Nova Scotia (Community Services) v. L.H., 2010 NSSC 452

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Nova Scotia (Community Services) v. L.H., 2010 NSSC 452 Date: 20101214 Docket: SPFACFSA -065679, SFPACFSA - 068202 Registry: Port Hawkesbury Between: Minister of Community Services Applicant v. L..H., W.H, and W.S. Respondents Editorial Notice Identifying information has been removed from this electronic version of the judgment. Restriction on publication: Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication.

Section 94(1) provides: "No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or relative of the child." Judge: The Honourable Justice Moira C. Legere Sers Heard: November 9, 10, and 12, 2010, in Port Hawkesbury, Nova Scotia Counsel: Lindsay McDonald, for the Minister of Community Services; Lisa Bevin, for the respondent L.H.; Jennifer Cox, for the respondent W.S.

By the Court: [ 1 ] There are two protection applications before the Court. The first application began on the 7 th of August 2009, and concerns two children: D., born August *, 2007, and N., November * , 2008. W.S. is the biological father of D. [ 2 ] A second protection application began on December 18, 2009, concerning the youngest child Q. (born November *, 2009). W.H ., the biological father of N. and the youngest child Q. [ 3 ] Both protection applications have been heard together. W.H. - The father of N. and Q. - (d.o.b.

November * 1, 1989) [ 4 ] W.H. disengaged from services, from the applicant agency, from the children and from his counsel. He did not attend the Court proceedings. [ 5 ] Individual therapy was offered to him. He did not attend. He has not put a plan of care before the Court nor contested the agency’s plan of care. [ 6 ] W.H. was 17 when he first met and began dating the mother who was 25 at the time.

He is described favourably by his relatives and the mother. [ 7 ] The commentary made by the access supervisors is consistently positive and confirms his ability to care for the children appropriately in that supervised setting. Indeed, the description of him in supervised access settings illustrates a caring, appropriate parental figure. [ 8 ] He was initially approved to supervise the mother and was later approved to care for two of the children while the mother was hospitalized. [ 9 ] After her hospitalization, his circumstances deteriorated until the agency apprehended the children from his care.

He appeared overwhelmed by the responsibility. [ 10 ] The assessor initially articulated few concerns about his ability to function as a parent. [ 11 ] His functioning as a primary parent deteriorated when he took on the responsibility of the two children D. and N., while the mother (his then current partner) was in Halifax hospitalized prior to the birth of the third child.

He was unable to address on his own the needs of the children. [ 12 ] A family support worker with the district office was contracted in October 2009, to provide support services to W.H . with a program of parent education. [ 13 ] Between November 2009, and July 2010, she attempted to provide this service to W.H. He attended six sessions, failed to show up for four and cancelled four. In addition, the service provider cancelled one when W.H. failed to confirm he would be in attendance. [ 14 ] Due to lack of engagement, that service was cancelled.

[ 15 ] He terminated his relationship with the mother while she remained in Halifax and gradually his focus seemed to shift to a new relationship. [ 16 ] He began to cancel visits and ultimately withdrew from the proceedings. He offers no plan for the children. Plans of Care [ 17 ] There are three plans put forward for consideration: 1. The Minister’s plan (permanent care with an intent to place all three children for adoption); 2.

W.S.’s plan (to have D. placed in his care with him living with his parents), or to delay the proceeding and conduct more studies or impose mediation to give him more time to prove he can parent; and 3. The mother’s plan (to have all three children placed with her in her current residence with her parents.) In her submission, she proposes that her parents be granted joint custody with her. [ 18 ] Her parents did not make an application to be custodial parents and did not suggest in their evidence that they intended to be joint custodial parents.

They said they were there to support their daughter as custodial parent. [ 19 ] The mother allows that should the Court believe continued supervision is necessary, this supervision could continue until January 18, 2011, for the two oldest and April 19, 2011, for the youngest. At that time, the Court could not legally impose any conditions on the parent should return to the parent be warranted. [ 20 ] In each of the parent’s plans, they propose themselves as the primary caretakers.

They do not propose that their parents be the primary caregivers or primary custodial parents. [ 21 ] Their parents have not made application for placement in their sole care. Previous children [ 22 ] The mother has three older children who currently reside with A.F. He is not a party to these proceedings. These children have periodic access with their mother. [ 23 ] The mother and her family describe the difficulty they have maintaining consistent contact with the children in A.F.’s custody due to A.F’s conduct.

He is a familiar referral source about the mother’s activities to child protection. [ 24 ] I am not in a position to judge the veracity of their concerns regarding A.F.’s conduct. Nor am I in a position to make any negative findings of fact against the mother regarding this difficulty. The Current Proceeding

[ 25 ] At the time of the first disposition order D. and N. lived with the mother. At the time of the apprehension, the children were in the care of W.H. and the mother was in Halifax. [ 26 ] The referral sources in this proceeding include her family doctor, her psychiatrist, hospital staff, police, A.F. and W.S. (father to D. herein). [ 27 ] On February 18, 2009 , a referral came from her family doctor. Her doctor first consulted with her psychiatrist regarding his concerns. He then reported to the agency that L.H. presented as scattered.

