Décision

Protection de la jeunesse — 1884

2018 QCCQ 248

 

COURT OF QUÉBEC
CANADA
PROVINCE OF QUÉBEC
DISTRICT OF			[...]
LOCALITY OF [...]
Youth Division
No.		640-41-002106-174
DATE:	January 18, 2018
______________________________________________________________________
PRESENT: THE HONOURABLE LUCILLE BEAUCHEMIN J.C.Q.
______________________________________________________________________
IN THE MATTER OF
X, born on [...], 2011
Child ______________________________________________________________________
[SOCIAL WORKER 1], youth protection worker, duly authorized by the Director of Youth Protection A
Applicant
and
A
Mother
______________________________________________________________________
JUDGMENT
(section 38, Youth Protection Act, CQLR, c. P-34.1)
______________________________________________________________________
WARNING: The Youth Protection Act prohibits the publication or broadcast of information allowing a child or the child’s parents to be identified. Every person who contravenes this provision is guilty of an offence and is liable to a fine (sections 11.2, 11.2.1 and 135 Y.P.A.).

[1]      The Director of Youth Protection (the “Director”) submitted to the Court an application to have the security or the development of the child declared in danger because his parents do not carry out their obligations to provide him with care, maintenance and education or do not exercise stable supervision over him, while he has been entrusted to the care of a foster family for one year.

[2]      The child’s lawyer, Mtre. Neptune, submitted to the Court an application to have the child’s rights declared to have been wronged by the Director.

[3]      The parties agreed to proceed first on the application submitted by the Director and accepted that the evidence filed in that hearing would be transferred as evidence into the hearing on the application submitted by Mtre. Neptune.

[4]      The parties also agreed that a single judgment would be written regarding both applications.

[5]      The Commission des droits de la personne et de la jeunesse was served with the application to have the child’s rights declared wronged and did not appear.

[6]      The Director and Mtre. Neptune alleged a long series of facts. The present judgment refers to those facts.

[7]      The Director recommended that the Court entrust the child to B until September 30, 2018, and order several assistance measures, including follow-up by social services for the same period. The measures recommended by Mtre. Neptune appear at paragraph 1 of this judgment.

[8]      The mother admitted all the facts alleged by the Director, except one, to which we will refer in the corpus of this judgment. The mother agreed with the recommendations.

[9]      The Director and the mother admitted the facts alleged by Mtre. Neptune in her application and they did not challenge the measures she requested.

 

Evidence

[10]   The evidence shows the following facts. The child is six years old. Three women are involved in his life: A, his biological mother, C, an adoptive mother, and B, the foster mother with whom he has been living since the age of two months. All of them testified. Here is what happened in the child’s life regarding his three mothers.

 

The child’s situation up-North

[11]   Ms. A and Ms. C[1] were working together when Ms. A became pregnant with X. Ms. A wanted an abortion, while Ms. C wanted the child. The child was born on [...], 2011, in City A.

[12]   On February 14, 2011, Ms. A gave the child to Ms. C through traditional adoption because she was struggling with drinking and conjugal violence problems. Ms. A chose Ms. C as an adoptive mother because she wanted to maintain contact with her child and see him grow up.

[13]   On May 18, 2011, after the traditional adoption, a birth certificate was issued by the Directeur de l’état civil. That birth certificate indicated no father and two mothers: Ms. A and Ms.  C.[2] That was a mistake by the Directeur de l’état civil. Another birth certificate was issued on December 30, 2013, indicating an undeclared father and one mother, Ms. C, the adoptive mother. No one in Court had that birth certificate before Ms. B’s testimony. She had it in hand. Copy of that birth certificate was filed as exhibit E-1.

[14]   The evidence is contradictory regarding what happened on March 21, 2011. On that date, Ms. C brought the child to the youth protection service, in City A. According to Ms. A’s testimony, she was the one who gave the child to the Director. The Progress Notes dated March 21, 2011, indicate the following: “came to give us her baby X, she doesn’t want to be involved anymore, not to be in trouble with A, biological mother. After discussion, she even refused to keep him until we find a foster family. We took signalement”. [3](sic) The child was entrusted to D.

The undersigned concludes that Ms. C gave the child to the Director.

