2011 NLCA 61, 2011 NLCA 61

Date: 20110921 Docket: 10/116 Citation: L.P. v. Director of Child, Youth and Family Services et al. , 2011 NLCA 61 PUBLICATION BAN : THERE IS A PUBLICATION BAN ON THE NAMES AND PICTURES OF ALL CHILDREN REFERRED TO HEREIN AS WELL AS THE NAMES OF ANY PERSON WHO COULD IDENTIFY THE SAID CHILDREN, PURSUANT TO

SECTION 58 OF THE FAMILY LAW ACT, RSNL 1990, c. F-2 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : L. P. APPELLANT AND : DIRECTOR OF CHILD, YOUTH AND FAMILY SERVICES, Eastern Regional Health Authority FIRST RESPONDENT AND : M. V. SECOND RESPONDENT Coram: Welsh, White and Hoegg, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Unified Family Court 200702U0792 Appeal Heard: September 20, 2011 Judgment Rendered: September 21, 2011 Reasons for Judgment by Welsh, J.A.

Concurred in by White and Hoegg, JJ.A. Counsel for the Appellant: Marilyn A. Pendergast Counsel for the First Respondent: Cynthia D. Janes Counsel for the Second Respondent: No One Appearing Welsh, J.A.: [ 1 ] On June 2, 2010, a judge of the Unified Family Court ordered that L.P.’s youngest children, twins, 16 months of age at the time, be placed in the continuous custody of the Director of Child, Youth and Family Services. In his reasons for decision, he directed that the children be placed for adoption without delay.

At the same time the judge ordered that L.P.’s three eldest children be returned to her care subject to supervision by the Department of Child, Youth and Family Services. [ 2 ] Regarding the twins, the judge explained: [104] I am satisfied that [L.P.] is not capable of parenting the twins in this stage of her prognosis of borderline personality disorder. Because of the timeline relating to infant adoption, I am not willing to wait any further period of time, as the earlier the twins are able to be placed for adoption, the better it will be for them.

The order in relation to [the twins] is made pursuant to s. 34(2)(d) [of the Child, Youth and Family Services Act , SNL 1998, c. C-12.1]. [105] The Department should immediately look for adoptive parents because the longer the twins are in an [alternate living arrangement] situation, the greater the damage to them[,] and the less chance of permanent psychological problems occurring. The twins need immediate bonding. [106] The Director will have to use its discretion in any future visits by [L.P.] to the twins prior to adoption.

Once the twins are adopted, [L.P.] has to be made aware that future contact will be prohibited in the best interests of the twins. [L.P.] has to accept this without question. … [ 3 ] L.P. had care of the twins for a short period of time after their birth, from about April to September 2009. Counsel advised the Court that L.P. had one final visit with the twins after the judge’s decision was released, but since then has not had any contact with them. Because this appeal was not prosecuted expeditiously, as it should have been, the twins are now two and one-half years of age.

In the best interests of the children, further delay must not be permitted. [ 4 ] The judge carefully reviewed the evidence regarding the circumstances of L.P. and the five children. He determined that, while L.P. was unable to care for all five children, it had not been established that she was unable to care for the three eldest provided she had supervision and assistance from Child, Youth and Family Services.

Accordingly, those children were placed in L.P.’s care under supervision, a situation which Counsel advised continues to the present time. [ 5 ] L.P.’s first ground of appeal is that the judge erred by “placing significant weight on Dr. Gary Jeffery’s second report, despite an earlier finding that this report was tainted”. The judge’s comments regarding Dr. Jeffery’s report must be considered in context. After outlining some difficulties with the process, he explained: [94] In my analysis of the evidence presented and in relation to Dr.

Jeffery’s report referred to above, I note that a great deal of the material reviewed is from the file history. The position of the Department was made known to Dr. Jeffery before he completed his report. There was considerable influence involved with the Department presenting its views of the situation to Dr. Jeffery to the point that it may have had some impact on the opinion he was to make, supposedly independent of the views of the Director.

If the Director intends to call expert opinion on a parenting ability, the director should have more of an arms-length approach to the expert who is reviewing the situation. An expert opinion is supposed to be independent of the parties to the litigation. [95] It should also be noted that Dr. Jeffery was unable to observe [L.P.] in her own home, dealing with her children. I have made comments earlier about the artificial environment such as a day care center or observation room in a supervised setting and that this does not lend itself well to the normalization of a functioning family.

However, that being said, I believe Dr. Jeffery tried to be as objective as he could be dealing with the environment he had to deal with. I note that his conclusions were based on the history of the file as well as his own observations. I am unable to give the full weight that I would give to an expert opinion which was not, in some ways, tainted or directed by the Director’s inadvertent intervention in sitting down with Dr. Jeffery and pointing out various problems with [L.P.] as was done on pages 14 and 15 under the heading Case Conference.