He was concerned about her ability to organize herself and her medications and look after her children. Her requests for medication were getting "mixed up." Historical Child Welfare Concerns [ 28 ] The mother has had previous voluntary involvement with the child protection agency in October of 2002 and May of 2003. At that time services were offered. [ 29 ] There is a long history of allegations of neglect, exposure of the children to domestic violence due to the mother’s choice of partners (including A.F.,W.H. and W.S.).

It should be noted that there is little evidence before me to suggest that W.H. was responsible for domestic violence. [ 30 ] A history of neglect, ongoing conflict with A.F. and lack of proper supervision existed with respect to the previous three children not currently the subject matter of these proceedings. [ 31 ] This history of neglect and lack of proper supervision continues to date respecting the children who are the subject matter of this proceeding. [ 32 ] This historical chronology is placed here to have a better understanding of the chronology and chronicity of child welfare concerns.

It does not take away any of the obligation on the agency to prove its case based on current information of current and prevailing risk factors. [ 33 ] There are ongoing concerns about the mother’s mental health issues. The mother’s mental health has not been well managed by her. [ 34 ] The agency indicates that while generally cooperative, the mother appears chronically overwhelmed despite numerous services having been offered.

These services included family skills, transportation, monitoring support assistance, public health, etcetera. [ 35 ] There have been disclosures from numerous sources including W.S. and A.F. as to the unkept condition of the home, the neglect of the children, their inability to wake the mother up in the mornings to look after her children and the concern regarding the care of the children during the overnight hours. [ 36 ] I am cautious to carefully weigh the reports made to the agency by A.F. and W.S. as they have motive to complain against the mother.

However, the concerns have been confirmed by more objective sources. [ 37 ] This concern about risk to the children when the mother is sleeping first surfaced on October 30, 2002 , when her first child overdosed on the mother’s medication. [ 38 ] The concern resurfaced when on July 21, 2009, her children reported to their father, A.F., that they had difficulty waking their mother during the visit.

[ 39 ] Again on July 28, 2009 , the child protection worker was unable to wake the mother despite reports from neighbours and herself as a witness to hearing the baby crying in the household and not being able to wake the mother to attend to the baby and answer the door. [ 40 ] Finally, the nurses at the IWK in February 2010 , had difficulty waking the mother in hospital (the last child born February *, 2009, was being cared for in hospital).

This evidence is consistent and weighty. [ 41 ] The mother has been unable to effectively follow the agency’s direction to monitor and protect her children from unsupervised exposure to W.S. and to another young child who has exhibited sexually inappropriate conduct. 2002 Referrals [ 42 ] In 2002, the agency became involved with the mother when her then 21 month old daughter ingested her ativan tablets. The social worker noted there were two small lesions on the child’s buttock.

They noted that the mother was under stress and her "nerves" were bad. [ 43 ] The family physician noted that the child had been up long enough while unsupervised to take the pills and had become unsteady before her mother awoke. The physician expressed concern about the mother’s lack of supervision of her child.

The staff were concerned about the mother’s interactions with the child while in hospital (exhibit 17, tab 3: Agency supplemental affidavit - August 10, 2009). [ 44 ] Despite the concerns regarding her parenting and referrals, a positive bond was noted to exist between the mother and her then 21 month old child (currently in the custody of A.F.). The agency offered support services rather than more intrusive measures. 2003 Referrals [ 45 ] The mother was offered a parenting program and family skills for children under four years of age commencing in November of 2002.

She completed that program in May of 2003. [ 46 ] The agency noted some progress and on May 30, 2003, after the mother completed her family skills and parent education program, they closed their file. [ 47 ] On the 5 th of October 2003, the mother contacted the agency. At this time, she was the mother of three children (not the children who are the subject matter of this proceeding). Her relationship with A.F. (father of two of those children) ended. [ 48 ] She alleged she was a victim of spousal abuse.

Conflict between the couple was evident. [ 49 ] The father was granted interim custody of all three children in September 2006, with scheduled parenting time for the mother. 2006-2007

[ 50 ] The mother contacted the agency a number of times concerned about A.F. [ 51 ] In November 2006, A.F. expressed concern to the agency that the mother was allowing access between W.S. and her two older children. Due to then current child welfare concerns regarding W.S., the mother was advised not to allow unsupervised contact by W.S. [ 52 ] In early 2007, A.F. made further referrals regarding the contact W.S. was having with the children and regarding the mother’s mental health.

The children reported (through A.F.) they had great difficulty waking their mother up during their access visit with her. [ 53 ] On August 21, 2007, the police informed the Agency of the possibility that W.S. may intend to abduct the child. He did attend the home and take the child D. This was interrupted and the child was returned to the mother. [ 54 ] At the time, the police were beginning the investigation into the allegations that W.S. sexually assaulted a 14-year-old.

This subsequently led to his arrest, release on conditions, conviction and incarceration. [ 55 ] Referrals continued throughout late 2007 including a referral from A.F. on October 26 th indicating that the respondent mother had been in physical fight with another woman in the presence of her children.

