Manager of Child v. Youth Services, ZONE H, 2022 NLSC 58

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR FAMILY DIVISION Citation : Newfoundland and Labrador (Child and Youth Services) v. M.M. , 2022 NLSC 58 Date : March 31, 2022 Docket : 201904F0005 Between: Manager of Child and Youth Services, ZONE H Applicant And: M.M. Respondent Restriction on Publication: 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 55 of the Children, Youth and Families Act . Before: Justice Laura A. Mennie Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: February 14 - 16, 2022 Date of Oral Decision: March 25, 2022

Summary: The Manager of Child and Youth Services, Zone H sought an order for the continuous custody of the child, Z. The Court determined that it was in the best interests of Z. to grant the order.

Appearances: Franklin R. A. Layte Appearing on behalf of Manager of Child and Youth Services Sandra L. Sarto Appearing on behalf of M.M. Authorities Cited: CASES CONSIDERED: Director of Child, Youth and Family Services v. J.(J.) (1993), (NL SC), 113 Nfld. &P.E.I.R. 120, [1993] N.J. No. 305 (Nfld. U.F.C.) STATUTES CONSIDERED: Children, Youth and Families Act, S.N.L. 2018,

Chapter C-12.3 REASONS FOR JUDGMENT Mennie, J.: INTRODUCTION [1] M.M. is the mother of Z., born January 2019. On June 15, 2019, the Manager of Child and Youth Services (hereinafterreferred to as “the Manager”) with the Department of Children, Seniors and Social Development (hereinafter referred to as “CSSD”)removed Z. from M.M.’s care without a warrant. On May 4, 2021, the Manager filed the present application seeking a continuouscustody order.

EVIDENCE PRESENTED BY THE MANAGER [2] The Court received three affidavits: one from Nicki-Lee Parsons, the social worker assigned to M.M.’s protection file; oneprepared by Chelsea Butler, a social worker assistant; and the other was written by Heather Ezekiel, the social worker responsible forZ.’s in-care file. All three individuals testified in person. Also in the Court file were two affidavits from Natalie Hynes which wereprepared in relation to an earlier application concerning Z. Ms. Hynes was the visit supervisor who oversaw the majority of M.M.’s visitswith Z. after the child’s removal.

She also provided M.M. with family support services. At the time of this hearing, Ms. Hynes was onmedical leave. She did not testify in person. CSSD involvement: 2018 to June 15, 2019 [3] In August of 2018, the Family and Children Services office in Niagara, Ontario (hereinafter referred to as “FACS Niagara”)contacted CSSD to alert it that M.M., who was pregnant at the time, had just relocated to Deer Lake, Newfoundland and Labrador.

FACSNiagara advised CSSD that it had had involvement with M.M. and her three children, S., N. and P., all of whom had different fathers.FACS Niagara reported that it had been involved with M.M. from approximately 1996 to 2013. The concerns included drug and alcoholabuse, lack of supervision, domestic violence, lack of stable housing and use of physical discipline. Supervision orders were obtained inan attempt to reduce risk but M.M. did not follow through with services. S. was removed from her mother’s care in 2005 and placed infoster care. She then went to live with her father. S. now resides in this Province.

As N. was living with his father at the time, thedecision was made that he remain there. P. was born in May 2015 and tested positive for cocaine. Both M.M. and P.’s father admitted todrug use at that time. FACS Niagara worked with the parents to ensure neither was under the influence while actively parenting P. Itreported that M.M. did attend counselling as well as a treatment center. FACS Niagara indicated that despite M.M.’s efforts, shecontinued to struggle with substance use.

Their file was closed in April 2013 when P. was placed with his father. [4] On January 6, 2019, CSSD was contacted by the local hospital and advised that M.M. had just given birth to Z. Social worker,Nicki-Lee Parsons, spoke with M.M. at the hospital. Ms. Parsons indicated that M.M. tested negative for drugs. M.M. did admit,however, that she drank alcohol throughout her pregnancy and had been drinking the night before she went into labor.

Given thisadmission, along with the historical information provided by FACS Niagara, on January 7, 2019, the Manager applied for and received atelewarrant to remove Z. from M.M.’s care. [5] After the removal, CSSD requested that M.M. have an addictions assessment and receive counselling with a view to improvingher coping skills. As M.M. demonstrated a willingness to work with the Manager and there were no current concerns about substanceabuse, on February 13, 2019, Z. was returned to her mother’s care subject to a supervision order.

The order contained a number ofconditions including ongoing counselling which would focus on addiction issues and coping skills and participation in parenting

programs offered by either CSSD or at the Treehouse Family Resource Centre in Deer Lake (hereinafter referred to as the “Resource Centre”). [ 6 ] Ms. Parsons stated in her affidavit that after Z. returned home with her mother, M.M.’s commitment to work cooperatively with CSSD began to wane in that she refused to attend programs at the Resource Centre and she would not provide CSSD with consent to speak with her step-dad whom she had indicated would be a significant support for her.

