2012 NLCA 60, 2012 NLCA 60

Date: 20120907 Docket: 12/58 Citation: K.C. v. Newfoundland and Labrador (Child, Youth and Family Services) , 2012 NLCA 60 PUBLICATION BAN: THERE IS A PUBLICATION BAN ON THE NAMES OF ALL CHILDREN REFERRED TO HEREIN AS WELL AS THE NAMES OF ANY PERSON WHO COULD IDENTIFY THE SAID CHILDREN. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : K.C. and E.H. INTENDED APPELLANTS AND : MANAGER OF CHILD, YOUTH AND FAMILY SERVICES (ZONE

H) INTENDED RESPONDENT Coram: Welsh, Harrington and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, Trial Division (General), Corner Brook Application Heard: September 7, 2012 Decision Rendered: September 7, 2012 (Orally) Memorandum of Disposition Filed: September 12, 2012 Memorandum of Disposition by Welsh J.A. Counsel for K.C.: Paul Kennedy

Counsel for E.H.: Sandi MacKinnon Counsel for the Respondent: Krista M. Atkins MEMORANDUM OF DISPOSITION Welsh J.A.: [ 1 ] K.C. and E.H. are the parents of four children, girls born […], 2002 and […], 2008, and boys born […], 2005 and […], 2006. While E.H. is not the biological father of the eldest child, he acted as her parent. On June 10, 2010, the children were taken into care due to concerns that they may be children in need of protection. On July 9, 2010, pursuant to the Children and Youth Care and Protection Act , SNL 2010, c.

C-12.2, an order for temporary custody was granted to the Manager of Child, Youth and Family Services, Zone H (the “Manager”). A second temporary custody order was granted on November 23, 2010. An application for a continuous custody order was filed on February 23, 2011. The hearing of that application was set to commence on May 8, 2012. On April 5, 2012, counsel for E.H. applied to postpone the hearing in order to allow time for what counsel referred to as “an independent assessment” of the children.

In the result, the hearing was re-scheduled to commence on September 17, 2012. [ 2 ] During the approximately two years that the children have been in the care of the Manager, the girls have lived in one foster home and the boys in another. Recently, the elder boy was moved from the foster home for reasons of special needs of the two boys. All the children have exhibited symptoms of severe neglect and abuse.

Since they were taken into care, counseling has been provided to the children together with support for the foster families. [ 3 ] When the application was made in April 2012 for an “independent assessment” of the children, Child, Youth and Family Services agreed to this step subject to any concerns that might arise regarding the children. An assessment was commenced by Dr. W. Rideout. However, the children exhibited signs of regressive behaviour sufficiently serious to cause Child, Youth and Family Services to withdraw their agreement to the assessment by Dr.

Rideout. [ 4 ] On June 21, 2012, counsel for the parents applied to the Court for an order for continuation of the assessment by Dr. Rideout. That application, which was not heard until August 16, 2012, was dismissed. On August 27, 2012, counsel for the parents sought leave to appeal that decision. At the hearing in this Court on September 7, 2012, the application for leave to appeal was dismissed.

Following are the reasons for that decision. [ 5 ] Because the application brought by the parents’ counsel related to an interlocutory decision, leave to appeal was necessary (rule 57.02 of the Rules of the Supreme Court, 1986 ). Subsection (4) of the rule specifies indicia to be considered in determining whether leave should be granted. At the hearing, counsel relied primarily on paragraph (b), “the Court doubts the correctness of the order in question”. Reference was also made to paragraphs (

d) and (

e) which relate, respectively, to whether, given the nature of the appeal, judgment after the trial is completed would be of no practical effect, and whether “the interests of justice require that leave be granted”. In this case, the Court was satisfied that no ground for an appeal had been demonstrated. [ 6 ] At the hearing in the Trial Division, the applications judge relied on affidavits provided by Dr. Rideout and Ashley Chafe, a social worker with Child, Youth and Family Services. It is clear from the record that the professionals involved in the care of the children concluded that Dr.