A.F. received a call from the mother to come and get the children because she couldn’t handle them at that moment. [ 56 ] The mother again agreed to engage in the Healthy Beginnings program which has been previously recommended to her and rejected. [ 57 ] In November of 2007, the police became involved because of an altercation between A.F., who was arrested, and the mother. Both agree this fight was witnessed by the children.

The mother left the home and went to a transition home. 2008 [ 58 ] On January 2, 2008, W.S. reported a fight between then 18-year-old W.H., and W.S. (both respondents herein) at the mother’s home. W.S. described the home as in a state of disarray. W.H. was being used as a babysitter for the children. [ 59 ] On the January 7, 2008, he called the agency again indicating that the conditions in the mother’s home were not fit for his son to live in.

The agency workers conducted a home visit and confirmed that the home was in disarray. [ 60 ] The conflict between the two fathers, W.S. and W.H., continued. [ 61 ] On January 17 th the mother received an email from W.S . in which he threatened to beat up W.H. with a baseball bat. [ 62 ] The mother also advised that she missed her Healthy Beginnings Program appointment. [ 63 ] On January 29, 2008, the public health nurse advised the agency that they could not proceed with the Healthy Beginnings Program because the respondent mother was working until 5:00 p.m. each day. [ 64 ] On the 30 th of January 2008, the agency was advised that the respondent W.S. had been remanded to custody until the 18 th of February 2008.

[ 65 ] The agency continued to encourage the mother to make and attend monthly appointments with her psychiatrist. While she said she would do so, she did not follow up in a consistent manner. [ 66 ] Throughout 2008, the agency continued to provide services to the mother. She has been diagnosed with bipolar disorder and was suffering panic attacks and depression. [ 67 ] Referrals continued to the agency in May and June of 2008 resulting in an agency home visit.

On one notable visit, the mother appeared drowsy having forgotten to take her medication the day before. [ 68 ] In September 2008, after having been convicted of sexual assault and jailed for one year, W.S. was about to be released from prison. [ 69 ] The agency encouraged the mother to obtain a custody order with respect to the child D. to ensure there were terms and conditions imposed with respect to W.S.’s contact. [ 70 ] Giving support to their concerns, during an October 2008, home visit, the mother reported to the agency that W.S. had tried to commit suicide in the past by trying to slit his wrist or hang himself while on the telephone with her. [ 71 ] On October 14, 2008, they were informed that W.S. had moved out West.

He returned in December of 2008. [ 72 ] The mother was offered a course on the effects of family violence on children as well as a child development course. This program started in March of 2008 and was completed in March of 2009. [ 73 ] By February 2009, the mother still had not engaged with the Healthy Beginnings program. 2009 - Current Child Protection Involvement [ 74 ] Although there had been improvement in a number of the concerns, her doctor’s referral on February 18, 2009, required additional agency involvement. Her doctor was concerned about her ability to care for the children.

She was using four different medications (effexor, seroquel, lorazepam and clonazepan). She appeared scattered and mixed up. He was concerned about her ability to organize herself and care for the children. [ 75 ] The July 28, 2009, incident resulted in more intrusive measures. Given the instability of her medical and mental health and mood, the agency required the mother be supervised by another adult (W.H.) while with the children. [ 76 ] There were chronic concerns about the mother’s inability to remain alert and appropriately attentive to the children’s needs.

The August 7, 2009, Protection Application [ 77 ] The August 12, 2009, interim order permitted the children to stay in the care and custody of the respondent mother and W.H., subject to agency supervision.

[ 78 ] The mother was not to have unsupervised care of the children. [ 79 ] Other terms and conditions were imposed including the requirement that the respondents comply with services, assessments, testing, treatment and counselling as required. [ 80 ] The identified child welfare factors included the following: -her inability to remain alert and appropriately attentive to the children’s needs ; -the lack of stability of her mental health and mood; -repeated and continuing adult conflict environments respecting all three fathers (A.F.,W.H. and W.S.) and the exposure of the children to this violence; -custody and access conflict with respect to D.; -history of criminality with respect to W.S. including convictions for assault, sexual assault, uttering threats and breaches of probation; -poor parental decision making and inadequate supervision of the children in the household; and -lack of follow through with services. [ 81 ] On October 8, 2009, there was a consent order finding that the children remained in need of protective services.

The children remained in the care and custody of the respondent mother and W.H., subject to agency supervision and conditions. The Birth of the Third Child [ 82 ] The mother was hospitalized from the 21 st of October 2009, until the child’s birth on November *, 2009, due to her high risk pregnancy. Q. was born premature weighing three pounds, three ounces at birth. Given the serious state of his health, he remained in the IWK until he was able to be transferred to St.

Martha’s Hospital on March 1, 2010. [ 83 ] The provision of services continued. [ 84 ] The second Protection application commenced shortly after Q.’s birth (November 28, 2009). The identified child welfare risks regarding Q. were stated in the affidavit of the agent D.K., dated the 18 th of December 2009. At paragraph 9, they include: 1. Chronic maternal mental illness and inconsistent follow through with treatment and management; 2. Repeated adult conflict and exposure of children to same;

3. Lack of understanding and unwillingness to address child’s needs and parenting responsibility; 4. Poor parental decision making and inadequate chid supervision; and 5. Lack of follow through with required services for the children. [ 85 ] The agency’s Plan of Care dated the 8 th of January 2010, proposed the children remain in the care of the respondent mother and W.H., subject to supervision. [ 86 ] Services were provided to facilitate the children remaining in their home in a stable environment.

