a) impose any terms and conditions that the court considers appropriate; and (

b) include in the order a provision respecting access to the child. [ 16 ] Given the order of the sections of the Act , it seems obvious that taking away a child and placing him or her in permanent custody of the Minister is the last and most draconian choice. The entire purpose of the Act is to protect the child and put his/her interests as the primary goal. [ 17 ] Counsel has also supplied to me the case of Saskatchewan (Minister of Social Services) v. S.(E.K.) , 1996 Can LII 7131 , also reported at 146 Sask. R. 46, a decision of our Court of Queen’s Bench. Both parties agree that this is a leading case in Saskatchewan on the issue of permanent orders under the Act .

[ 18 ] At page 10 of that case: The court must look at various factors including (without meaning to be exhaustive of the possibilities) any changes in circumstances or conduct of the parent that has occurred or is being proposed, any plan of corrective action that is being advanced, the nature of any resources suggested and the time frames which may be involved. The options in s. 37(1) are premised upon a reasonable prospect of change, within a reasonable length of time and a reasonable use of resources if needed. and further at page 11: The foregoing comments must be applied with caution.

I agree that good intentions by themselves are not sufficient. The question in every instance must be whether, on all of the evidence before the court, the court is satisfied sufficient change can occur within the context of an order under s. 37(1) such that it is in the best interests of the child to make such an order. Given the objective of the Act as set out in s. 3, a permanent committal does not ipso facto follow just because the parent has not yet turned that new leaf.

Analysis [ 19 ] At the hearing, the Minister called the child care worker, her supervisor and an expert who conducted a Parenting Capacity Evaluation. I accept the evidence of the witnesses as valid. No one questions their interest in the child or what, in their opinion, would be the optimal result for the welfare of S.D.D. However the involvement of Ministerial staff has been limited, not due to any fault of the Minister but rather due to the chaotic lifestyle led by the family in question. As long as S.D.D. was in the custody of her maternal grandmother, there was really no complaint by anyone.

It was only when S.M.D. brought the situation to the attention of the Minister, that they began their file and commenced an investigation. [ 20 ] All parties agree that S.M.D. and S.D.D. are “bonded” and that, all things considered, she could be a custodial parent to her child. She is a good housekeeper and is able to manage the usual household chores given time and sufficient income. The prognosis for change is poor in my opinion for many of the same reasons identified by Dr. Greenough in his very comprehensive report.

He identified both areas of weakness and strength resulting in 17 areas of weakness and seven areas of strength. As stated above, I accept unreservedly his assessment of S.M.D. which conforms completely to my assessment of her as a witness. [ 21 ] However, in my opinion, while he did express significant misgivings about her parenting skills and in particular, her capacity to change her lifestyle, attitude and behaviours, Dr. Greenough did not rule her out completely. In fact, his first recommendation suggested that S.D.D. not be placed in S.M.D.’s care “at this time”.

Additionally, he recommended that, no matter what happens, that S.M.D. be given scheduled and ongoing contact with S.D.D., due to their obvious level of attachment. He then outlined a very comprehensive list of conditions that would have to be met if S.M.D. were to have any chance of regaining permanent custody of S.D.D. [ 22 ] The only real weakness in the Minister’s case, if indeed it can be termed a weakness, is the shortage of time that the Minister has been involved in S.D.D.’s case.

It was only since February that the matter was brought to the Minister’s attention and indeed, brought to the Minister’s attention by S.M.D. who complained of the care that S.D.D. was receiving at the hands of her maternal grandmother. This is not a case where the Minister has been actively and consistently involved with S.M.D. and finally has concluded that reunification cannot occur. It is more of a situation where the Minister is attempting to predict, in advance, the outcome of any continued involvement of S.M.D. with S.D.D. and with the Ministry.

I share their concerns but I am not satisfied that the Minister has had sufficient involvement with S.M.D. to demonstrate that she is completely unfit as a mother or lacks the capacity to change. [ 23 ] Frankly, S.M.D. presents as a very hostile, impetuous young woman who often speaks before her brain is fully engaged in what she is saying. She is frank to the point of rudeness and obviously has a very long and difficult history with agencies of the government. To some extent, she is not at fault as this was the upbringing she herself was subjected to.

It appears that the cycle may be continuing with S.D.D. and it is everyone’s wish that this cycle of the Minister’s involvement be ended so that everyone can live a happy and productive life without the involvement of any governmental agency. [ 24 ] She also presents as articulate and well meaning. She obviously loves her child but is having tremendous difficulty in providing for the child due to her own chaotic lifestyle. She has dreams of an education which are considered by many to be grandiose,

given that at present she has only her Grade 8. She longs to start at the top of the heap and not work her way up from the bottom like most people. But she also strikes me as determined; when her mind is made up, she can follow through. No doubt she has been a difficult client for her own counsel and has been a difficult client for the Minister’s staff but her goal has always been, at least recently, to get her child back. She asks simply for “one last chance”. [ 25 ] I am prepared to give her one last chance.

I am not optimistic about her ability to change but given the limited time of involvement with the Minister in Saskatchewan with her and S.D.D., I am prepared to grant her the opportunity to not only “talk the talk” but to “walk the walk”. Actions speak louder than words, and if she really wants to parent S.D.D. and have her child back in her custody, she is going to have to accept that she has to demonstrate real and fundamental change and it has to begin immediately and concertedly. She would also like a fresh start with a new worker at the Ministry of Social Services.

I do not fault her present worker for the work she has done and frankly I suspect that she has done all she can and perhaps, all that anyone can. It may however be to the Minister’s advantage to assign a new worker to the case so that everyone can start on a fresh page. It necessarily follows that in my opinion, the best interests of S.D.D. include one final attempt at S.M.D. rehabilitating her parenting abilities so that she can become S.D.D.’s primary custodial parent.

This however, cannot go on forever, as S.D.D. is fast approaching the age where an adoption will become more difficult especially given some of her more recent aberrant behaviours. [ 26 ] No one, including S.M.D., is suggesting that she have S.D.D. back now. Obviously, she is not in a position to provide the stability that the Minister wants and that S.D.D. deserves.

In my opinion, S.D.D. is a child in need of protection as outlined by the Act but that her best interest at this time is not to be placed for adoption but rather to give her biological mother one last chance to demonstrate constructive change and an ability to bring her parenting abilities up to the minimal standard accepted by society. [ 27 ] I therefore make the following order pursuant to the Act : 1. That S.D.D. remain in the custody of the Minister for a temporary period not exceeding six months. 2.

That S.M.D. establish and remain in a residence in the Yorkton area or move only with the consent of the Minister. 3. That she gain and maintain suitable employment or pursue her education actively. 4. That she work cooperatively and without incident with the staff of the Minister. 5. That she follow the directions and advice of professionals who work with S.D.D. and S.M.D. without incident. 6. That she maintain regular and positive supervised access. 7. That she engage and maintain a positive and constructive counselling relationship with a therapist. 8.

That she establish an ongoing consultative relationship with a psychiatrist regarding anxiety and take whatever medications are prescribed to her on a regular basis. [ 28 ] S.M.D. should completely understand that this is quite probably the last chance she will be given in order to demonstrate to the Court, to the Minister and most importantly to herself and her daughter, that she can change and she can become a responsible and nurturing mother. B. Klause, J