[15]   According to the Progress Notes dated March 20, 2011, Ms. C asked the social worker, [Social Worker 2], to find a family out of City A, otherwise there should never be in peace with Ms. A in town. Ms. C did not want the child anymore because there was fighting between her and Ms. A. Ms. A was drunk every night and kept calling Ms. C. Ms. [Social Worker 2] objected to Ms. C’s request: “I go on my idea that she is involved with X since 2 months now and we have to control A to let them in peace, not the baby to be moved.” (sic)

[16]   On March 22, 2011, Ms. C came to the Director’s office and said: “Here, I don’t want him anymore. I give up.” She left as soon as she gave the baby to the social worker. Two youth workers put pressure on Ms. C to keep the baby.

[17]   On March 30, 2011, Ms. C called the social worker. “She wants us to pick up the baby”.  “On the road, we saw E and asked her if she can foster this client and she said she can. So, we took the client to her place.”

[18]   On March 31, 2011, “E called saying that she can’t take client anymore because she don’t have a baby sitter”(sic), report the Progress Notes. “We found F to keep client for the night, but she wasn’t able to take him for the time.”(sic)

[19]   On April 1, 2011, the youth worker took the child from the daycare and “took him to [Social Worker 3]’s place”. “The client will be staying with H and at 6:00 a.m. on April 4, 2011, she called to say that she can’t take her anymore.” (sic)

[20]   The child was taken and brought to [Social Worker 3], the social worker. “We found someone who can take the client for the night. Then, the next day, we forgot that we had to get him. So, I went to ask if she can take him one more night and she agreed.” (sic)

[21]   On April 6, 2011, “[Social Worker 3] is going to babysit the client.”

[22]   From March 21, 2011, to April 17, 2011, the child was placed in eleven different foster homes in City A. In her testimony, Ms. C stated that she did not know that the child would be transferred from one place to another so many times.

[23]   Parallel Progress Notes were written on March 30, 2011, by the youth worker [Social Worker 4]:

(Ms. [Social Worker 4]) called [Social Worker 5] regarding the client and the trouble workers have been having to place the child. . . Everyone brings him back as they complain that he cries a lot.  Others have been unwilling to foster the child because they said that the mother have been threatening them. [Social Worker 5] asked if the child has any medical problem. . .  Does the child have any medical problem, specific follow-ups, medical care, how to administer his medication or medical care, the risk of having the child, and in relation to his health. . . Worker told her that right now one family have expressed interest in the child but they are not Inuk. . . She said the worker should talk to the mother and ask if she does not mind if a non-Inuk adopts her child. . . Also if she says ok, then worker should ask for the criminal record of the person. Provide them with consent to release. In regard to this, the worker should ask for information on all of the places that the person ever lived and request for medical and police information.

(sic)

[24]   That same day, the youth worker was informed that the child had a Long QT syndrome. His medication must be refrigerated and given three times daily. No one informed any foster mothers of the child’s medical needs.

[25]   The youth worker asked Ms. A if anyone in her family might be interested in having the child. The biological mother’s suggestions were checked. No one could take the child.

[26]   On April 5, 2011,[4] the Progress Notes indicate the following:

Biological mother: Ideally she would like the child to be placed in a different village so that it is not so hard for her. According to the biological mother, would not mind if a non-Inuk took the child as he is half Caucasian.

Adoptive mother: does not wish to speak to the DYP.

[27]   Nevertheless, on April 7, 2011, Ms. [Social Worker 4] wrote in the Progress Notes:

Intervention was made so that C wants keep the baby at the end of the intervention (illegible). She refused the baby will stay with DYP.

(sic)

[28]       On April 8, 2011, the youth worker called “the adoptive mother to get her authorisation for a DYP worker to sign the authorisation for medical treatment. She agreed.”

[29]   On April 9, 2011, “B called worker and asked when the child was going to come to her house. Worker informed her that the child was medivac yesterday and that we would get back to her once the child was back in town.” (sic)

[30]   On April 11, 2011, in the context of a conversation with the doctor, the youth worker wrote:

Worker informed her that the child was going to be taken to City B to be placed. . .  She said that she would like to medivac him. She informed the worker that the flight would leave at 5:30 and it was 5:15.

 

The child’s arrival in City B

[31]   On April 17, 2011, the Director took immediate protective measures and placed the child in foster care in City B with Ms. B, who was looking forward to adopting him. That placement was supposed to be for thirty days, but Ms. B never heard from the Director afterwards. On May 9, 2011, the Director closed the file. The child was still under Ms. B’s care.

