2023 QCCQ 7389, 2023 QCCQ 7389

Protection de la jeunesse — 231475 2023 QCCQ 7389 QUEBEC COURT CANADA PROVINCE OF QUEBEC DISTRICT OF […] TOWN OF […] « Youth division »

N os : 455-41-001533-223 DATE : January 20 th , 2023 ______________________________________________________________________ BY THE HONOURABLE PASCALE BERARDINO, J.C.Q. ______________________________________________________________________ IN THE SITUATION OF : X Born on […], 2019 [SOCIAL WORKER 1] , person duly authorized by the Director of Youth Protection; Applicant -and- A Child’s mother -and- UNDECLARED FATHER ______________________________________________________________________ JUDGMENT [1] ______________________________________________________________________ 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 9.2, 9.3 and 135 Y.P.A.).

Introduction [ 1 ] The Director is requesting that the Court declare the security and development of the child X in danger on the grounds of physical neglect. [ 2 ] As protective measures, the Director recommends that the Court entrust the child to a foster family, suspend all contacts between with his mother, order that the child receive all health care and social services required by his situation, namely medical and dental follow-ups, the whole with accessory measures and a social follow for a period of one year. [ 3 ] At the hearing on January 20, 2023, the mother is present and is represented by a lawyer.

She admits the situation of compromission and accepts the child’s placement. However, she refuses that her contacts be suspended. Instead, she suggests that they be supervised with the possibility to lift the supervision. She also wants a shorter order for a period of six months. [ 4 ] The child does not have a declared paternal filiation on his birth certificate. [ 5 ] The child's lawyer, after hearing the evidence, suggests that the evidence shows another ground of compromission: educational neglect.

As for the suspension of contact with the mother, she states that it is necessary because of the child’s important reactions to a long period of time after seeing his mother. She is also of the opinion that a six month order would be too short. Questions in litigation

[ 6 ] Are the security and development of the child X in danger also for educational neglect? [ 7 ] Are the contacts with the mother beneficial to the child? Do they answer his needs? Are they in his best interest?

Context and analysis [ 8 ] X is three years old and lives with his mother and his older sister Y who is five years old. [ 9 ] The Director intervenes in the family regarding a situation of physical neglect (unanswered needs related to the provision of food, clothing, and hygiene in the maternal home). [ 10 ] On April 26, 2022, an Agreement on Voluntary Measures was signed for a period of nine months, entrusting the children to the mother. [ 11 ] The situation of compromission is described as follows: […] The information gathered corroborated the fact reported regarding the child’s environment: dirty diapers in full, opened garbage bags; encumbered counters with dirty dishes from a few days prior; the apartment smells strongly of urine.

The mother has difficulties providing hygiene necessities such as toilet paper and laundry soap. The insufficient lunches and the sometimes lack thereof for the older sister are concerning, and therefore is also a preoccupation for X. The daycare to has lend clothing for the child to has the necessary seasonal clothing. The current situation is a consequence of the poverty and lack of a social “safety net” for this family. However, the chronicity of the situation corroborates the aspect of neglect.

Moreover, considering that the family has already benefited from the services, without improvement, we evaluated they are currently in need of protection, not only services. Ms. A recognizes difficulties in the current situation. She engaged in our services, not only offering a good collaboration but seeking support from DYP.

She is motivated to better her child’s life and her own. […] [2] [ 12 ] At the time, the mother was also living at the maternal grandmother’s home because the landlord had repossessed her own apartment. [ 13 ] Since then, the situation of neglect did not improve. [ 14 ] Although the mother is in a precarious financial situation, the delegate has noticed some questionable purchases and impulsive buying. [ 15 ] Nonetheless, she continues to struggle providing food for her children. [ 16 ] The same food can stay in the refrigerator for several weeks, even after going bad. [ 17 ] The apartment that the mother finally found in May of 2022 was rarely clean and was always on the verge of being unsafe for the children. [ 18 ] The school reports that Y sometimes smelled so bad that the stench lingered even after she had left the room. [ 19 ] The mother also lacked transparency, so the delegate could never be sure that the children’s needs for food, hygiene and safety were being met. [ 20 ] Her overall collaboration was lacking.