M.M. also failed to ensure that Z. received her four month vaccinations in a timely fashion and she cancelled and rescheduled Z.’s appointments with her pediatrician numerous times [ 7 ] On March 19, 2019, Ms. Hynes began providing family support services to M.M. She also indicated in her affidavit that M.M. refused to attend programming at the Resource Centre. Initially M.M. cited transportation issues; however, when CSSD arranged transportation for her, she still would not attend. Ms.

Hynes reported that M.M. was not open to any suggestions concerning the establishment of a predictable routine for Z. in relation to feeding times and sleep schedules. She was disinterested in learning age appropriate games and her interaction with Z. during visits was limited. Ms. Hynes advised that M.M. would secure Z. in a bouncy chair or bassinet and not engage with her for lengthy periods of time. Ms.

Hynes also indicated that M.M. frequently left the access supervisor to care for Z. so she could go outside for a cigarette. [ 8 ] On June 14, 2019, CSSD received a referral that M.M. was caring for Z. while under the influence of cocaine. The referral source reported that M.M. was being impatient and physically aggressive with the child. Social worker Heather Ezekiel accompanied by two members of the RCMP attended M.M.’s home but no one was there. Ms. Ezekiel contacted the referral source who indicated that M.M. had placed Z. in his/her care shortly before midnight.

CSSD was aware that the referral source was a known drug user who lived with a partner that had been previously charged with domestic violence. In light of this and given that M.M.’s whereabouts were unknown, CSSD removed Z. in the early morning hours on June 15, 2019 without a warrant. CSSD involvement: June 15, 2019 to May 4, 2021 [ 9 ] Due to the allegations that M.M. had been aggressive with Z., Z. was brought to the hospital for an examination. After a medical and x-rays, no concerns were noted. Z. was placed in a foster home.

CSSD did not reach M.M. to advise her of the removal until late in the morning on June 15, 2019. When CSSD met with M.M. on June 17, 2019, she denied any drug or alcohol use or any physical aggression towards Z. On that same date the Manager filed an application for a six-month temporary custody order. [ 10 ] On June 18, 2019, Z.’s pediatrician contacted CSSD with concerns she had about Z.’s development, in particular how Z. was positioning her arms and shoulders. She also indicated that based upon her observations, M.M. did not appear to have an attachment with Z.

She noted that M.M. made comments such as, “I need you to make her stop crying, she is driving me crazy”. The doctor asked that Z. be examined at the Janeway Children’s Health and Rehabilitation Centre. Z. was at the Janeway for three days. It was determined that her motor development was not on par for her age. A physiotherapist recommended that Z. have 90 minutes of tummy time per day. [ 11 ] After Z. returned to foster care in June 2019, M.M. was permitted access seven days per week. Initially the visits took place at the CSSD office in Deer Lake.

When Z. was moved, at M.M.’s request, to the foster home in Deer Lake where she had lived after her removal on January 7, 2019, visits moved to M.M.’s home during the work week and to the foster home on the weekends. Weekday visits were four hours in duration. [ 12 ] The affidavits filed with the Court reveal that M.M. did make some positive steps after Z.’s removal in June 2019.

She and Z. attended some programs at the Resource Centre, she accompanied Z. to several medical appointments, she was available for most of her scheduled access visits and she provided Z. with basic care when she was with her; however, there were several concerns. It was noted that M.M. was often unprepared when Z. came to her home and on some occasions had just awoken as Z. arrived. During visits, M.M. would not engage with Z. in a meaningful way. She would rarely sit on the floor and play with her. Instead, it was reported that M.M. would sit on the sofa and look at her phone for extended periods of time.

The social workers reported that M.M. was very reluctant to follow the physiotherapist’s recommendation for tummy time. Instead, Z. was confined in a chair for lengthy periods of time. M.M. was observed to be extremely preoccupied about Z. not getting her hands dirty when she ate. If this occurred, M.M. became visibly frustrated with the child.

Concerns were also voiced that M.M. presented as under the influence on several occasions at visits. [ 13 ] Perhaps the most significant concern presented by the social workers involved with the file and the foster mother, D.P., was M.M.’s ability to cope when Z. was irritable. M.M. was frequently observed to become overwhelmed. It was reported that on numerous occasions she would tell Z. to “shut up” or call her names such as “brat”.

It is alleged that she made loud comments in Z.’s presence such as: “I’m not dealing with this”, “She’s pissing me off”, “She’s too cranky”, “She’s getting on my nerves” and “Will you just fuck off and let Mom rest”. [ 14 ] On January 15, 2020, the Manager amended its application to seek a continuous custody order. Access visits moved back to the CSSD office and were decreased in frequency to three days a week with each visit lasting two hours. M.M. was also permitted one video call a day with Z. on non-visit days. Unfortunately on March 24, 2020, all in-person access was suspended due to the Covid pandemic.