[32]   Ms. B stated that, in April 2011, she was in City C for work. On April 6, 2011, she met with [Social Worker 6] from the DYP and told her she wanted to be a foster family. Ms. [Social Worker 6] explained to her the steps she had to take. The next morning, someone from the DYP service called Ms. B and told her that they had a two-month-old baby. The person offered her the baby. Ms. B understood that it would be for thirty days. Later, she was assessed as a foster family but never received the results of this assessment. She nevertheless received the fostering allowances. She did not, however, remember when she began to receive it. Today, the Director recommends that the child be entrusted to Ms. B and that, as soon as the evaluation for foster family is done, the child be placed in a foster family with Ms. B. This means that, in 2011, the child was entrusted to Ms B without any evaluation of Ms. B’s environment.

[33]   On April 17, 2011, Ms. [Social Worker 4] flew from City D to City C, with a ten-minute layover in City B. During that period, she gave Ms. B the baby at the airport. Ms. [Social Worker 4] did not mention anything regarding the child’s medical condition and she did not have the doctor’s prescription with her. After ten minutes, she boarded and left. Ms. B was given the child’s social insurance number and his baptism certificate.

[34]   There had been no foster evaluation of Ms. B, no DYP measures and no Court order in the child’s file from his birth until September 2017.

[35]   One month later, Ms. B called Ms. [Social Worker 4] to get information regarding the duration of the child’s placement. She was then told that the placement would be for more than thirty days. The first time Ms. B heard about a Court hearing was in September 2017. 

[36]   When she received the child, Ms. B knew that the child had a medical condition and needed medication. On May 20, 2011, the prescription was faxed from City A at Ms. B’s request. She had a first appointment with the pediatrician in June 2011 and afterwards, the child saw the pediatrician once a year. It took a while before the child’s medical file was transferred from City A to City B. Since he is in City B, the child sees a cardiologist twice a year for follow-up.

[37]   On April 22, 2011, the youth worker called the foster mother, who was already identified as the adoptive mother in the Progress Notes.

[38]   In December 2011, a new social worker appointed to the case called Ms. B and stated that she would have to look at the legal status of the situation. After that, no one called Ms. B until April 13, 2013. Ms. [Social Worker 4] asked for pictures of the baby for the biological mother. No one from the DYP came to Ms. B’s place until 2016. The first meeting Ms. B had with a worker from the DYP service was in February 2016. It was with [Social Worker 7]. 

 

The “reverse” adoption process

[39]   On April 11, 2011, Ms. C gave the child back to Ms. A for the child to be adopted back by his biological mother. However, the traditional adoption process was never completed because the Makivik Corporation did not receive the completed form. This adoption took place in the following context, as reported in the Progress Notes dated March 12, 2015, when Ms. A went to the Director’s office to talk about something else.

A prefers the foster mother to adopt this child. A remember that C[5] signed the papers for adoption to C, but one day, A was baby-sitting for C and she just found out that C went to jail and she does not know the reason. She went to jail and then C gave up the baby because she thought she called the Police for C but she had no idea that she was even in jail. Ms. C signed back the adoption papers to give up on him and then Ms. A did not want him to go back to her. That C blamed her from getting to jail and give up on him.

. . .

A does not want the baby under C because she gave up on him that X’s birth certificate says the mother is C but A does not like that.

(sic)

[40]   On August 1, 2011, Ms. A signed a general consent to adoption for the child. The Director’s plan was that Ms. B would adopt the child. However, Ms. C, whose name was still on the child’s birth certificate as “co-mother” at that time, never signed the form. Consequently, Ms. A’s general consent to adoption was not valid.

[41]   On December 10, 2013, Ms. [Social Worker 7], a new worker in the file, called Ms. B. The Progress Notes state that Ms. B “was quite happy to have contact with somebody. She reported that she did not have any contact with the DYP since she moved in City B.” .(sic)  During the conversation, Ms. [Social Worker 7], after receiving good news about the child, stated: “I inform her that I will have the General adoption consent sign, that I will ask for an inter-CJ and explained the process.” (sic)

[42]   On December 18, 2013, [Social Worker 8] called Ms. [Social Worker 7]: “[Social Worker 8] called me about the signature of the general adoption consent. She met with C and C does not want to sign the paper. She stated that she signed in the past but that [Social Worker 4] (the worker) forced her to sign.” In the Progress Notes, it is written that a traditional adoption form was in the file. That form was signed by Ms. C. She was giving the child back to his biological mother. It seems that that form was never sent to the proper authorities. On April 4, 2014, the youth worker received the child’s birth certificate attesting that the mother is Ms. C.

