D. H. v. F. H., 2013 NLCA 49

Date: 201307 19 Docket: 13/20 Citation: D.H. v. Newfoundland and Labrador (Child, Youth and Family Services) 2013 NLCA 49 PUBLICATION BAN: There is a Publication Ban on the names and any other identifying information of the children referred to herein, as well as the names of their biological parents, relatives and foster families pursuant to

section 52 of the Children and Youth Care and Protection Act, SNL 2010, c. C-122. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: D. H. and F. H. APPELLANTS AND: MANAGER OF CHILD, YOUTH AND FAMILY SERVICES, ZONE A RESPONDENT Coram: Barry, White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Family Division (F) 2011 02F 0237 Appeal Heard: June 19, 2013

Oral Judgment Rendered: June 19, 2013 Written Reasons for Oral Decision Filed: July 19, 2013 Reasons for Oral Decision by White J.A. Concurred in by Barry and Hoegg JJ.A. Counsel for the Appellants: William S. Kennedy Counsel for the Respondent: Krista M. Atkins REASONS FOR ORAL DECISION White J.A.: [1] This is an appeal of an order of a judge of the Trial Division (Family) granting continuous custody to the Manager of Child,Youth and Family Services (the Manager) of a child, R. H. (born […], 2009).

The Appellants, D.H. and F.H., are the parents of the boy. [2] The continuous custody hearing took place before the trial judge over a period of three days. The Manager, D.H., and F.H.were each represented by separate counsel. On appeal, D.H. and F.H. were represented by one counsel. [3] At the conclusion of the appeal, the panel dismissed the appeal and indicated that written reasons would follow. These arethose reasons. [4] In her factum, counsel for the Manager set out the standard of review to be applied by this Court. Counsel for D. H. and F.H.agreed. [5] As stated by Barry J.A. in C.M. v.

S.M., 2012 NLCA 59 at para. 33: …Where the trial decision is of a fact-based and discretionary nature, such as one involving custody or support, involving the balancingof various factors with an appreciation of the particular facts of the case, appeal courts will defer to trial judges and not intervene withoutmaterial error, a serious misapprehension of the evidence, or an error of law. [6] In B.(J.), Re (1998), (NL CA), 166 Nfld. & P.E.I.R. 1 (NLCA) at para. 141 it is also noted that “the roleof an appellate court is not to retry the case in the sense of making its own findings of fact and substituting its opinion for that of the trialjudge…” [7] The factual background is not in significant dispute.

R.H. was first taken into care by CYFS in March of 2011 following anincident where he was dropped by a person D.H. had permitted to care for him. He was subsequently returned to the care of D.H. andF.H. after they agreed to a supervision order involving their participation in certain support programs. They also agreed to unannouncedhome visitation by CYFS and by a caregiver, and agreed to undergo drug and alcohol screening. [8] R.H. was taken into care again in August of 2011, after an incident where D.H. returned to her home while intoxicated. F.H.barred her access to the home but she eventually entered.

An older son, fearing an escalation of the dispute between his parents, calledthe police. R.H. was placed in the care of F.H.’s niece following this incident. [9] D.H. and F.H. had access to R.H. under the supervision of a social worker from August 2011 until December 2011. Theevidence indicates that the social worker believed that both D.H. and F.H. continued to have alcohol abuse issues. [10] D.H. removed herself from the family home in December 2011 following altercations between her and F.H.

As a result of theseincidents their older son (then 14 years old) was also taken into care by CYFS. [11] There was no visitation of R.H. by D.H. in the early part of 2012. There were limited visits between F.H. and R.H. In April of2012, CYFS applied for a continuous custody order. [12] As stated in their factum, from approximately April 2012 until the date of hearing in February of 2013, access by D.H. and F.H.to R.H. was “sporadic to the point of non-existent”. This situation arose because F.H. considered visitation too great an emotional strainwhere the prospect existed of losing contact with R.H. permanently.

D.H. did have several visits. These ceased following herincarceration for a period of 3 months. Since her release from custody, she has exercised no access to R.H. and has continued to usealcohol. Also, F.H. has been observed to be using alcohol in excessive amounts. [13] A short time prior to the hearing before the trial judge, D.H. attended an alcohol treatment program with some limited success. She took steps to separate from F.H. and set out to find alternative accommodations.

F.H. agreed with the separation and indicated thathe was prepared to vacate the family home so that D.H. could have a home for herself and R.H. [14] It was in light of this background, fully explored in the evidence he heard, that the trial judge made his February 2013 decisionto grant the continuous custody order which is the subject of this appeal. [15] At the hearing of the appeal both counsel provided the Court with updated information relative to the nearly 4 months whichhad passed since the trial judge’s order.

[16] At the time of the hearing in this Court: - D.H. and F.H. continued to live together at the family home. - F.H.’s plan to build a home in St. Mary’s Bay (and to reside there with the couple’s older son) was incomplete. - D.H. was serving another period of incarceration relating to breaches of conditions involving alcohol. [17] Before this Court, D.H. and F.H. sought a further 3 month temporary custody order to replace the continuous custody order ofthe trial judge. [18] In fact, more than 3 months have passed since the trial judge’s order was made. There has been no real progress in thecircumstances of D.