The Manager arranged for M.M. to have two video calls with Z. each day, one in the morning and one in the evening. This was later changed at M.M.’s request to afternoons and evenings. As well, M.M. was permitted to attend at the foster home each day for a window visit. Ms. Parsons indicated in her affidavit that while some of the video calls were positive, there were some recurring problems. She reported that M.M. was inconsistent in availing of the calls. At times, multiple days passed in between them. On other occasions it was suspected that M.M. was under the influence. Ms.

Parsons noted as well that from March 24, 2020 to June 1, 2020, M.M. only availed of window visits about 10 times even though she lived only five minutes away from the foster home. [ 15 ] In-person access recommenced on June 8, 2020. Visits initially began at the CSSD office; however, on July 23, 2020, the visits moved back to M.M.’s home. Two visits were scheduled each week for two hours at a time. Video calls on non-visit days continued as well. M.M. was asked to let the Manager know one hour before the visit to confirm that it would be going ahead.

On several occasions she did not do so resulting in the visits being cancelled. On other occasions she was not prepared for the visit when Z. arrived at her home. Problems around the video calls were noted as well. M.M. would either not call, call outside the designated times or call but be distracted by individuals who were present with her when she was speaking to Z. Given these concerns and in light of Z.’s young age and

her perceived lack of interest in the calls, the Manager decided that video calls would no longer occur every day. [ 16 ] Despite the challenges, the Manager remained open to the idea that M.M. and Z. could be reunited. On September 15, 2020, it amended its application to seek a six-month temporary custody order instead of a continuous custody order. M.M. consented to the order which contained a number of conditions.

M.M. was expected to attend counselling to address the issue of substance abuse and assist her in learning strategies to cope with stress, to work with the family support worker, to meet with the Manager twice per month, to be available and prepared for her access visits and to attend all of Z.’s medical appointments. [ 17 ] As in the past, M.M. missed a number of visits with Z. after the order was put in place. M.M. continued to miss visits by failing to call an hour in advance to confirm that the visit would go ahead as scheduled. Other visits did not proceed as a result of M.M. forgetting the schedule. Ms.

Hynes, the family support worker, indicated in her affidavit that M.M. struggled with keeping track of Z.’s appointments and visits. To assist, Ms. Hynes provided M.M. with a calendar and appointment card reminders but she noted that M.M. often misplaced them. [ 18 ] On February 10, 2021, the Manager applied for another temporary custody order. M.M. consented to the application; however, as the Manager continued to have serious concerns about M.M.’s parenting abilities, on May 4, 2021 it filed the present application seeking a continuous custody order.

The Manager’s application [ 19 ] At trial, the Manager summarized the various concerns which it felt supported its request for a continuous custody order. Those concerns are as follows: 1. M.M.’s lack of attendance at visits/medical appointments [ 20 ] The Manager submits that M.M. lacks the commitment to parent Z. It points to the number of missed visits as an example. Based on a document prepared by social worker, Chelsea Butler, from January 2020 to December 2020, M.M. missed 39 visits out of the 102 that were scheduled. She also missed 82 FaceTime video calls.

From January 2021 to December 2021, M.M. missed 46 visits out of a total of 139 scheduled; 28 of the visits did not proceed because M.M. did not call to confirm that she was available; and 18 visits were cancelled by M.M. because she was not feeling well or she was dealing with personal issues. M.M. also failed to attend 8 of Z.’s 24 medical appointments. [ 21 ] On cross-examination, Ms. Parsons acknowledged that M.M. cancelled some visits due to sickness and the death of her mother. M.M. also experienced the loss of a very close friend. Ms.

Parsons testified that she encouraged M.M. to explore grief counselling but she never did. 2. Visits with Z. [ 22 ] The social workers involved with M.M.’s file indicated that although some of the visits between M.M. and Z. were positive, they described the majority of M.M.’s visits with Z. as negative. One concern was M.M.’s unrealistic expectations of what a child of Z.’s age could do. M.M. expected Z. to be able to blow her own nose, chew with her mouth closed, find her own toys, tidy up without assistance, know not to interrupt and be perfectly toilet trained all before she was three years of age.

When Z. did not meet her expectations, M.M. frequently became impatient as demonstrated by her tone, facial expressions and language. If Z. had a toileting accident, she was a “bad girl”. If Z. interrupted, she was “rude”. If she was irritable, she “had an attitude” or was “saucy”. M.M. often expected Z. to play independently. For example, on one occasion when Z. asked her mother to read her a book, M.M. refused and directed Z. to ask the social worker to do it. On another occasion, Z. requested the social worker to play blocks with her.

The social worker redirected her to M.M. but M.M. did not respond to Z.’s request as she was too engaged with her phone. [ 23 ] A second concern related to the nature of the interaction observed between M.M. and Z. on many occasions. The interaction was described as unnurturing and not child-focused. As well, there were limited displays of affection. While M.M. did at times give Z. kisses and hugs, the social workers observed M.M. frequently speak to Z. with a harsh tone and in an inappropriate manner considering her very young age.