[43]       On March 10, 2015, Ms. C came to the Director’s office.

She mentioned that, while someone else was working for the Director, they did not explain why she keeps signing adoption paper. She thought she signed for adoption and the second time, she signed the papers from the DYP and they they didnt tell her why, but she signed them.  And the third time she signed again she finally asked them why she keeps signing and they told her that it was because she adopt the baby and second time that she signed the papers they she went back to her mother. She did not know about him going back to his mother because she really wanted to keep him that she left down south and did not came back.  On the other hand she was talking about the money but I didnt make any sense.

(sic)

[44]   Ms. C stated in her testimony that, at the beginning, she asked the Director for a one-week placement. On April 24, 2015, the Progress Notes indicate the following information:

After a week or so, C said she found it difficult to care for the child so she asked the DYP for a break of one week. The child became sick and her daughter escorted the child to PUV. The child was placed and she never saw him again. 

[45]   On September 23, 2015, [Social Worker 9], the new youth worker, had a discussion with her manager. They agreed that

Had a clinical discussion with [Social Worker 8] about the X case. It was disscuss that i had to meet with the boil mother, the adopt. mother, A worker ([Social Worker 10]). Get their side of the story to be able to make the situation legal. According to the lack of paperwork the situation of X deemed illegal. Placed down south with no proper paper.

One thing for sure is that the youth will not be returned to his adoptive mother since he’s been place with Ms. B for the past 4 years and has no contact with his Inuit side. He does not speak Inuktitut and has fully integrated his foster family values and culture.

Plan:

Wil try to make the mother reverse the adoption

Have a new general consent of adoption signed.

(sic)

[46]   On September 25, 2015, it was decided that the situation should be addressed. A Kativik Regional Government representative agreed to reverse the adoption, since it was the best decision for the child. The representative’s name does not figure anywhere in the file.

[47]   The Progress Notes dated September 28, 2015, state the following:

Had a very good conversation with Ms. C (C). She opened about the past and X. She told me that she was very hurt by the DYP decision to remove the child from her care. She would love to have contact with X to expose him to his Inuit culture. She told me that her plan was to take back the child and she only need it a break since the child was crying all the time. We talk about the child needs and what is best for him She seemed very hurt and tieary[6] about the process but understood that was the best for the child X has been with his foster family for 4 years now and he is very happy and well integrated.

She agreed to signed the reversed adoption and give back the child to A.

However she wants few picture and phone conversation with the child.

We will see how we could answer her request.

(sic)

 

[48]   Ms. C stated in her testimony that, in October 2015, two women workers asked her to sign the traditional adoption form filed under D-8. She stated that she was not aware of what she was signing, but she wanted to know why she was signing it. They did not explain the reasons to her. She thought it was to consent to the child’s placement until he becomes of full age. She refused to sign the paper twice. The third time she refused, they insisted that she sign. She finally did and, as soon as she signed, they left without any explanation. Examined by Mtre. Neptune, when asked: “Why did you sign?”, Ms. C initially answered: “I don’t know”. Questioned again, she answered: “I know that children are taken away from the parents by the Court until their age of majority”.  Since then, there is only one mother, Ms. A, on the child’s birth certificate. The child’s third birth certificate, issued on July 25, 2017, was filed as evidence.

[49]   The Directeur de l’état civil never questioned these changes in the child’s filiation.

[50]   The representative was aware that B wanted to care for the child in the long term. Ms. C was informed that Ms. A wanted her child to be maintained with B.

Contact between the child and his mothers

[51]   The Progress Notes indicate that, on January 12, 2012, Ms. C asked for contact with the child. No other requests from Ms. C or Ms. A were noted in the Progress Notes prior to that request. On March 20, 2012, Ms. C asked again for contact with the child. “Told her that we would need to get in contact with our superior considering that the child is up for adoption and lives in City B. We will give her an answer as soon as we receive feedback from [Social Worker 6].” (sic)

[52]   A decision was made following a case discussion with Ms. [Social Worker 6] regarding the child. “There will be no visit to City A for now and she asked that we fax her few documents: closure report birth certificate, etc. Complicated case and we must consider the child’s best interest.”

[53]   No one called Ms. C back to inform her of the Director’s decision.