Rideout’s assessment should be discontinued based on concerns about emotional harm to the children. Attached to Ms. Chafe’s affidavit were reports submitted by Dr. D. Doherty, Dr. C. Reid and Ms. E. Humber, a social worker with Child, Youth and Family Services who had been counseling the children. Ms. Humber’s report states: Since I began working with these children, the Child, Youth and Family Services agency has also obtained several independent clinical assessments. Reports from other professionals have complemented ongoing psychotherapy with the children. These assessments include: - Paediatric (Dr.

Susan Russell) [regarding the elder boy]. - Consultation for all of the children with a multi-disciplinary Janeway team. - Paediatric (Dr. Dolores Doherty), who also has had greater involvement regarding clinical direction for all of the children, and the therapeutic team. - Developmental assessment and follow-up for [the younger boy], by the Developmental Psychology department at Western Health. - Psychiatric for [the elder boy] (Dr. Chantelle Reid, Janeway). - Ongoing clinical consultation to the treatment team and support to Foster Families by Dr.

Donna MacLennon, Psychologist. - [The younger boy] has had a lengthy period of speech therapy. - The children have also been interviewed by police. Adjusting to change, including to new people, is difficult for children who have suffered trauma. Their growing ability to trust others indicates the significant progress they have made since placement in Foster Care. (Affidavits attesting to substantive facts were improperly submitted by counsel for K.C., S. MacKinnon and J. Smart.

While rules regarding hearsay evidence are relaxed for some purposes in child protection matters, it is inappropriate for counsel for a party to put themselves in the position of being witnesses and, therefore, potentially subject to cross-examination.) [ 7 ] Counsel for the parents did not apply, and did not take any preparatory steps, to have Ms. Chafe, or any authors of the reports attached to her affidavit, cross-examined. The applications judge gave a short oral decision in which he focused on his assessment of the

best interests of the children. It is clear that, in making his decision on this basis, he was well aware of the parents’ concerns and their preference for an additional assessment of the children. [ 8 ] In this Court, counsel for the parents submitted that the applications judge erred by relying heavily on the unsworn evidence of Dr. D. Doherty. Had counsel wished to challenge Dr. Doherty’s report, or seek clarification of its contents, it was open to counsel to arrange for Dr. Doherty to testify.

Since no such step was taken, it was open to Child, Youth and Family Services and the applications judge to assume that the report could be considered as entered. While the judge referred to Dr. Doherty’s report, he could not be said to have relied on it inappropriately or to the exclusion of other evidence. [ 9 ] Further, there is no apparent conflict between Dr. Rideout’s affidavit and the reports attached to Ms. Chafe’s affidavit insofar as Dr. Rideout reported that he had not encountered difficulties or concerns in his sessions with the eldest child.

While concerns as to the children’s emotional health may not have been apparent during Dr. Rideout’s sessions, the foster parents, in fact, reported significant regressive behaviour. [ 10 ] Counsel for the parents also submitted that they would be at a disadvantage at the hearing of the Manager’s application for continuous custody if they did not have Dr. Rideout’s “independent assessment”. However, this submission ignores the fact that the testimony of the professionals on whom Child, Youth and Family Services relies at trial may be challenged, tested and clarified by means of cross-examination.

Should it become apparent during the trial that further assessment of the children is necessary or appropriate, accommodation could be made at the trial judge’s direction, a decision being made with the benefit of an evidentiary context. [ 11 ] The parents’ application for leave to appeal also faces difficulty from a procedural perspective. Counsel conceded that it would not be open to this Court, based on the record, to order a continuation of Dr. Rideout’s assessment. The most that could be ordered would be a re-hearing of the application.

As noted above, in the circumstances, no basis for such an order was demonstrated. [ 12 ] Finally, a comment regarding delay in proceedings of this nature is appropriate. Where there is an application for continuous custody, particularly in respect of young children, every effort should be made to avoid unnecessary delay. Applications should be brought on, and considered by the courts, expeditiously. Observations recently made by this Court in the context of an appeal would apply generally to court proceedings involving children ( Director of Child, Youth and Family Services v.

J.F. et al. , 2011 NLCA 70 , 313 Nfld. & P.E.I.R. 112, at paragraphs 15 and 16 ). [ 13 ] The application for leave to appeal having been dismissed at the hearing, the trial set to commence on September 17, 2012 should proceed as scheduled. ______________________________ B. G. Welsh J.A.