When meetings were scheduled with the delegate, the mother would often ask to delay or postpone, change the location, or cancel it. [ 21 ] Furthermore, on the educational level, despite the fact that the mother received weekly services from an educator since March 2022, the children still showed the same developmental delays due to a lack of stimulation. [ 22 ] The follow-up with the educator was closed on July 15, 2022, due to a lack of mobilization and application of the mother’s advice. [ 23 ] In fact, the mother did not seem to know or understand what she needed to work on. [ 24 ] By that time, the Director concluded that the mother’s personal difficulties (financial, organizational and social), were interfering so greatly with her ability to meet the children's needs that it was necessary to place X in foster care and Y in the care of her father. [ 25 ] On July 26 th , 2022, the Court was to proceed on a provisional placement motion by the Director but the case was postponed because the mother was at the hospital with X.

In fact, the child had been taken by ambulance to the hospital for a gastroenteritis. [ 26 ] On August 2 nd , 2022, X was entrusted to a foster family as per an immediate protective measure. [ 27 ] The hearing finally proceeded on August 9, when the mother suggested that X and his sister be entrusted to their maternal aunt. [ 28 ] Nonetheless the Court decided to entrusted X in a confidential foster home and Y with her father.

[ 29 ] The Court also authorized supervised contacts with the mother and allowed for the lifting of the supervision if the situation allowed. Evolution of the situation since placement The child in the foster home [ 30 ] At his arrival in the foster home, X showed these behaviour: “From the first night with the foster family, X was very comfortable in the home and needed no encouragement to go play with the toys and explore the house. At the beginning of the placement, the foster family observed several concerning behaviours and health signs in X.

When he first arrived, X did not seek or seem to enjoy physical contact with an adult, he would not reciprocate a hug and sometimes even pushed away the adult holding him, and he was uncomfortable with praise and did not know how to react to it. X was very possessive of toys (even those that did not belong to him) and did not know how to play with another child - only in parallel with similar toys. When he was frustrated, X would pinch and bite himself, when he was frustrated with another person he would throw things at them, push them, and even voluntarily trip them.

X could use a few words, but was more inclined to whining and pointing at things. X constantly asked for food; even when he was visibly full after dinner, he had no table manners (used his hands to shove food in his mouth), and ate very quickly; without chewing. X did not like bath time. He did not understand the concept of using a toothbrush on his teeth nor of cleaning his ears. He did not seem to notice when he dirtied himself and never asked to be cleaned (e.g.: spilled yogurt on his shirt). X had not started learning to use the bathroom.

X currently looks for and enjoys hugs from his foster parents and siblings. He understands the difference between a “soft” and “hard” touch, and actively looks for praise when he does something good. He knows that when he hurts someone he has to say “sorry” and do a restorative gesture, such as giving a hug (does so without prompting. He now knows how to share his toys and can even play imaginary/pretend games with other children. He generally speaks in short sentences, but is quickly leaning to make full grammatically- correct sentences and can count from one to four. He speaks both French and English.

X can now use utensils, knows to eat small portions and chews his food. In the last few weeks, he has started naming being full and stops eating when he no longer needs to. He now likes bath time, and can brush his teeth by himself. In fact, he can now do his complete morning routine by himself with just a little supervision (getting up, making his bed, going to the bathroom, brushing his teeth, and getting dressed). X has been clean (without diapers) since 3 weeks after being with the foster family.

Health wise, the foster family noticed that X’s teeth get stained by the colour of anything he eats, that his legs were a bit bow-shaped, and that his feet turned a bit inwards. Additionally, they noticed that X’s belly was bulging while his legs and arms were rather thin; a consultation with a nurse (811) revealed this could be a sign of malnutrition. After a few weeks of taking vitamin supplements, X had lost his belly and gained a little weight. On September 27th , 2022, the foster family scheduled a doctor’s appointment for a check-up.

This appointment and following blood-tests revealed that X has a serious iron deficiency, is late on several vaccines, and has a low red blood-cell count. X is currently taking iron supplements and is catching up on his vaccines. X is close to both of his foster parents, but has generally shown a preference for his foster father in daily routines; such as bedtime and going to the bathroom. In view of that, X’s behaviour of being extremely protective of his foster mother when he perceives a threat to her, from the foster father, is doubly concerning.

This happened on two occasions, once when the family was messing around making a cake and the foster father “threatened” to put frosting on the foster mother’s face and once when the foster father threw a kitchen towel in the sink from far away upon the request of the foster mother to do so. In both cases X physically put himself between the foster parents and pushed the foster father away from the foster mother while screaming. This behaviour lasted 2-3 hours in both cases; where X refused to let anyone close to the foster mother and used physical violence to keep anyone away.