[54]   On February 17, 2015, Ms. C:

… came to the office and she was saying that I tried to adopt X and said I never saw him since he was a baby and now his 4 and C was saying that I want to see him this time and meet him. She said I want him to come here or I want to go see him. And she was saying that this time I want someone to help me out because she wanted to see the child. She want to meet with him finally. She kept on sayint I need help because she wants to see him this time. She was asking who can help her out. She would like to go see him or X can travel here to City A. She wanted an answer right away. And I told her that I will try to help her out to find out what can be planned.

(sic)

  The note was written by [Social Worker 11].

[55]   On the same day, Ms. C reiterated the circumstances under which she signed the General adoption consent. Ms. C remembered this paper:

2 white women came to her house and asked her to sign this without giving her any proper explanation. C did not sign the paper. C said those white people lacked respect. It was hard for her to understand what was happening. C said that she never adopted DYP people before and she didn’t understand it.

(sic)

Ms. C added:

… that she has been patient for 4 years and will continue to be patient. We also asked her to think about the language barriers and this will be a challenge for her and for X.

(sic)

[56]       On August 6, 2012, Ms. C called the Director’s delegate, [Social Worker 12], and she asked to go and see the child in City B. “She said check when we signed the papers. I just told her I will look into it. She also said she hasn’t seen the child for a long time, and wants to know what she signed before letting the child go.” (sic)

[57]       On February 17, 2015, “C came to the office and she was saying that she tried to adopt the child and that she never saw him since he was a baby and now he is 4 “. (sic) She said: “I want to see him this time and meet him. I want him to come here or I want to go see him. This time, I want someone to help me out because I want to see the child.” (sic) The notes state that she kept on saying she needed help because she wanted to see the child. “She wanted an answer right away and I told her that I will try to help her out to find out what can be planned.”(sic)

[58]   In her testimony, Ms. C asked to have the child back by the age of 10.  Before that, she wanted to go and visit him with her children, for the child to know his family. He could get used to them, and they could get used to him, by having visits. She stated that she had asked the social workers many times to see the child all over the years. “They never called back and they still not answer.”

[59]   Ms. C stated that she had the child for two to three months before giving him to the DYP. In fact, she was with the child for a maximum of two months. She stated that she and her children became very attached to the child. The whole family wants to see the child and have regular contact with him.

[60]   In August 2017, she asked to see the baby. She asked where he was and she received no answer from the Director.

[61]   Ms. A never asked for contact with the child in all those years, while Ms. C did.

[62]   On May 18, 2017, Ms. A disclosed that while she would not sign another general consent to adoption, she also did not want to resume her parental responsibilities regarding the child. She stated that she wanted the child to remain with B until he reached his full age. She intended to resume contact with her child because she wanted to know him, as did her family.

[63]   The Court was seized of the child’s situation on September 7, 2017.  The hearing resulted in provisional measures ordered by the Court. The child was entrusted to Ms. B and the Court ordered that contact between the child and the mother be supervised by the Director.

[64]   Following that hearing, the Director allowed Ms. A to have contact with the child.

[65]   From September 22 to September 24, 2017, while Y was visiting his father in the North with his mother, Ms. B, the child X had contact with his mother, Ms. A, for the first time. The child understands that he has two mothers. Ms. B has told the child over the years that she is not his biological mother and that another mother carried him.

[66]   Supervised visits were organized between the child and his biological mother. The following report was made on September 25, 2017:

The mother met with the child for the first time in City C. The worker, the mother, Z the sister and the foster were present We had supervised visit on September 22, 23 and 24. The visits went very well, the mother and the child both reacted very well. When X first saw his mother, he ran to hug her.  He was confused a bit by having two mothers but got at ease pretty quickly. The foster and the mother spoke a lot together about the child’s health, his behaviours, school, his friends, his hobbies, etc. They exchanged Facebook and mail information and agreed to video chat once a week and send pictures. They are all aware that next court is October 11, 2017, that there will be two visits a year in [region A] from now on. Everyone was very appropriate, and it was very emotional for the mother and the foster.

(sic)

 

The services rendered to the child and Ms. B

[67]   On March 11, 2015, there was a clinical discussion between [Social Worker 13] and [Social Worker 14], HRA. She said that

B from the south who has been caring for X is calling because she needs a health card and will need to register the boy in school. She is asking for help, she never heard any new from DYP since 2013.

(sic)

[68]   On March 12, 2015, [Social Worker 13] tried to clarify the whole situation and asked for Ms. B’s collaboration.

In December 2012, a DYP lady called and asked if she knew about the legal status of the child. Obviously, there was none. B said she doesn’t believe that his file ever went to court. In March 2012, [Social Worker 4] called for her to send pictures In December 2013, [Social Worker 7] called her to inform the adoption process would start. [Social Worker 7] never called her back. Since no news from Youth Protection until today.