There were some 15 different observations made by [a social worker] to Dr. Jeffery. [The same social worker], at one point, had asked Mr. Jeffery if he had formed his opinion. [ 6 ] Clearly, the judge identified some ways in which the preparation of reports may be improved, with particular attention to ensuring an objective assessment. He pointed out circumstances, such as inappropriate involvement of Child, Youth and Family Services workers, that may raise questions resulting in less weight being given to a report.

In this case, the judge was attuned to issues that he took into account when he decided, not that the report was of no value, but that it would not be given the “full weight” ordinarily accorded an expert opinion. He clearly relied on other evidence which was consistent with the positions expressed in Dr. Jeffery’s report. For example, the judge commented: [96] Along with Dr. Jeffery’s report and his observations, in this case there was a great deal of evidence led on the observations of

day care workers and social workers who observed [L.P.] with the children in the home. These observations, overall, had more of an impact on this court than any observations made in a few hours at the Bell Center Building. The conclusions I have reached as to whether the children are in need of protection is the result of a review of the evidence given in this hearing by the social workers with [L.P.] and the observations of the day care workers and the reports of Serenity Home Care. [97] I was particularly struck by the candid evidence of [L.P.’s] social workers who had been dealing with her in 2008 and 2009.

I believe they were honest and straightforward in their assessment of [L.P.]. [Four social workers] filed affidavits which became part of the record. [98] All seem to have a reasonable rapport with [L.P.]. There was no hiding their concerns that [L.P.], after the birth of the twins, was overwhelmed and even with help and her love for her children, she was unable to cope with 5 children. … [ 7 ] Further, the judge did not, as submitted by L.P., ignore the evidence of L.P.’s psychiatrist.

Rather, he noted that, while L.P. “has come a very long way since her adolescent years”, she still has “a long way to go on the road to treatment and counseling” (paragraph 99). He recognized L.P.’s “unquestionable” love for her children (paragraph 99). [ 8 ] Having considered the evidence, the judge correctly assessed the Director’s application by applying the legislation. The first principle set out in

section 7 of the Child, Youth and Family Services Act , SNL 1998, c. C-12.1, provides: (

a) the overriding and paramount consideration in any decision made under this Act shall be the best interests of the child; … While he recognized the value of the family unit and L.P.’s love for her children, the judge made his decision on his analysis of the best interests of the twins. The judge was satisfied that appropriate services had been made available to L.P., but she was, for mental health reasons, unable to take full advantage of them. [ 9 ] Dr. Jeffrey, who has provided the Court with assessments for a large number of child protection cases, described the approach he applies in reaching his opinion.

In addition to filing a report, he gave evidence at the hearing. He testified that he views his role as a disinterested assessor; that is, he is not a representative of Child, Youth and Family Services or the parent. He testified that his focus is what is in the best interests of the child in the circumstances, and particularly: In other words having gotten a sense of what the care giver actually or potentially might be able to do then asking the question is that level of care adequate to address the developmental needs obviously very age dependant of the child or children involved. [ 10 ] In

summary, L.P. has not demonstrated that the trial judge erred insofar as he relied on Dr. Jeffery’s report. The judge’s determination resulted from a consideration, not just of Dr. Jeffery’s report, but of his testimony supported by the evidence of the day care and social workers. [ 11 ] L.P.’s second ground of appeal is that the judge failed to appreciate the whole of the evidence in concluding that L.P.’s parenting was “so deficient” as to necessitate removing the twins permanently from her care. There were many and ample examples of significant, ongoing parenting deficiencies before the judge.

An important factor considered by the judge, particularly regarding L.P.’s ability to care for the twins, was her continuing refusal or inability to accept supervision, direction and assistance from Child, Youth and Family Services workers. This was particularly problematic given that the twins were just sixteen months old and the three other children, who were ordered to be returned to L.P.’s care, were young, aged approximately nine years and ten months, seven years and ten months and two years and ten months.

In addition, L.P.’s actions made obtaining workers difficult due to concerns that she would make comments about them on the internet or during calls to openline radio shows. [ 12 ] It cannot be said that the judge failed to consider the evidence as a whole. Indeed, a reading of his judgment leads to the conclusion that he properly applied the principles set out in the Act and that, in doing so, he assessed and considered the totality of the evidence before him. His clear focus was, as required, the best interests of the twins. [ 13 ] In the result, the appeal is dismissed.

I would reiterate the judge’s direction that the Director should proceed with the adoption of the twins without delay. ______________________________ B. G. Welsh, J.A. I Concur: ___________________________ C. W. White, J.A. I Concur: ___________________________ L. R. Hoegg, J.A.