When we questioned the mother as to whether or not X had similar behaviour in the past, she claimed he used to push people away or would scream when someone tried to hug her but never reacted with this level of intensity. She saw this as some sort of jealousy/possessiveness over his mother. Ms. A does not know why he would be this protective and reactive in this context, she is certain he has never witnessed any sort of physical violence done towards her. X started a French daycare in mid-October 2022.

With references from his doctor and the DYP, X is in a smaller group - with more educators - to help him adapt to his new environment. He generally does well at daycare, but is easily disrupted by the arrival of other kids and when he sees a car similar to that of the foster family’s he demands to go back home. The foster family has found he responds better when the foster father drops him off in the morning.

X is very distressed when the foster mother has to leave if she is the one to drop him off, but accepts when it is the foster father.” [3] The visits with the mother [ 31 ] X had visits with his mother once every two weeks for one hour.

One visit out of two also included his sister. [ 32 ] This frequency was established at first to allow X to fully settle into his foster home and was then maintained when X was very reactive after the visits. [ 33 ] This is how the Director explains the evolution of the child and mother during these visits: “For the first few visits, X was very excited to see his sister and wanted to help the foster mother prepare a snack and games for himself and Y. He did not mention his mother in his excitement for the visits.

After about 2 months, X was no longer excited to prepare for the visits and did not react to the announcement of the visits at all. Since the beginning of the visits, the foster family has reported that X regresses following the visits with mom. At first, it was just a few days; where he was more energetic and more oppositional to rules, now it takes X 1 full week to get back to “normal”.

After the visits with mom, X is no longer “clean” and has several accidents of peeing himself every day, he goes back to hurting himself and others when frustrated, and breaks and defies rules he is aware of and respects the following week. He becomes less independent; as he refuses to put his clothes on by himself and needs a lot more supervision to do tasks, such as brushing his teeth. During these weeks, X is also less inclined in using his words, tends to cry and grunt more, and is generally less affectionate, (will not ask for hugs or say “I love you”).

On one occasion, where X missed a visit for being sick, he

maintained stable behaviour for 3 full weeks. During the visits, X’s behaviour is different than his behaviour with the foster family. During the visits, X talks little, in 1-3 word sentences, he sometimes slaps his mother’s hands away from his toys, he pees his pants instead of asking to go to the bathroom, and his words and actions are not always coherent (says yes to a snack but continues playing or says no to playing with cars then goes pick them up anyway).

At the foster home, X is capable of opening his snacks and dressing himself, during the visits, the mother rarely gives him the opportunity to do these things by himself and instead does it for him. When X demands to do something himself, the mother deplores that he is “growing too fast”. We have also had to intervene during the visits, a few times, as the mother’s interventions towards X were not appropriate. One such example is when X peed his pants, twice in one visit, the mother got angry and scolded X for doing so instead of just asking to go to the bathroom.

Since August 2022, the mother’s objectives are to be present and prepared for the visits and to work on stabilizing her living situation. The mother has been present to all planned visits, she is usually on time, and always remembers to confirm her presence for the visits. The mother is however rarely fully prepared for the visits. Even after several reminders, the mother only started bringing snacks (granola bar, yogurt and/or chocolate bar) to the visits around the end of October 2022.

Aside from one time - when the mother brought a few figurines and teddy bears - she has never brought toys or games to the visits. The mother enforces very few rules; she generally lets X decide what to do and ends up cleaning up after him when it’s time to leave. The mother sometimes tries to use the foster family’s words such as “doux” and “geste plume”, but X rarely listens, and when he does it is for a short time. In addition to seeing his mother during the visits X also sees his maternal grand [1] mother and uncle after every visit.

The mother’s family are the ones that bring her to every visit so X goes to say goodbye to them after every visit. X goes to them after every visit and plays in their car beeping the horn. Leaving afterwards can be difficult for X, he does not want to leave the car and when he does he acts oppositional, saying no, running away and refusing to be picked up.

He calms down as soon as he gets to his foster father and goes into his car without protest.” [4] [ 34 ] At the hearing, the delegate stated that contact had been reduces to once a month because of the negative impact on the child. [ 35 ] The mother did bring snacks and toys at these visits. But the reactions remain the same. [ 36 ] The child becomes so insecure that he wakes up at night to check if the foster parents are still in their beds. [ 37 ] The Director also concludes that despite the advice given, the mother’s evolution is minimal.

During the last visit, it was the first time the supervisor saw the mother intervene to correctly address the child’s behaviour. [ 38 ] The mother intends to follow another program with Better together. But this is only available if it is foreseeable that the child will return to her parents care within the next six months. This is not the case here. [ 39 ] Also, although the mother improves somewhat, it seems that it is the past trauma due to unanswered needs that is rehashed when the child sees his mother. [ 40 ] X has been observed sometimes rejecting his mother, pushing, and hitting her.