(sic)

[69]   On May 13, 2016, the DYP received a call from the operating room of the City B hospital, seeking for authorisation from the parents for medical purposes. The operation had to be cancelled and postponed, because the document was ontly signed by Ms. A ten days later. Once again, the notes repeat “the child was in foster since 5 years and no placement until majority has been done” (sic), saying that [Social Worker 7] knew about this situation.

 

The child

[70]   Ms. A has three other children: I, age 18, J, age 15, and Z, age 11. The child does not know his siblings, who live with their mother in City A.

[71]   B has a child of her own, Y, age 8. Y’s father is from City C. The parents separated in 2009 but still have a good relationship, and Y often visits his family in City C. X does not have any paternal figure and he likes to call Y’s father “papa” when he visits. Both the maternal and the paternal families consider X to be Y’s brother and fully-fledged member of the family.

[72]   The child is doing well under the care of Ms. B. When he was first brought to her, he was a very anxious child. He was crying non-stop. He was very stressed, anxious (his body was always contracted), and needed to be held all the time, day and night. He had difficulty drinking and did not sleep much. He was diagnosed with long QT syndrome, a genetic heart disease that requires medical follow-up. The child displays a significant language disorder.

[73]   B described the child as follows in the Evaluation and Orientation Report, at 6 and 7:

(He) is a very shy and embarrassed child but who can get at ease when he knows someone very well. He is introverted and can be easily forgotten if left alone playing in a room. He has a strong tendency to categorize things and to have the need to place everything at its place. He had a phase around two (2) to five (5) years old where he would get into crises if things were not categorized and meticulously organized like he wanted. He was still functional despite this phase. Regarding his social integration at school, X made friends but did not speak much at the beginning as he was very shy. X already knew a few classmates so it was easier to connect to them for him. Academically, the child is performing very well. He learns very quickly, no learning issue, his letters are very good, and he is advanced in math compared to his classmates. X already knows how to read the time, as he is a very anxious child, he has always had the need to position himself in time (the time is kind of like grounds to him).

(sic)

[74]   The Director alleged that the mother’s collaboration (Ms. A) with the Director is regular. Ms. A and B get along well.

 

Analysis

Reasons to declare the security and development of the child in danger

[75]   The evidence reveals that the child has been abandoned by his biological mother. He lived with her for approximately two weeks.

[76]   The traditional adoption of the child by Mrs C was regular. When Ms. C gave the child to the DYP, the Progress Notes were clear and reliable. The baby had not been long under the care of Ms. C. The child was one month old when he was brought by Ms. C to youth protection services. She did not want to be involved anymore because she was having issues with Ms. A, the biological mother. The weight of her problems at the time of her giving birth pushed her to harass her friend Ms. C, to whom she had given her baby for adoption.

[77]   Further in the Progress Notes, it was noted that Ms. C was tired of hearing the baby cry every night. After discussion, she even refused to keep him until a foster family could be found. The social worker insisted at the time that Ms. C take care of the child. Ms. C gave up on the child in March and April 2011. The Director even offered his help to Ms. C, because she had had the child with her almost since his birth.

[78]   Ms. C stated that she did not know that, from March 21, 2011 to April 17, 2011, the child was placed in eleven different foster homes in City A. On April 4, 2011, she clearly stated that she wanted the baby at the end of the intervention. She indicated her refusal to let the baby stay  with the DYP. The Director closed his eyes on that information. He should have seized the Court, but he did not. The Director must be blamed for that.

[79]   Ms. C is the one who initially suggested that the youth worker find a family out of City A. In fact, the child had been placed in another community. Ms. C was not informed by the Director that the child would be entrusted to a foster family in City B.

[80]   Ms. C got no information from the Director on what was done with the child. She received no follow-up. She was totally ignored by the Director. Ms. C never called to get news from him. It was only in January 2012 that Ms. C requested contact with the child. Two months later, she again asked for contact. She never received any answer from the Director regarding her requests. It was only in February 2015 that she came back with a request to see the child. She never received an answer to that specific request either.

[81]   She never called and asked for the baby to be returned to her. She never stood up for the child.

[82]   As established by case-law, the undersigned has to evaluate the facts proven from a point of view essentially centered on the child, in relation to his best interest, without giving an excessive importance to the excuses or the good or bad intentions of the parent. During the crucial years of his development, the child developed a significant link with his substitute parent.  Ms. C’s inaction is equivalent to abandonment.