H. and F.H., and no realistic plan by his parents for a secure environment for R.H. [19] More than a year has passed since there has been access of any kind between F.H. and R.H. and almost 2 years have passedsince D.H. has seen R.H. [20] Counsel for the Manager advised the Court that there is a realistic plan for R.H.’s adoption and that the Manager wishes toproceed with the plan. [21] The trial judge, while giving an oral decision, dealt with all the appropriate considerations. He was clearly sympathetic to thewishes of D.H. and F.H. but, as he is mandated to do, he put the best interests of the child first.

He stated, “We are dealing with a veryyoung child who is helpless, only looking for love, security, and what is he really getting? Nothing less than instability.” [22] The trial judge then properly considered the overall family circumstances and the best interests of R.H.: But the question for me has been as I’ve sat here the last couple of days is, okay, what about the risk? Is it too risky to say here thatwe’re going to reintroduce at least Mom into the life of the child, and then what happens if Mom has a slip? And what happens then asregards to [R.H.]?

The idea of a three month plan, even the idea of say, taking a month and seeing if sobriety is maintained and thenlooking at introducing access, I’ve thought about that. But I really have concluded that that is just too risky for the child and that is notin the child’s best interest at this time. If I was to see this plan work to me it’s much longer term than three months. It seems to be thatwe are looking at [at] least six months to ensure that Mom is where she needs to be in order to parent this child. That is a significantperiod of time.

It is unfortunate that and as you just said in the letter that I just read Mrs. [H], it is unfortunate that you didn’t do whatyou’re doing now a year ago but you have your reasons for that. But that’s the reality of the situation and I have to decide this casebased upon, not on your needs, but the needs of what is in the best interest of the child. This is a two stage process. First thing is, is thechild in need of protective intervention? It’s really been no contest on that.

If were talking about even a three month or one month or atwo month Order, whatever, clearly the child is not ready to go home to either parent. So obviously there are issues that make the childbe a child in need of protective intervention. The real issue in this case is what the appropriate Order is. A Continuous Order is a veryserious Order notwithstanding what our Supreme Court of Canada has said in the [F.H. v.

MacDougal, 2008 SCC 53, [2008] 3 S.C.R. 41]case about the fact that the onus of proof in civil cases is always a single onus proof, proof on a preponderance of the evidence and thatthere is only a single civil standard of proof. I still think that in child protection matters one has to look at all of the circumstances andlook at the seriousness of those circumstances in deciding how in fact to assess the aspect of preponderance of the evidence in the onusof proof.

I have very carefully considered this and I believe that, at this stage, it’s just too uncertain for me to make a decision that wouldbasically delay the process beginning for adoption for this child. I think that needs to happen and I am going to be making a ContinuousOrder. [23] In making his order the trial judge had the benefit of the evidence of D.H. and F.H. and of the witnesses from CYFS. A reviewof the transcript fully supports his conclusion.

It is also clear that the trial judge found his decision to place R.H. in continuous custody(effectively cutting off any relationship with his parents) emotionally challenging. At the appeal court level review of such a decisionalso gives rise to conflicting emotions. Our society places a very high value on the family unit. A decision to permit the state to severthe family is not taken lightly. [24] The Children and Youth Care and Protection Act, SNL 2010, c.

C-12.2 provides in section 9(1), that the best interests of thechild should be “overriding and paramount” and that determination of those best interests should include all relevant factors including“the child or youth’s relationship with family…” (section 9(2)(c)). [25] Counsel for D.H. and F.H. argued that the drastic step of severing the parent-child relationship can only be taken when there isnot any other clear option available to the parties.

Further, he suggested that there was some lack of follow-up by the Manager in effortsto keep the family together. [26] The trial judge did consider these matters but concluded that the evidence before him of a long history of turmoil in the familyunit, alcoholism, drug abuse and spousal abuse combined with the lengthy period of no contact between R.H. and either of his parentsmade it essential to the best interests of this child to follow the plan of the Manager to seek adoption while the child’s age permittedplacement and development in an emotionally secure environment. [27] As stated in Catholic Children’s Aid Society of Metropolitan Toronto v.

M.(C.), (SCC), [1994] 2 S.C.R. 165 atpage 191: [T]he value of maintaining a family unit intact is evaluated in contemplation of what is best for the child, rather than for the parent. [28] The circumstances of the parents have not changed (as noted above) in the nearly 4 months since the date of the trial judge’sorder. They had no viable plan for R.H. then and have none now. [29] There is no error in the decision of the trial judge that calls for the intervention of this Court. The trial judge heard the

evidence, considered the applicable law and concluded that neither parent could now care for the child nor would either be likely to be able to do so in the future. He made no error in making an order for continuous custody and in accepting the plan of the Manager. [ 30 ] There being no basis for this Court to disturb the order of the trial judge, the appeal was dismissed, with no order as to costs. _________________________ C.W. White J.A. I Concur: ​​​​​​​​​​​​​​​ _________________________ L.D. Barry J.A. I Concur: _________________________ L. R. Hoegg J.A.