For example, it was reported that on one occasion when Z. was scratching at the corner of the coffee table, M.M. said to her in a stern tone, “Get out of that. Go sit in your chair or I’m gonna kick your butt”. Z. would have been less than two years of age when this incident occurred. On other occasions when M.M. was trying to settle Z. for a nap she was heard saying such things as: “Go to sleep right now”, “That’s enough” and “You are being so bad today”. Ms. Parsons and Ms. Butler testified that M.M. would regularly refer to Z. as the “demon child” or “a brat”.

On cross-examination it was suggested that M.M. had made these comments playfully and in jest. Both Ms. Parsons and Ms. Butler disagreed. [ 24 ] Another example observed by social workers of poor interaction between M.M. and Z. was her frequent irritation directed at Z. concerning the names Z. used for the foster mother and M.M. Z. called the foster mother “Mom” and M.M. “Mommy”. M.M. wanted Z. to refer to her foster mother by her first name, D., and not as Mom. When Z. did not do this, M.M. became visibly heightened and annoyed. Ms.

Butler reported that on September 24, 2021, she was present at a visit when Z. referred to the foster mother as “Mom”. In her affidavit signed January 31, 2022, she describes the following exchange at paragraph 240: 240 THAT on September 24, 2021, [M.M.] was demonstrated to ignore CSSD suggestions as when [Z.] referenced the foster parent as “mom”. [M.M.] raised her voice and firmly stated “No! Her name is [D.].” [M.M.] then yelled “I AM MOMMY.” I observed [Z.] to immediately cry and vocalise “okay [D.], I say [D.]” while [M.M.] continued to scold her.

I was required to interject and change the topic of discussion asking [Z.] if she was “ready for an adventure” as [Z.] was crying very hard and [M.M.] continued to scold her and not exhibit any form of comfort. [ 25 ] A similar incident occurred during a visit at the foster mother’s home on December 1, 2021. Ms. Butler wrote at para. 266 of her affidavit: 266 THAT on December 1 st 2021, a visit was held between [M.M.] and [Z.] in the foster home. During this visit, I observed [Z.] to state

“thank you mom” to [Ms. P.] when retrieving a spoon. [Ms. P.] replied, “you are very welcome and you have such good manners.” [Ms. M.] interjected and stated, “and it’s [D.], I’m mom.” [Z.] corrected [Ms. M.] stating “no you mommy.” Later on this date, [Ms. P.] noted she was stepping outside for a moment. [Z.] asked, “where’s mom” to which [Ms. M.] stated “[D.] is outside. [Z.] asked, “mom be two minutes?” which [Ms. M.] firmly stated [D.] will be two minutes” emphasizing [Ms. P.’s] name. [Z.] snapped back at [Ms. M.] “[D.] IS Mom” to which [Ms. M] argued, “NO [D.] is [D.]”. I interjected and explained to [Ms.

M.] that at this time we are not correcting [Z.’s] preferred word choice for the foster parents or [Ms. M.] as it causes [Z.] to become upset and negatively impacts the quality of the visit. [Ms. M.] challenged this and did not agree. [ 26 ] The foster mother reported that M.M. reacted in this fashion to Z. calling her Mom on other occasions when M.M. was visiting Z. in the foster home. The foster mother advised that M.M.’s reaction confused Z. and that Z. expressed anxiety about using the wrong name. [ 27 ] Ms.

Parsons testified that the Manager had hoped that M.M. would find ways to cope when she became frustrated through counselling. M.M. did in fact meet with a mental health counsellor on 10 occasions. The counsellor indicated in a letter dated August 26, 2021 that there had been two treatment goals: to learn about anxiety and practice coping and stress management skills in order to tolerate stress. He reported that M.M. was engaged in the sessions and ultimately was successful in developing calming strategies and a distress tolerance action plan.

M.M. reported that her calming strategies were going outside for a cigarette and splashing water on her face. Ms. Parsons confirmed that the counselling was helpful in that on occasions M.M. recognized that she was becoming frustrated and would go outside for a cigarette; however, the success of this coping strategy varied from visit to visit. [ 28 ] There were also concerns with supervision during some of the visits. Ms. Butler indicated in her affidavit that during a visit in September 2021, Z., who was only two at the time, said that she needed to use the bathroom. M.M. told her to go to the bathroom.

After five minutes Ms. Butler suggested to M.M. that she do a verbal check to ensure Z. was all right. M.M. did not do so. Ms. Butler reported that approximately 11 minutes elapsed before Z. said she was done. During that 11 minute period, M.M. did not complete a verbal or visual check to ensure Z. was safe. [ 29 ] A similar incident occurred in November 2021. Ms. Butler observed M.M. leave Z. in a bedroom for five minutes while she went outside to have a cigarette. During this period of time, Z. was out of M.M.’s view. [ 30 ] On cross-examination, Ms.