[83]   Before the Court was finally seized with the child’s situation, Ms. B had never been assessed as a foster family. She was left on her own with the child. Occasionally, she asked youth protection services for documents. She received allowances, like any foster family.

[84]   The Director deliberately let the situation go on independently and evolve into a situation of fact where the child has been with his foster mother for a significant number of years and has developed a strong bond with her. It would be detrimental to the child to remove him from her care.

[85]   Consequently, the child was also abandoned by the Director of Youth Protection.

Remedies

[86]   Ms. A and Ms. C were kept in ignorance by the Director. The Director must be blamed for that. He owes an apology to both women. Verbal apologies were already offered but more must be done. He will have to present written excuses to Ms. A, Ms. C and Mrs, B as requested by the child’s counsel, and which was not challenged by the Director.

 

The multiple transfers of the child

[87]   The child remained within the community from March 21, 2011, to April 17, 2011. During that period, the child was placed in eleven different foster homes in City A, before being placed in City B.

[88]   Such a situation was still prevalent up North in 2017. It was excessively difficult to find foster parents who agree to take care of babies. Babies need to be cared for on a full-time basis. They need to be fed regularly, to have their diapers changed when needed, to have medical follow-up. They cry, especially when they are sick and no one takes charge of the health services they need, as was the case with X when he was up North. They are not autonomous. They cannot go and play outside by themselves. They need constant attention and love. Having a baby under one’s care is very demanding and time consuming. Unfortunately, it seems to be very difficult to find Inuit foster families who will accept such constraints.

[89]   At the same time, the Director has a duty to first search for foster families among the child’s extended family. If this is not possible, he looks for a foster family in the community, then in other communities in the region, and then, if no foster family is found, in other Inuit regions. The Director does not have a bank of foster families in the South.

[90]   That reality engenders situations where a child is delivered, almost like a parcel, like a little thing without any affect, any emotion, from one address to another.

[91]   Very often, the babies who need to be placed in foster care are born to mothers who have drinking problems and who did not stop drinking during their pregnancies. Those babies start their life with one strike against them. That was the situation when X was carried by his biological mother. He may have special medical needs throughout his life because of that reality. He may need an assessment for FASED. It is well-known that such assessments are very difficult to obtain. An effort should be made to develop a specialized team up North to help identifying the children and their foster parents in need of special help in relation to FASED.

[92]   Adding to that situation is the fact that displacing babies from one foster home to another, again and again, is highly detrimental to their development. There is an urgent need for the Director to carefully assess the foster environment before entrusting a baby to foster care. If that the Director does not take responsibility for this, the babies will continue to be placed in conditions that are improper, indeed even dangerous, to their development.

[93]   In the situation of the child X, when Ms. B appeared interested in fostering a child long term or in adopting a child, the child was entrusted to her almost immediately. Ms. B helped to put an end to the child’s instability.

 

The child’s right to health services

[94]   Ms. C did not take steps to get the child seen by a nurse or a doctor even though he was crying a lot also during the period she had him under her care.

[95]   Part of the reason why it did not work with the foster families up North, is because the child was crying a lot. He had medical problems and no one gave the necessary medication to the different foster families who took care of the child.

[96]   One week before the child was sent to City B, a youth worker received information on the child’s health condition from the doctor. The doctor wanted the child to be medevacked immediately. He was not.

[97]   Ms. [Social Worker 4] acted in a totally irresponsible manner when she “delivered” the child to Ms. B at the City B airport, like a parcel, when Ms. B was a person the child did not know at all and who did not know him at all, who was without any basic information on his needs.  Nothing was told to Ms. B regarding the child’s health condition.

[98]   Numerous facts reported more specifically in paragraphs 24,30, 33, 36 and 69 allow the Court to declare that the child’s rights to health services were wronged by the Director.

 

The reverse adoption

[99]   The circumstances of the “reversed adoption” must be looked at.

[100]    Considering the evidence as a whole, it is clear that, from the moment she was informed of Mrs B’s wish to adopt a child, Ms. [Social Worker 4]’s interventions were aimed at having the child X adopted by Ms. B.

[101]    Over the years, more than a dozen youth workers, social workers and managers intervened in the child’s file.