He has outbursts that the mother says she has never seen before.

The mother’s evolution and position [ 41 ] The mother has herself a heavy past and was under the protection of the Director as a child. [ 42 ] She also suffered form injuries from a car cash when she went to live with her parents in the winter of 2022. [ 43 ] In October 2022, she started a new job and she was previously on welfare. [ 44 ] She claims that the contacts with X are going very well, which is in contradiction with the observations and questions as to the mother’s comprehension of how to educate the child. [ 45 ] She even claims not remembering that someone told her that there was something wrong during the visits. [ 46 ] She also mentions that contacts with her daughter are allowed, and she does not see why it should be interrupted for her son.

Decision [ 47 ] The court finds that the child's condition and behavior when he arrived at the foster home speak for themselves that he has been subjected to severe neglect, both on the educational and physical level. [ 48 ] This, and the evidence prior to the child’s placement allow the Court to declare the security and development of the child on these grounds. [ 49 ] The mother showed that it was very difficult for her to mobilize herself in due time to answer her child’s needs. [ 50 ] We have to take this mother with her background.

She had a very difficult childhood, and it is difficult for her to give what she did not receive. The Court believes that this factor contributes to the slowness of her mobilization. [ 51 ] She also shows a certain immaturity, for example, when she does not get along with her assigned external educator, instead of asking for another person or another resource to help her, she chooses to flee and not to show up for meetings. [ 52 ] Could the Director have done more? Refer to other services? Maybe, but even when the mother receives advice, she is slow to

apply it. Something as simple as bringing snacks took her two months to comply and more to do on a regular basis. [ 53 ] We start from afar with this mother and time is not neutral for the child who bears the damage of neglect and who must make up for lost time, when he was not sufficiently invested [ 54 ] Why is there such a difference between X’s sister Y who develops well despite being also exposed to neglect?

One can make many assumptions, but there is certainly one undisputable fact and that is that Y has a father who has been present at various levels in her life, and who has certainly offered some response to her needs. [ 55 ] X has spent more time with his mother, so he is more affected by his mother’s unavailability at a time when he had a need that was not met. Neglect can create trauma through the lack of response to needs. [ 56 ] Regarding contacts, these are the questions that the court must answer: Are they nourishing for the child? Do they meet his needs? Are they beneficial to him?

Are they in the child’s best interests? [ 57 ] The answer to these questions is negative. [ 58 ] X tells us by his reactions that he is unable to receive what his mother can give him within the framework of the contacts. [ 59 ] The evidence shows that the visits interfere with the child’s development. [ 60 ] Thus, the court must suspend the contacts in the child’s best interest. [ 61 ] The Director will have to support the mother and make her understand the differences between her children and the reasons why contact is allowed with one, and not the other. [ 62 ] In addition, it will also be necessary for contacts between the brother and the sister to be actualized, the court will recommend to encourage contacts between the siblings.

FOR ALL THESE MOTIVES THE COURT: GRANTS the present application; DECLARES that the security and development of the youth X are still in danger on the grounds of physical neglect and educational neglect ; ENTRUSTS the child to a foster family chosen by the institution operating a children and youth protection center ; SUSPENDS all contacts, direct or indirect, between the child and his mother ; ORDERS that the child receive all health care and health services required by his situation, namely medical and dental follow-ups ; ORDERS that the mother report periodically to the Director of Youth Protection on the measures she applies on her own regard or in her child’s regard to put an end to the situation in which the security or development of the child is in danger; ORDERS that the mother take an active

part in the application of any of the measures ordered, namely that she collaborates to the elaboration if the intervention plan and the social follow-up; TAKE NOTICE of the Director of Youth Protection’s intention to clarify a permanent life project during this measure, excluding any return into the mother’s care; RECOMMANDS that the contacts between X and his half-sister, Y be favored, as these contacts answer both children’s needs; ORDERS that a person working for an institution or body provides aid, counseling or assistance to the child and the child’s family for a period of one (1) year; ENTRUSTS the situation of the youth X to the Director of Youth Protection to see that the measures are carried out. __________________________________ PASCALE BERARDINO, J.C.Q.

M e Nicolas Bastien Counsel for the DYP M e Audrey Roch Genest

Counsel for the youth M e Véronique Dupont Counsel for the mother Date of the hearing : January 20, 2023 Last Exhibits deposed: D-1 to D-3