This allowed the agents to monitor the home situation and to ensure parental follow up with necessary appropriate services for the children. [ 87 ] The parents were provided the opportunity to attend therapeutic counselling. The mother was assigned an individual counsellor to address a number of factors including her mental health issues. [ 88 ] This service began in September of 2009. It was on hold during the period of the mother’s pregnancy due to the complications in her pregnancy leading up to the birth of the third child. [ 89 ] The mother remained close to the hospital with the youngest child.

The agency provided W.H. and the two children transportation services to ensure that the children were able to keep in contact with their mother and their sibling in Halifax. [ 90 ] In the agency’s affidavits dated the 3 rd of March for Q. and March 23 rd regarding D. and N., the agency describes the series of events that led to their application to apprehend the children, moving them out of the care of W.H. and the mother and into their temporary care pending resolution. [ 91 ] As time passed, W.H. presented as overwhelmed with difficulties as he attempted to manage and attend to the needs of the children. [ 92 ] W.H. was unable to maintain the children’s appointments with Early Intervention and the Speech and Language Clinic and manage all of the children’s needs while the mother was in the hospital. [ 93 ] Around December 23, 2009, the IWK expressed concerns regarding the mother’s mental health.

This prompted a mental health assessment with a follow up referral to psychiatry. The mother did not attend. [ 94 ] On the 4 th of February 2010, a social worker for the IWK advised the agency that the mother had overdosed on her psychiatric medications, effexor and diazepam, on February 1, 2010, resulting in her admission to the QE II Hospital in Halifax. This appeared to follow a break up with her boyfriend, W.H. The mother was released into the custody of her parents. [ 95 ] The mother denies this was an intentional overdose.

She was feeling overwhelmed and suggests she had taken the wrong medication and the wrong dosage by mistake, emptying her bottles of diazepam and effexor. [ 96 ] After the breakup between W.H. and the mother, the children went with W.H. to stay at his aunt’s home in P.H.

[ 97 ] The parents' lifestyles were chaotic and turbulent. Their lives were in disarray. [ 98 ] At the same time, Q.’s needs were significant, requiring a stable parenting plan. The two children and W.H. left his aunt’s home and set up his own place. The description of his premises and the state of the children was markedly inadequate. [ 99 ] W.H. was occupied with another relationship.

His premises, and thus the children’s premises, were inadequate to address the children’s needs. [ 100 ] The mother and W.H. advised the agency on the 23 rd of February 2010 that W.S. had been arrested after he and his new girlfriend, C.A., cornered the girl he had been convicted of sexually assaulting. [ 101 ] None of the parents put forward a stable and consistent plan of care despite requests from the agency. [ 102 ] Having provided support services for a considerable period of time, more intrusive measures were necessary to address the risk to the children. [ 103 ] By order dated March 8 and March 25, 2010, all three children were placed in the temporary care of the agency with supervised access to the parents. [ 104 ] The respondent parents were required to attend services, assessment, testing, treatment and counselling.

The agency incorporated the service recommendations into its revised plan of care dated the 25 th of June 2010. [ 105 ] Parental capacity assessments were prepared respecting each of the three respondent parents. [ 106 ] The goal of the assessment of W.S. included an enquiry to address the difficulties with respect to W.S.’s past conviction of sexual assault under

Section 271 of the Criminal Code . [ 107 ] On the 25 th of March 2008, W.S. was sentenced for an assault on a 14-year-old female. W.S., 24 at the time of the offence on August 11, 2007, denies responsibility for the offence committed. The specifics of the offence consisted of W.S. grabbing the breast of a 15-year-old girl (at a ball field) one night.

He said this girl told him she was 17. [ 108 ] He advised the assessor that the victim was friends with "the mother herein" and the only reason he was with her was to get information from her about the mother, with whom he was in love. [ 109 ] His sister testified in these proceedings that this girl was in fact harassing him. [ 110 ] W.S. received six months incarceration for the assault. [ 111 ] The Court is bound to accept the conviction. If I were to accept the testimony of W.S., the most favourable

interpretation I could assign to the circumstances is that, at 25, W.S. significantly lacked maturity and judgement in relationship issues.

[ 112 ] The testimony of his history depicted in his probation report and currently as described in evidence regarding his relationship with the mother and his current intimate relationships supports a conclusion that this immaturity continues to date. [ 113 ] This parental capacity assessment relating to W.S. was delayed when the assessor, V.R., filed a letter dated January 15, 2009, in which she indicated a concern about the cognitive deficits she observed in W.S. [ 114 ] The assessor was concerned about how these cognitive deficits affected his ability to participate in a parental capacity and sex offender risk assessment. [ 115 ] Her concern is noted as follows: I was concerned with the level of his comprehension and whether he fully understood the possible outcomes of the assessment.