Parsons was asked if the Manager had considered requesting that M.M. undergo a parental capacity assessment. Ms. Parsons testified that the Manager had not considered it due to the fact that there was no evidence brought forward to suggest that M.M. was either cognitively delayed or suffering from a mental illness which was impacting her ability to parent. [ 31 ] In the fall of 2021, Z. began refusing to go to M.M.’s house for a visit. To ensure that contact between M.M. and Z. continued, visits were moved to the foster home instead.

After M.M. attended a visit at the foster home on December 1, 2021, the foster mother contacted CSSD to advise that she did not want M.M. to attend any further visits in her home because she was becoming confrontational. As of December 3, 2021, all visits between M.M. and Z. were scheduled to take place in the community. On January 25, 2022, M.M. asked that her visits be reduced to twice a week to accommodate her employment as a cleaner. [ 32 ] Ms. Parsons testified that since January 18, 2022, Z. has refused to attend any visits with M.M.

She noted that on one occasion she hid away when a social worker attended the foster home. Ms. Parsons advised that CSSD has taken the position that it is not in Z.’s best interests to force her to go to any further visits. [ 33 ] Ms. Parsons testified that throughout the course of the file M.M.’s access

schedule has decreased in frequency and duration. Some changes were made at the request of M.M. Other changes were made by the Manager in response to the number of visits missed and the quality of the visits that took place. Some aspects of the access

schedule have remained the same. Since Z.’s removal in June 2019, all access with her mother has been supervised. 3. Concerns surrounding drug and alcohol use [ 34 ] There were occasions when the foster mother believed M.M. was under the influence of alcohol. On August 1, 2019, M.M. contacted D.P. at 9:10 p.m. to ask where Z. was. D.P. advised Ms. Parsons that M.M. was not making any sense. D.P. reminded M.M. that she had just had a visit with Z. earlier that day. [ 35 ] On August 10, 2019, M.M. was invited to visit with Z. who was at a campground with D.P.

D.P. advised the Manager that M.M. only stayed for 15 to 20 minutes and she appeared to be under the influence of something. The following week, CSSD spoke to M.M. about the incident. She acknowledged that she had been feeling a little “high” because she had taken medication that she been prescribed for back pain with an energy drink. [ 36 ] D.P. also reported that on September 14, 2019, M.M. cancelled her visit with Z. due to the fact that the taxi which had been ordered was unable to pick her up. Later that same day, M.M. video called Z. D.P. advised CSSD that M.M. was incoherent at times.

M.M. told Z. that she could call her mother a “jerk” and “asshole” because “she was not fit tonight”. Subsequent to that call, CSSD was contacted by the taxi company who advised that a driver had attended M.M.’s home but when he observed her to be under the influence, he suggested she cancel her visit. [ 37 ] On September 29, 2020, D.P. reported that she suspected that when M.M. had a FaceTime with Z. the day before, she was impaired. D.P. stated that M.M. was crying during the call.

When CSSD approached M.M. with this concern, once again M.M. attributed her behavior to taking her back medication with an energy drink. [ 38 ] In April and May of 2021, CSSD received several referrals alleging that known drug users were attending M.M.’s home and leaving the premises a short time later. They also viewed electronic messages purportedly sent to M.M. from individuals looking for drugs. Although M.M. denied any drug use, she agreed to complete random drug testing. M.M. advised that she would get a requisition from her doctor for same. When Ms.

Parsons followed up with M.M. about a month later, she had yet to receive the requisition. Ms. Parsons once again spoke to M.M. about the referrals indicating that known drug users were attending her home. M.M. denied this and

stated that they were going into the neighbor’s house. When asked to explain the electronic messages requesting she obtain drugs for people, M.M. alleged that someone had taken her phone and sent the messages. To date, M.M. has not provided CSSD with a requisition for drug testing.

Summary of the Manager’s Position [ 39 ] Ms. Parsons testified that despite the provision of counselling services, parenting sessions and regular discussion with M.M. to provide support and guidance, the concerns that the Manager had at the time of Z.’s removal on June 15, 2019 have not been abated. As a result, it is in Z.’s best interests that she be placed in a permanent home where she can feel safe and settled. Ms. Parsons testified that M.M. has never, throughout the course of the file, provided the Manager with the name of anyone who she would like to be assessed as a possible placement for Z.

In addition, none of M.M.’s relatives have presented themselves as an option. The Manager is of the view that it is in Z.’s best interests that she remain with her current foster family. Z. [ 40 ] Z. is three years of age. Ms. Ezekiel testified that she is a healthy and happy child who, despite requiring some physiotherapy as an infant, is now meeting all of her developmental milestones. Z. has been described as fiercely independent. [ 41 ] Z. has only lived with her mother for a period of four months since birth. She has been living with her current foster parents since July 16, 2019. Ms.

Ezekiel indicated in her affidavit that the foster placement has provided Z. with a consistent and nurturing environment. She testified that Z. is thriving and has developed a strong bond with her foster family. Her foster parents are committed to caring for Z. on a long-term basis and are open to discussing adoption. EVIDENCE PRESENTED BY M.M. M.F. [ 42 ] M.F. testified that he and M.M. have been friends for five years. He indicated that recently the nature of their relationship has changed. About three to four months ago they decided to become a couple.

