2013 QCCQ 19448, 2013 QCCQ 19448

Protection de la jeunesse — 137979 2013 QCCQ 19448 CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] JN 0300 COURT OF QUÉBEC YOUTH DIVISION Nos: 525-41-023856-107 DATE: November 20, 2013 ______________________________________________________________________ PRESIDING JUDGE: THE HONOURABLE JACQUES A.

NADEAU, J.C.Q. ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION OF A YOUTH AND FAMILY CENTERS, Director and X (born on […], 2010), Child and A, Mother and B, Father ______________________________________________________________________ JUDGMENT ON A MOTION FOR EXTENSION (SECTION 95 OF THE YOUTH PROTECTION ACT ) ______________________________________________________________________ WARNING: The Youth Protection Act prohibits the publication or broadcasting of any information that may lead to the identification of a child or of his parents.

Any person who contravenes this provision commits an offence and is liable to a fine (Sections 11.2.1 and 135 of the Y.P.A. ). [ 1 ] The Court is seized of a Motion for Extension filed on July 26, 2013 pursuant to

Section 95 of the Youth Protection Act by a person duly mandated by the Director of Youth Protection of A Youth and Family Centers (" the Director" ), to extend an order rendered by the undersigned on November 29, 2012. [ 2 ] Since this judgment, the child has remained in foster care and has been developing well.

She started attending daycare 2 days per week in February 2013. [ 3 ] She was entrusted to another foster home in July 2013 and will be attending daycare 5 days per week beginning in October 2013. [ 4 ] There are concerns about the child's speech as well as her in-toeing walking condition. [ 5 ] The mother maintained regular contacts with the child, even if there were certain difficulties experienced at times. Although she was informed of all medical appointments for the child, she did not attend them. [ 6 ] It is alleged that the mother still struggles with maintaining a stable lifestyle.

In addition, although she started a medical follow up at the A Hospital as well as therapy at the CLSC, she did not pursue these avenues and stopped taking her medication.

[ 7 ] As for the father, he has remained incarcerated. He claims that he has attended an anger management program but still has to complete therapy for his substance abuse issues. [ 8 ] On August 28, 2013, the Court orders that the child remains entrusted to a foster family, while also maintaining the other measures rendered by the Court on November 29, 2012. [ 9 ] As a principal measure, the Director recommends that the child remain entrusted to the care of a foster family until she reaches the age of majority.

The Director also recommends other measures which are meant to put an end to the situation of endangerment, as appears from the Addendum filed under Exhibit D-2. [ 10 ] The mother is present at the hearing and is represented by an attorney, who proceeds to make a number of admissions with respect to the allegations of the Motion.

Although the mother agrees with most of the measures sought by the Director, she wishes that X be entrusted to her immediately. [ 11 ] The father is also present and his attorney proceeds to make a number of admissions on his behalf, while also informing the Court that his client consents to the measures proposed by the Director.

However, he contests that the child be entrusted to a foster home until she reaches the age of majority, preferring that she be entrusted to a family member. [ 12 ] Considering the young age of the child, her attorney does not make any admissions on her behalf and confirms his agreement with the recommendations sought by the Director. [ 13 ] ANALYSIS OF THE EVIDENCE AND DECISION [ 14 ] The Court first deems it relevant to refer to the following paragraphs of its written judgment filed on January 17, 2013: [16] The mother downplays the situation and insists that she feels able to assume the care of X by the end of the year but based on its knowledge of the evolution of the child over the past two (2) years, the Court believes that the mother indeed needs to follow therapy to address her mental health issues before X can be entrusted back to her. [17] Moreover, as the social worker pointed out, given the maximum delays of placement under the Youth Protection Act, a permanent life plan will soon be required for X and the mother must realize that the months to come will be of the utmost importance if she wishes for the child to be entrusted back to her.

The Court invites the mother to see therapy as a positive opportunity to obtain support and guide her through this difficult period. [18] In order to encourage the mother to cooperate with the social worker and seek the therapy she requires, the Court shall authorize the progressive reintegration of the child to the mother's care provided the evolution of the situation allows for it.