In addition, I was concerned that he may not meet criteria to administer the psychological test battery. [ 116 ] In order to determine if it was appropriate to proceed, the assessor consulted with other known experts in the field. [ 117 ] She decided to first administer the Wecshler Adult Intelligence Scale and the comprehension components of the Wecshler Individual Achievement Tests to determine W.S.’s cognitive ability.

This testing was concluded on November 4, 2009. [ 118 ] The assessor properly consulted others to determine whether it was ethical to administer the psychometric testing given W.S. cognitive deficits. She concluded that she could not administer this specific test given his deficits, the invasive nature of the testing and the reliability of the results. [ 119 ] After further consultation with her peers, the assessor determined that W.S. did not meet the criteria for the administration of the psychological test battery.

She did, however, continue with the clinical interview in order to obtain “useful data” regarding his perception of the sex offence for which he was convicted and incarcerated, his perception of risk factors and an indication of his personality structure and mental health status. [ 120 ] This assessment was not concluded due to W.S.’s denial of this offence. [ 121 ] After incarceration, W.S. was subsequently released on community supervision. His probation report concludes that he did not complete his community service.

The report notes he struggles with substance abuse. [ 122 ] Further, W.S. refused certain placements because he did not want to deal with the public and failed to complete the hours imposed because his focus was on the child protection proceedings. [ 123 ] No judicial finding has taken place regarding the sufficiency of these excuses offered by W.S. for his failure to complete his community service order.

The probation office testified that a breach of probation charge could not be brought due to the fact that the community service order stood alone and was not affixed to a probation order. [ 124 ] The assessor’s recommendations regarding all three parental figures are summarized below: The mother: It is recommended that D., N., and Q., be placed in the permanent care of the Children’s Aid Society of Inverness Richmond, with a plan for adoption with the continuation of access until a final decision is made .

The assessor recommended that the mother be encouraged to follow up with mental health services to increase the prognosis of a healthier lifestyle and mental health status. The father W.H. (father to N and Q.): It is recommended that W.H. not be considered an appropriate parental figure for D., N. and Q. The assessor recommended the children remain in the protective care of the Agency with various recommendation to W.H. regarding his future educational and physical and mental health. The father W.S. (Father to D.) It is recommended that W.S. not be considered as a primary caregiver for D.

Only supervised visits until such time as a plan for the children is put forwards by the agency and accepted by the court. W.S. [ 125 ] The assessor made various recommendations for W.S. to address his need for assessment and treatment including participation in group therapy for those who deny having engaged in and/or been convicted of sexual abuse. [ 126 ] The 2007 probation report tells of W.S.’s troubled history and the difficulty his parents had trying to keep him out of trouble. He presented as out of control and threatening to other family members.

Due to child welfare concerns about the safety of other siblings in his household while he was present, his mother and a younger sibling had to leave the household for a considerable period of time while he remained in the family home. [ 127 ] The assessor was concerned with what she observed as his current behaviour and inappropriate treatment of his parents. [ 128 ] Until W.S. gains insight regarding his responsibility in relationships, he continues to be at risk of poor judgement which affects his ability to look after himself, let alone children. [ 129 ] His mother continues to be his time manager, getting him to his various family and criminal court dates.

Left to his own devices he may not show up and has in fact incurred a breach charge. [ 130 ] His mother speaks of his cognitive limitations and the need to modify instructions and information to ensure he understands. She tended to blame others for his ongoing difficulties.

He is influenced by this deflection of responsibility and he himself argues that no one gives him a chance. [ 131 ] While his mother testified she believed he could effectively parent, she does not address how he would gain insight and accept responsibility for his own behaviour; a change that would be necessary before he could begin to consider full time parenting. This is not likely to occur. [ 132 ] Nor has she clearly articulated any insight regarding his current cognitive deficits and expressive and receptive language difficulties. This deficit is one that is currently being addressed for his son D.

I am not certain at this stage in the father’s life what would be required to resolve this issue for W.S. [ 133 ] His poor judgement and, by his own admission, his tendency to follow badly selected friends, keeps him in the thick of criminal

and relationship problems. [ 134 ] No appeal was launched regarding the conviction for sexual assault and this court is not in a position to draw any conclusions regarding the details other than his conviction stands Psychologist - D.P. [ 135 ] The assessor did not receive a response from W.S.’s therapist D.P., a registered psychologist, in time to include his comments in her report. He was subpoenaed by counsel for W.S. [ 136 ] On cross examination, D.P. admitted, despite W.S.’s apparent motivation to attend therapy over the years (with parental assistance), he has not made significant progress .

His therapist credits W.S.’s parents, and in particular his mother, for keeping W.S. current with his appointments. [ 137 ] The hospital file indicates many assessments have been undertaken over the years on W.S. Counsel had access to the file. In the request for relief, counsel argues that one option that ought to be pursued is an adjournment to obtain further reports and /or assessments. [ 138 ] Without a purpose for these assessments and further definition as to what ought to be tested, together with evidence regarding what testing has already taken place, such a request would have little meaning.