He hopes that this is the beginning of a long-term relationship. [ 43 ] M.F. has been regularly employed outside this Province as a heavy equipment operator on a rotational basis. He is currently off work due to recent hip replacement surgery. M.F. testified that he will be going back to his previous job in Baffin Island on a two-week on/two-week off basis. [ 44 ] M.F. indicated that he does not use drugs and drinks alcohol a couple of times a year. He stated that he has never seen M.M. use drugs although she did advise him that she had addiction issues nine to ten years ago.

M.F. maintained that if he thought M.M. was using now, he would not be in a relationship with her. [ 45 ] M.F. testified that he does not have any children of his own; however, he played a significant role in raising his former wife’s children. He noted that he has not had contact with the children since he and his wife separated several years ago. M.F. is aware of the current situation involving Z. Since he and M.M. have become a couple, he has been FaceTiming with Z. Ideally, he would like M.M., Z. and himself to become a family. He acknowledged that he has never attended a visit with M.M.

M.F. stated that M.M. loves Z. and has worked hard to have Z. return to her care. [ 46 ] On cross-examination, counsel for the Manager asked M.F. if he had made any contact with CSSD to offer himself as a support person for M.M. He stated that he had not. He advised that M.M. had asked him to obtain a copy of his criminal record but he “did not get around to it”. M.M. [ 47 ] M.M. testified that although she was born in Ontario, she has lived in Newfoundland and Labrador for the past nine years. She moved to her present location about three years ago to be closer to her daughter, S. and S.’s children.

M.M.’s plan is to remain in this Province. [ 48 ] As noted earlier in this decision, M.M. has two other children in addition to S. and Z. N. is 21 and P. is 10. Both reside in Ontario. M.M. does not have any contact with either child. [ 49 ] M.M. testified that she has a high school education and completed a program in home care. She has worked in that capacity in Ontario and in Newfoundland and Labrador. [ 50 ] M.M. told the Court that she had a significant cocaine and alcohol issue about nine years ago. She indicated that she was using every day.

At times she would go “missing in action” and would not even answer her phone. M.M. acknowledged that her addiction had a negative impact on her family and employment. She stated that she moved to this Province in hopes that a change of environment would help her overcome her addiction. She went to AA and completed the in-patient program at Humberwood. Under cross- examination by counsel for the Manager, M.M. confirmed that she had never at any time prior to trial advised CSSD that she had completed the Humberwood program. [ 51 ] M.M. testified that she is not using drugs currently nor is she selling drugs.

She indicated as well that she does not consume alcohol. When asked to explain why CSSD have received reports that she appeared under the influence, M.M. advised that she had been prescribed Lorazepam for anxiety and had been taking it with energy drinks. She stated that the combination made her feel and look intoxicated. She denied being under the influence of alcohol on any of the occasions noted by social workers or D.P. [ 52 ] M.M. testified that she takes no issue with undergoing drug testing. She advised that she had contacted her doctor who had

moved his practice from her community to Baie Verte. M.M. stated that despite repeated calls to his office since May 2021, he has notresponded to her request for a requisition for drug testing purposes. [53] With respect to her visits with Z., M.M. testified that she really looks forward to them. She and Z. go for walks, blow bubbles,read books and watch movies. She acknowledged that some visits are negative. M.M. attributed this to the social workers correcting herparenting in front of Z.

As well, she was irritated by the fact that some workers were occasionally in her home barefoot or without amask even though she had asked them to refrain from doing so. M.M. indicated that any frustration she has exhibited was directed at theworkers, not Z. She denied ever calling Z. a “brat” or a “demon”. She advised that she only refers to Z. with terms of endearment. Sheadmitted that she did drop a few “f” bombs when Z. was younger but denied ever swearing at her.

With respect to the social workers’testimony that she spoke to Z. with a harsh tone of voice, M.M. advised that this was because she is from Ontario not Newfoundland andLabrador. She felt that the social workers were misinterpreting her Ontario accent and tone. [54] M.M. acknowledged that she has missed a number of in-person visits with Z. for illness, Covid and issues in relation to herdaughter, S. She also testified that the sickness and subsequent deaths of her mother and a very close friend had greatly impacted hermental health.

M.M. reported that both individuals had played a significant supportive role in her life and that she was an “emotionalwreck” after their deaths. M.M. agreed, however, that she did not obtain any counselling to assist her with grief. [55] M.M. testified that she wants to see Z. more than twice a week for three hours. She does not agree with the present approachbeing taken by the Manager with respect to Z.’s refusal to attend visits since January 18, 2022.