The onus is thus on the mother to resolve her personal issues which are preventing her from assuming the care of X. (our emphasis) [ 15 ] Despite the very clear direction given to the mother by the Court, it is unfortunate to see that the situation has not evolved since this judgment. [ 16 ] Indeed, despite being given the opportunity to see X every day when she was in her prior foster family, the mother did not avail herself of this opportunity, nor did she attend her medical or speech therapy appointments. [ 17 ] This is unfortunate because the mother has been noted to be attentive and caring in the presence of the child. [ 18 ] However, it is also worrisome that the mother does not think that X has a speech impairment despite the Speech and Language Evaluation Report filed as Exhibit D-3 which identifies the child as a candidate for individual speech language therapy. [ 19 ] In addition, the social worker assigned to support the mother for her mental health issues concludes that the objectives set with the mother were not achieved because she experiences great difficulty in mobilizing herself, which is attributable to her depressive state (the Court refers to his report filed under Exhibit D-4). [ 20 ] The evidence also reveals that the mother lived with the maternal grandmother for a number of months before the latter was incarcerated on April 18 th , unbeknownst to the social workers.

During the time they were living together, the police had to be called twice due to arguments they were having. [ 21 ] The social worker currently assigned to the care of X states that the mother has no concrete plan to support her request for X to be entrusted to her and that the mother is compliant rather than genuinely motivated to resolve the situation. [ 22 ] She adds that the mother does not back up what she says and emphasizes that she does not see X regularly nor does she call the social worker to inquire as to how the child is doing. [ 23 ] The social worker is also concerned about the mother's stability.

Indeed, she now speaks of moving to Toronto for a fresh start. [ 24 ] She concludes her assessment of the mother by stating that the mother can assume the care of X for short periods, but certainly not on a full-time basis. [ 25 ] The mother must realize once and for all that she needs to walk the talk by acknowledging X's difficulties while also ensuring a more consistent presence for the child, as well as by resolving her mental health issues through the appropriate medical follow up as well as therapy. [ 26 ] On the other hand, despite his incarceration, the father has asked more questions and requested detailed information regarding

X. The social worker describes him as very rational and appropriate in his questions. [ 27 ] Given the age and vulnerability of the child, the Court agrees with the social worker that once the father is released from custody, the opportunity of re-establishing contacts with X can be considered.

Although the potential assessment of a family member has been discussed with the father, no one has ever called in this regard. [ 28 ] As for the Director's request that X be placed in foster care until she reaches the age of majority, the Court had the opportunity to hear the testimony of the foster mother where X has been placed for just over 2 months at the time of the hearing. [ 29 ] Although the Court does not doubt the sincere commitment of this foster mother to provide X with a safe haven and a loving environment, it must consider the situation in light of the principles set out under the Youth Protection Act . [ 30 ]

Section 3 of the Act states that the decisions made under the Act must be in the interest of the child and respect his rights. However, the interest of the child is clearly linked to maintaining continuity of care, stable relationships and appropriate living conditions corresponding to the child's age and needs, as provided for under

Section 4 of the Act . [ 31 ] Thus, when the preponderance of the evidence establishes that the maximum delay of foster home placement has been attained, such as is the case with X, and that the child cannot reintegrate the family home, the Court can order foster home placement of the child until the age of majority as the best alternative to ensure a permanent life plan. [ 32 ] However, the Court refers to the following criteria set out by Mr. Justice Normand Bonin with respect to such a situation: Chaque cas doit être évalué selon ses spécificités. L'existence simultanée des éléments suivants peut cependant favoriser une telle option: 1. cette mesure s'impose à

titre de solution ultime de nature à assurer un projet de vie stable et sécurisant pour l'enfant incluant une continuité dans les soins et une préoccupation constante reliée aux problématiques et besoins de l'enfant. 2. les perspectives de retour de l'enfant dans son milieu naturel sont presque nulles et très difficilement évaluables . Les circonstances spécifiques et conditions de vie des parents amenant le Tribunal à conclure à l'inaptitude parentale sont considérées irréversibles à moyen ou long terme. 3. l'enfant est suffisamment capable et susceptible de créer et de conserver des liens affectifs et psychologiques favorables aux parents d'accueil . À cet égard, peuvent être considérés:

a) l'âge de l'enfant en regard de sa compréhension et son adhésion à la mesure, de telle façon que l'enfant ne vive pas de conflits de loyauté à l'égard de ses parents naturels et qu'il puisse, s'il y a lieu, préserver les liens établis à leur égard.