None of the previous reports, other than the probation and the assessor's report were submitted in evidence. [ 139 ] W.S.’s involvement with the psychologist began after an admission for a para-suicidal incident in 2007 (wrist slitting and an attempt to hang himself). The hospital could not determine whether this was or was not an intentional suicide threat. [ 140 ] He is treated for ADHD, depression and has been introduced to various coping strategies.

D.P. is credited with successfully arresting W.S.’s "cutting behaviour" by introducing other stress reduction options. [ 141 ] To address all of W.S.’s issues he will need significant long-term therapeutic intervention.

Support Services [ 142 ] Supervised access was provided to W.S. with his child D. [ 143 ] The agency provided travel and other services to ensure that the children had contact with the mother while she was hospitalized around the pregnancy and birth of the third child. [ 144 ] Throughout the course of the protection application other family support programs were offered including a 1, 2, 3, 4, parenting program.

[ 145 ] The child, D., was referred to speech and language services for evaluation and recommendations. He has a mild to moderate receptive language delay and a moderate expressive language delay. Due to limited family follow up, the agency took over responsibility for follow up. [ 146 ] Other early intervention services were offered as well.

Mental health services and referrals were offered and are contained in the plan of care. [ 147 ] The respondent W.H. did not maintain reliable contact with the agency which impeded access scheduling and arrangements. [ 148 ] The evidence discloses that up to and including the agency affidavit of the 25 th of June, the respondent mother and W.H. had been inconsistent and unreliable in attending scheduled services.

Family Support Worker [ 149 ] The family skills worker provided in-home parent education. [ 150 ] She provided family support services/parent education to the mother during previous agency involvement and to W.S. in the course of this proceeding. [ 151 ] In January 2003, she continued the support services offered by a previous support worker who had been attending the mother’s home in November of 2002.

The family skills worker continued those services from January 2003, to May 2003, at which time the then ongoing protection file was closed. [ 152 ] She became re-involved on the 27 th of March 2008, and continued her involvement until the 3 rd of July 2009, providing in home support services to the mother.

At that time, the mother was living with W.H. [ 153 ] A referral was sent by child protection to the family skills worker to commence support services again on the 29 th day of June 2010, with W.S. [ 154 ] The worker attended three supervised access visits with W.S. and his son D. to observe, provide comment and educate. These visits occurred on the 21 st of July 2010; the 8 th of September 2010; and the 22 nd of September 2010. [ 155 ] E.D. concluded that W.S. did not did not require her intervention. [ 156 ] She met with W.S. on October 18, 2010, to discuss his son’s development.

They discussed a particular development screening tool, the Nippissing Developmental Screening. [ 157 ] She gave some recommendations and suggestions to W.S. on how to use the video associated with the screening tool and scheduled a further meeting for November 1 st . [ 158 ] W.S. did not make the November 1 st meeting due to illness. The meeting was rescheduled to November 5, 2010. When W.S. returned, he had not completed any of the homework that was assigned with respect to the developmental screening tool.

[ 159 ] She reported in the July 21 st report appropriate interaction between W.S. and D. Likewise, the September 8 th report revealed the same appropriate interchange. [ 160 ] This service was also offered to the mother, however, she was unavailable to attend due to the birth of the third child. Afterwards, after the mother’s prescription overdose, the focus changed to engage the mother in therapeutic and psychiatric services rather than family support services until her mental health issues were addressed. Speech Language Pathologist [ 161 ] D. spent his early history living with the mother and W.H.

His first words were delayed by one year and six months. [ 162 ] Formal testing and observation demonstrated he had difficulties in receptive and expressive language categories. He was 24 months old when tested. He was diagnosed with mild to moderate delay in the receptive language abilities (age equivalent - 15 months). Specifically, he has difficulty following directions (three step commands), understanding early vocabulary (body parts), choice making and in expressive language skills. He was assessed at an age equivalent of 13 months, establishing a moderate delay.

The tester noted “particular areas of concern” including single word use only, low vocabulary and communication skills (eye contact, voice intonation). [ 163 ] Beginning on August 31, 2009, and in large part due to agency intervention, this child became involved with support services involving speech pathology to address his developmental delay. [ 164 ] The services were largely attended by the foster parents and the agency. They brought this child to age appropriate levels such that in 13 months he achieved age appropriate abilities.

The speech pathologist recommends he continue with his association with early intervention to ensure a smooth transition into school. W.S. - Father of the child D. [ 165 ] W.S. supervised access visits were unremarkable. He cancelled September 1, 2010, because he had to attend criminal court to answer to charges before the criminal court. He cancelled again on September 15, 2010, again because of criminal court. [ 166 ] W.S. is facing three further criminal charges.

While he is no longer on probation, he is now charged with two counts of failing to attend court (on June 16 th ) and a charge of theft under for an incident that is alleged to have occurred at Shoppers Drug Mart. [ 167 ] He also failed to attend the 5 th of October access visit. [ 168 ] He advised he did not have cell phone minutes so he could not be reached on his cell.

He attended the agency with his mother on the 6 th of October 2010, confirming he had forgotten about the October 5 th visit with his son. [ 169 ] In March 2010, the police were called to respond to domestic disturbances between himself and his current girlfriend, C.A.