M.M. believes that Z. is afraid to leavethe foster home for two reasons: first, she views the foster family as her family; and second, she is concerned that if she leaves the homeher foster parents may start to love the other foster child in the home more. Whatever the reason, M.M. feels the Manager has caused thebond between her and Z to break. She testified that she has been treated unfairly by CSSD from the outset. [56] On cross-examination, M.M. was asked to verify whether there had been three visits with Z. arranged since January 18, 2022.M.M. agreed that there had been.

She acknowledged that she cancelled one, forgot to phone in advance to confirm the second visit andcancelled the third due to her work commitments. M.M. commented, however, that the cancelled visits do not explain the fact that Z. nolonger wants to visit with her. [57] M.M. wants the Manager to ensure that her visits with Z. will continue. She would like the Court to order a third temporarycustody order so that she and Z. can have more bonding time in M.M.’s home. She is prepared to start grief counselling, undergo aparental capacity assessment if requested and cooperate with drug testing.

If the Court decides that a third order is not in Z.’s bestinterests, she would like her two sisters, one of whom lives in Ontario while the other lives in Quebec, assessed as potential placements.M.M. also asked the Court that Z. be moved to another foster home immediately. She believes that the foster parents are intentionallyencouraging Z. to view them as her family thereby undermining M.M.’s role in Z.’s life. THE APPLICABLE LAW [58] Court approved state interference should be the exception and not the norm.

In Director of Child, Youth and Family Services v.J.(J.) (1993), (NL SC), 113 Nfld. & P.E.I.R. 120, [1993] N.J. No. 305 (Nfld. U.F.C.), Green, J., as he then was, statedat para. 7: 7 Generally speaking, responsibility in our society for the care and upbringing of children is left to the family. It is not stating it toostrongly to say that it is still regarded as a fundamental value of our society that the development and upbringing of children by theirparents should be fostered.

That being so, state interference with the parent-child relationship should be justified only in the exceptionalcase where the natural parenting relationship cannot be fulfilled and in the words of Noonan, J. in Re Fitzpatrick [1991] U.F.C.

No.91/0058 filed April 19, 1991, (unreported) "the child's living circumstances have been below the standard normally tolerated in our localsociety." One has to be careful not to authorize state intervention whenever it is perceived that the state can do a better job than theparent. [59] The Manager bears the onus of satisfying the Court on a balance of probabilities that the order it seeks is warranted under theChildren, Youth and Families Act, S.N.L. 2018,

Chapter C-12.3 (hereinafter referred to as the “Act”). The issue that the Court mustdecide is whether Z., based on the present circumstances, is in need of protection as defined in s. 10 of the Act. If the Court determinesZ. is in need of protection it must then decide the appropriate order. This two-step analysis is to be performed bearing in mind thepurpose and principles of the Act as outlined in sections 8 and 9. The purpose of the legislation is to promote the safety and well-beingof the children and youth who are in need of protective intervention.

Its provisions are to be interpreted and administered in accordancewith the principle that the overriding and paramount consideration in every decision made by the Court shall be the best interests of thechild. ANALYSIS Is Z. a child in need of protection? [60] At the outset I would note that M.M. conceded that Z. is a child in need of protection. That does not, however, relieve the Courtfrom its duty to satisfy itself that the Manager has proven its case.

I must therefore complete the first step in the analysis: is Z. a child inneed of protection? [61] The Manager has sought a finding that Z. is a child in need of protective intervention as defined in s. 10(1)(

a) and (

n) of theAct. Those sections state: 10.

(1) A child is in need of protective intervention where the child

(

a) is being, or is at risk of being, physically harmed by the action or lack of appropriate action by the child’s parent; (

n) has been left without adequate supervision appropriate to the child’s developmental level [ 62 ] After considering all of the affidavit evidence and oral testimony, I am satisfied that M.M. has never physically harmed Z. to date. I am, however, concerned about the extent to which she becomes frustrated and overwhelmed when she is caring for Z.

While she has never exhibited any physical aggression towards her in the presence of social workers, I do worry that the coping strategies she has learned may not be sufficient to ensure Z.’s safety when M.M. becomes increasingly irritated. [ 63 ] I am also worried that Z. may be at risk of physical harm as a result of insufficient supervision. There have been several examples of this presented. One occasion occurred on June 14, 2019, leading to Z.’s removal on June 15, 2019. The events on that night, which were uncontradicted, are very concerning. M.M. was caring for Z. while under the influence of drugs.

That in itself illustrates very poor judgement. The situation became even more troublesome when she allowed someone else to take Z. to his/her home. Fortunately for Z., the referral source was concerned enough about her welfare to call CSSD. Had he/she not, Z. was certainly at risk of physical harm. [ 64 ] Another example of inadequate supervision occurred during a visit in September 2021 when M.M. allowed Z. to be in the bathroom for approximately 11 minutes without checking on her.