b) la durée de cohabitation au sein de la famille d'accueil, l'implication et la stabilité de celle-ci permettant raisonnablement de conclure à la probabilité marquée que l'enfant ne vivra pas de changement de famille d'accueil en cours de placement . 4. l'adhésion en toute connaissance de cause des parents, voire leur support. 1 1 [2000] R.J.Q. Vol. 1 570 (C.Q.). (à la page 577 – nos caractères gras) [ 33 ] Applying these criteria to the case at hand, the Court finds that it is premature to talk about a permanent life plan for the child even though X's integration to her new foster home is going well.

Indeed, given that her placement in a new foster home is still relatively recent, the Court cannot at this stage conclude that there is a marked probability that X will not be subjected to another change of foster home prior to reaching the age of majority. [ 34 ] As a result, the Court concludes that an order that will expire on December 31, 2014 is appropriate in this case to evaluate the viability and sustainability of this project on a permanent basis. [ 35 ] After having received the admissions of the parties and taken into consideration the testimonies heard and the reports filed in the court record, the Court concludes that the preponderance of the evidence establishes that the security and development of the child are still in danger pursuant to the Youth Protection Act . [ 36 ] The Court is also of the opinion that the measures proposed by the Director are in the interest of the child, except for the duration of the Court order sought. [ 37 ] AS A RESULT AND FOR THESE REASONS, THE COURT HEREBY: [ 38 ] GRANTS the Motion for Extension ; [ 39 ] DECLARES that the security and development of the child, X , are still in danger pursuant to the Youth Protection Act ; [ 40 ] AND PURSUANT TO THE POWERS GRANTED UNDER SECTIONS 91 AND 91.1 OF THE YOUTH PROTECTION ACT , THE COURT HEREBY: [ 41 ] ORDERS that the child be entrusted to a foster family; [ 42 ] ORDERS that the foster home be confidential for the father;

[ 43 ] ORDERS that the frequency and modalities of contacts between the child and her parents be determined by the Director of Youth Protection with supervision, if deemed necessary; [ 44 ] ORDERS that the child receive the health care and services required by her condition, including individual speech language therapy; [ 45 ] ORDERS that the frequency and modalities of contacts between the child and the members of her maternal and paternal extended family be determined by the Director of Youth Protection with supervision, if deemed necessary; [ 46 ] STRONGLY RECOMMENDS that the mother fully engage in therapy to address her mental health issues and that she follow all the recommendations made by her treating professionals; [ 47 ] ORDERS that the parents fully collaborate with the Director of Youth Protection, meet with the worker upon request and inform the worker of any changes in their personal situation within 48 hours, including their coordinates; [ 48 ] AUTHORIZES the Director of Youth Protection to obtain and share information regarding attendance and progress with all the service providers working with the family; such information is to remain confidential to the Director; [ 49 ] AUTHORIZES the Director of Youth Protection to forward pictures of the child to the father; [ 50 ] ORDERS that aid, counsel and assistance be provided to the child and her family; [ 51 ] ENTRUSTS the situation of the child, X, to the Director of Youth Protection of A Youth and Family Centres for the purposes of executing these measures; [ 52 ] ORDERS the execution of this judgment by any peace officer, if necessary; [ 53 ] ALL OF THESE ORDERS will be in force until December 31, 2014.

Signed and filed on November 20, 2013 _______________________________________ JACQUES A. NADEAU, J.C.Q.

Mtre Camille Champeval AC7059 Attorney for the Director Mtre Daniel Bouchard AY3558 Attorney for the child Mtre Judith Ann Shapiro Knight AS9130 Attorney for the mother Me Richard Brunet AZ9927 Attorney for the father Hearing Date: September 27, 2013 JAN/mcl