[ 170 ] A further incident occurred on the 24 th of July 2010, when the RCMP responded to a complaint alleging that W.S. and his girlfriend had gotten into another domestic dispute. No charges were laid. [ 171 ] His girlfriend, C.A., is pregnant with his child and is due to deliver in February 2011. His plan is to stay with his current girlfriend, have this new baby and take over the care of D. [ 172 ] W.S. has indicated that addiction services have nothing to offer him. He feels good when he smokes marijuana. He admits frequent use. He believes this usage helps him.

If he is given his child back, he will quit smoking marijuana. [ 173 ] He intends to go out West this winter although it is unclear as to how definite those plans are. [ 174 ] W.S. criminal record forms part of the exhibits in this proceeding. He has adult convictions starting from July 11, 2007, to January 1, 2008. There are more recent charges outstanding. He has been convicted of being unlawfully in a dwelling house, mischief, breaches of probation, sexual assault, uttering threats, indecent telephone calls, failure to comply with conditions and most recently charged with theft and two breaches.

The Mother [ 175 ] There are in the access supervisors notes a number of missed access visits. As well, the facilitators provided transportation for the mother to and from some appointments.

She was not present on a number of occasions, without notice or excuse. [ 176 ] The mother became overwhelmed with appointments such that the psychiatrist agreed it was better simply to have her see one counsellor to manage her personal issues. [ 177 ] The parenting skills course was deferred, in part, due to her difficult pregnancy and, in part, because it was determined she first needed to focus on her own mental health issues before she moved into parenting courses. [ 178 ] On the 9 th of September, the mother slept in and missed a visit with her child.

On the 10 th of September, she cancelled her access visit with the infant, indicating that she had run out of her medication and needed to contact her psychiatrist. [ 179 ] On September 14 th , there were some difficulties during the access visit due to the fact that there was a scheduled feeding for the child. The mother thought she had seen the child two weeks previously. In fact, the visits had been cancelled for approximately a month.

Thus, she was somewhat unfamiliar with the child’s schedule. [ 180 ] By September, the agency decided to develop a strategy to minimize the child’s travel and disruption given the number of times the parents cancelled their access visits. The agency rearranged the location of the visit. If the mother cancelled or did not show up for her transportation, scheduled one hour prior to the visit, the children need not be disrupted. [ 181 ] In addition, the agency had to assist the mother attend her psychiatrist’s office. [ 182 ] Her October 28 th access visit was also cancelled. Counselling Services for the Mother

[ 183 ] The reports regarding this service (exhibit 13) show relatively little progress and insight . There appears to be no indication that the mother has gained insight or is able to manage scheduling and attending sessions. There is nothing in this report that would support a conclusion that the mother has addressed the historic and chronic mental health issues such that the identified concerns and resulting risk to the children have been addressed sufficiently or can be addressed within the time frame stated in

Section 45 of the Children and Family Services Act . [ 184 ] The agency’s latest plan of care (exhibit 18, tab 18, page 1) notes that they can identify no further services that may remedy the risk to the children if in their mother’s and father’s lives. The parental conflict and relationship difficulties continue. The mother’s mental health issues remain as before, occupying much of her time and focus. [ 185 ] The individual counselling efforts have not produced insight or change such that one could conclude the mother will likely exercise good judgement in future relationships.

Without insight and some tangible evidence of behavioural change the most likely scenario is that the mother’s future relationships will mirror past problematic relationships. [ 186 ] During many access visits, the mother has to be rooted and reminded of issues regarding supervision and safety. Her performance at some visits is of an appropriate standard yet at others it is not. [ 187 ] There is not sufficient reliability or consistency to predict with certainty that she will be consistently attentive and focussed on the children’s needs first.

Managing her own illness and her lifestyle issues takes much of her focus. [ 188 ] The assessor noted the mother’s previous diagnosis of mood disorder and bipolar disorder. Her psychiatrist notes at the time of the assessment there were no current signs. [ 189 ] The child welfare risk factors are indeed chronic and persistent. The many interventions have not been successful. The mother would require significant support services to parent these children and ensure their needs were met.

The plan put forward by the mother and the evidence of the maternal grandparents simply does not address the deficits. [ 190 ] There are no signs that these interventions have made a difference. More significantly and immediately, the evidence does not show that the mother is any more likely to be attentive on her own to care for the children 24/7. This is a significant risk issue. Placement options other than Permanent Care [ 191 ] Both parents love their children. Understandably, both the mother and W.S. want to remain connected with their children.

In supervised situations, they appear with support to be able to address the immediate needs of the children, although the mother has demonstrated much more difficulty with consistency, supervision and scheduling. [ 192 ] W.S. shows an ability to instinctively address his son’s immediate physical needs in a supervised access setting. This, however, is limited to supervised access and has not evolved beyond that very protected environment. [ 193 ] He has consistently complained to the agency about the inadequate living circumstances in the mother’s home.