A further incident of inadequate supervision occurred in November 2021 when M.M. left Z. unattended for 5 minutes when she went outside. As M.M. did not address either of the two incidents in her testimony, I am left with the Manager’s evidence only. Obviously, it is not appropriate to leave a two-year-old without supervision under any circumstances. Life altering accidents can occur in a split second. When I consider all of the evidence in its totality, I am satisfied that Z. is a child in need of protection as defined in s. 10(1) (

a) and (n). [ 65 ] While the Court was only asked to consider s. 10(1) (

a) and (

n) in determining whether Z. is a child in need of protection, I would be remiss if I did not address s. 10(1) (

c) of the Act . That

section defines a child in need of protection as one who is being, or is at risk of being, emotionally harmed by a parent’s actions, failure to act or neglectful conduct. Section 10(2) sets out a number of behaviours a child who is emotionally abused may exhibit. Two such behaviours are significant anxiety and significant withdrawal. Section 10(3) provides examples of parental conduct which may lead to emotional harm in a child.

Such conduct may include deprivation of affection, subjecting the child to inappropriate criticism or allowing a child to live in a situation where the parent is an abuser of alcohol or drugs. [ 66 ] The evidence presented in this case was replete with examples of parental conduct that could cause emotional harm to a child. For example, the evidence revealed that M.M. regularly chastised Z. for such things as calling her foster mother “Mom”.

While I can understand why hearing Z. call someone else “Mom” may be distressing to M.M., her insistence in engaging in heated discussions with a then two-year-old was insensitive and inappropriate. There was also evidence that M.M. frequently referred to Z. using inappropriate labels. M.M. denied any name calling and suggested that if she did refer to Z. by something other than her name, it was done affectionately and in jest. I do not accept M.M.’s testimony in this regard. Every social worker who has been involved with this file testified that the words M.M. chose were not terms of endearment.

They also noted that when M.M. used the labels she was not happy and upbeat but rather visibly irritated with Z. Z.’s pediatrician as well raised concerns about the nature of the interaction between M.M. and Z. The evidence also revealed that while M.M. was affectionate to Z., such displays of affection occurred infrequently. [ 67 ] There was no medical or psychological evidence presented to establish that Z. is or has been emotionally harmed by her mother’s conduct. Given her young age, that is not surprising. She has, however, recently exhibited anxiety about attending any further visits with her mother.

In addition, I believe I can conclude that ongoing name calling or criticism may impact a child’s mental health going forward. Based upon my review of all the evidence, I am satisfied that Z. is a child in need of protection as defined in s. 10(1) (

c) of the Act . What is the appropriate order? [ 68 ] The Act allows a maximum of two temporary orders in the life of a child. Two temporary orders have been granted in relation to Z. A third order is available in exceptional circumstances and where the parent has demonstrated that he or she may reasonably be expected to resume custody of the child within a reasonable period of time. I therefore have three options in the current circumstances: a supervision order, a third temporary custody order or a continuous custody order. In exercising my discretion I must keep Z.’s best interests firmly in mind.

In determining her best interests I must consider, among other things, her safety and well-being, her emotional needs, her need for stability and the importance of maintaining the family unit, if at all possible. [ 69 ] Based upon my review of the evidence, the purposes of the Act and the best interests of the child principle, I have concluded that I cannot return Z. to M.M.’s care under a supervision order. The evidence satisfies me that to do so would place her at risk of physical and/or emotional harm. [ 70 ] I have given significant consideration to the appropriateness of a third order in this case.

If I were to grant such an order, the Act provides that due to Z.’s age it can be no longer in duration than three months. M.M. has asked the Court to give her those three months to show the Manager that she is capable of providing Z. with a safe and loving home. I have considered her request but it became apparent as I listened to M.M. that she has little to no insight into why this matter is before the Court. She refuses to acknowledge any parenting shortcomings on her part. She genuinely believes that the Manager’s intervention has been unwarranted and unfair.

M.M. is unable to act in a child-focused manner and shows no insight into how her choices negatively impact Z. Her request to the Court that Z. be removed from the only home that she has ever known is a glaring example of her inability to put Z.’s needs ahead of her own. While I accept that M.M. wants to parent Z., when I consider all of the evidence and in particular M.M.’s lack of insight, lack of supports, her parenting history and the passage of time since Z.’s removal date, I am not persuaded that exceptional circumstances are present in this case which would warrant a third order.

I am also not satisfied that M.M. can resume custody of Z. within a reasonable period of time. [ 71 ] Children are entitled to live in a stable, loving and safe environment. They should not have to wait until their parent learns how

to parent. Z. has been in foster care since she was five months old. Her foster family is devoted to her. Based on all of the evidence, I have concluded that only a continuous custody order will ensure that Z. has a permanent home with people who are ready and able to care for her and ensure that her physical, emotional and developmental needs are met on a long-term basis. I therefore order as follows: a. Z. is a child in need of protection as defined in s. 10(1) (a), (

c) and (

n) of the Act . b. Pursuant to s. 32(2)(d), Z. shall be placed in the continuous custody of the Manager. c. M.M. may have contact with Z. at the discretion of CSSD and in accordance with Z.’s best interests. _____________________________ Laura A. Mennie Justice