He had cause to complain. [ 194 ] He, however, has not addressed his criminal issues, some of which may be exacerbated by his cognitive deficits and his denial of responsibility for his conduct. He exhibits little insight and accepts little responsibility for his criminal involvement. [ 195 ] The assessment report speaks to his cognitive deficits. In addition, he lacks residential and relationship stability and has difficulty keeping his own life in order. His lifestyle does not begin to address his child’s global needs.

[ 196 ] Their lifestyles and personal issues are far too significant and, as yet, have not been addressed despite agency intervention. [ 197 ] The parents individually and collectively have not demonstrated an ability to address in priority their own needs and the needs of these children. [ 198 ] The mother’s plan, dated November 5, 2010, came very late in the proceedings. Her two page affidavit outlines her wish to have the children placed in her care under the supervision of the agency. [ 199 ] The first disposition order for the two older children is dated January 18, 2010, and the first disposition for Q. is dated April 19, 2010. [ 200 ] The

Section 45 time line respecting the first two children ends January 18, 2011, and for Q., April 19, 2011. [ 201 ] If the Court were to consider a return of the children to the parents within the purposes of the Act , the Court could only impose conditions up to the January 2011, date.

After that, the return to the parent would have to be without conditions. [ 202 ] With respect to Q., the Court would have to conclude that there is a reasonable likelihood that the mother could address her issues prior to the April 19 th date, such that return to her care would take place without conditions. [ 203 ] There is no evidence to support that conclusion. Indeed, the weight of the evidence supports a conclusion that little has changed in the mother’s life.

The evidence supports a finding that the children would be at significant risk in the sole care of the mother and D. would be at considerable risk in the care of the father. [ 204 ] The mother proposed she be the primary care giver and, when she is unable to do so, her parents would assist her. There is no substance to the plan that would allow the Court to conclude the risk issues have been addressed, that she could be primarily responsible for the children and that her health issues have been addressed. [ 205 ] The mother’s parents have supported this mother throughout many difficulties in her life.

They did not express in their testimony (perhaps understandably) any insight into the reasons their daughter’s access was supervised. The maternal grandmother’s testimony discloses little current interaction between the mother and the maternal grandmother. [ 206 ] The maternal grandmother and grandfather did not propose they would be able or willing to be the primary caregivers. Other Placement Options [ 207 ] W.S.’s mother, B.S., originally considered adoption. The agency continued to approach the paternal grandmother to consider whether this option was possible.

They indicated they could discuss custody without a need for her to retain counsel because she advised she did not want to retain counsel. [ 208 ] The paternal grandmother was aware of agency involvement in March 2010. She was informed how to put forward a plan of care should she wish to be considered as primary custodian. Initially, she advised she would like to adopt D. [ 209 ] Eventually, the paternal grandmother, B.S., concluded that she would not put forward a plan, given that her son wished to have the child with him.

She advised of her significant health concerns that would impair her ability to care for D. She also advised her husband was not prepared to submit to an assessment .

[ 210 ] While W.S. proposed his parents as his support should the child be returned to his care, he also advised it was his intention to find employment out west, leaving the child in his mother’s care. [ 211 ] His plan has many gaps.

In addition to the recommendations and concerns regarding his cognitive deficits, his lifestyle, his ongoing criminal involvement and drug use, his plan would not address the best interests of the child. [ 212 ] One of the factors I have considered, in rejecting the grand parental support options as a realistic option, is the fact that these children have been living in chronic turmoil with their mother and various partners since their birth. [ 213 ] There have been repeated child welfare and police referrals and involvement.

The presence of the grandparents in the parent’s community has not effectively materially altered the lives of these children such that the child protection concerns have been addressed despite their willingness to provide support to the parents. [ 214 ] The assessor voiced her concern about her observations regarding W.S.’s poor rapport with his parents. Although the maternal grandparents stated they would do whatever it took, they had very little concrete knowledge of the plan details.

Conclusion [ 215 ] I am satisfied on the totality of the evidence that the agency has proven on the balance of probabilities that these children would remain in need of protective services if returned to the parents. [ 216 ] I am satisfied that there has been very little progress made by both the mother and W.S. that would address their significant lifestyle, medical and personal issues such that they would be able to address the needs of the children without ongoing intervention and support. [ 217 ] I am satisfied that there is a long history between the mother and the agency, wherein, the agency supplied many opportunities for the mother to learn and correct the deficits that existed which placed her children at risk. [ 218 ] These opportunities have not produced tangible results.

The children continue to be at risk if in the mother’s care. [ 219 ] Further voluntary or mandated services will not likely produce material change necessary to address the risk and certainly not with the time lines articulated within

Section 45 of the Act. [ 220 ] I am satisfied that no viable alternative exists now or is realistically possible within the time limits set out in

Section 45 of the Children and Family Services Act such that the Court could place the children in the care of their parents. [ 221 ] I am satisfied that the only realistic option available to the Court regarding the disposition of this matter and long term planning for the children is to place these children in the permanent care of the Department of Community Services with a view to adoption in accordance with the stated objectives of the Act . [ 222 ] There shall be no order as to access other than as arranged by the Department of Community Services for the purposes of arranging a goodbye visit. [ 223 ] Counsel for the applicant shall draft the order.

Moira C. Legere Sers, J.