[102]    During that time, instead of seizing the Court of the child’s situation, the Director schemed to change the child’s legal mother, who was Ms. C. The biological mother agreed to maintain the child with Ms. B. To have “carte blanche”, the Director decided to make the child’s biological mother an ally to his plan. That plan was to reverse the adoption and have Ms. A as the new adoptive mother who could legally be called upon to consent to the child’s long-term placement with Ms. B.

[103]    The evidence shows that, in April 2011, Ms. C had agreed to reverse the adoption in favour of Ms. A. However, the traditional adoption process was not completed because the Kakivik Corporation did not receive the completed form. The context was completely different. It was an agreement between the two women.

[104]    On August 1, 2011, a first attempt was made by the Director to make the child admissible to adoption. Ms. [Social Worker 4] asked Ms. A to sign a general adoption consent form for the child. The consent was not valid as Ms. C’s name was also the child’s birth certificate.

[105]    The general adoption consent form came back up for discussion in December 2013. [Social Worker 7], a former youth worker, informed Ms. B that she would have the General adoption consent form signed. Ms. C refused to sign.

[106]    In 2015, the Director put pressure on Ms.C, with the implicit consent of the Makivik Corporation, to sign the Declaration of Inuit Customary Adoption Form, reversing the child’s adoption in favour of Ms. A.

[107]    On April 23, 2017, the Progress Notes state:

B (B) explained that her impression is that since X was not in danger with her, it was not a priority for the DYP workers as they had too many emergencies and that after a while, since the file was not legalized, everyone “closed their eyes” when the file was popping up. [7]

(sic)

[108]    Not only did the Director close his eyes on the whole situation, the Director put undue pressure on Ms. C to have her sign the “reverse adoption”. Ultimately, it was the Director who decided to attribute his biological mother to the child as his legal mother. Such an operation was totally immoral and unnecessary. It was an abuse of authority with huge legal consequences for the child. Mtre. Neptune is right. The Director almost stole the child from his legal mother. That is clearly a situation violating the child’s right.

[109]    What will be the consequences of this whole situation be on the child, when he questions his origins?

[110]    Fortunately, Ms. B had the honesty to inform the child that he had another mother who gave birth to him. It will be wise to consult a psychologist before introducing the third mother in the answers given on his origins.

Remedies

[111]    The Director will have to pay for any psychological consultations the child might need in regard to that whole situation. To ensure the neutrality of the professional who will make recommendations to the Director, Ms. B will be the one who will chose the psychologist or the other professionals the child may need and the Director will have to pay the bills.

[112]    If the child ever needs psychological follow-up care with regard to that particular situation when he is an adult, the Director should pay for those services. However, the Court does not have jurisdiction on the child once he is eighteen. Claims could be asked by the child’s counsel through an application for damages in Civil Court.

 

The child’s contact with his biological mother and adoptive mother

[113]    The notes report that, during the meeting the child had with his mother last September, “everyone was very appropriate, and it was very emotional for the mother and the foster.” What about the child’s emotions? The notes report that “he was confused a bit by having two mothers but got at ease pretty quickly.” Can anyone fail to take for granted that the situation was “very emotional” for the child also? Because the child did not cry, should we take that to mean that the situation not emotional for him also?

[114]    The notes regarding the first meeting, dated September 25, 2017, raise concerns. They indicate “that there will be two visits a year in [region A] from now on.” Is it insensibility, credulity or autocracy that led the Director to make such decisions a few weeks before this hearing? Or was it gratefulness towards Ms. A for having collaborated so closely with the Director’s plan, without knowing it, since August 2011?

[115]    Curiously, Ms. A gained a lot of power over the situation along the years. She made the Director change his plan regarding the adoption of the child by Ms. B. Ms. A had contact with the child beyond any emergency. Now she wants the child to know her family. Ms. A has never been assessed by the Director. The Director seems to have unrolled the red carpet for Ms. A’s.

[116]    In the Evaluation and Orientation Report, at 7, the youth worker comments on the parental capacities of Ms A as follows:

Ms A is still up to this day, struggling with alcohol drinking issues. However, we do not have much information regarding her parental capacities as we only met her once during the evaluation.

[117]    Nevertheless, contact spread over a 3-day period was authorized by the Director between the child, his biological mother and the foster mother. Where was the need to hurry any contact between the child and Ms. A before the hearing set for October 11, 2017?

[118]    That being said, a request was made on May 4, 2017, for Ms. B’s foster environment evaluation. It is still in process and the Director asks the Court to take judicial notice that Ms. B will be evaluated as a foster family. The evaluation had not yet been completed as of early November 2017. Ms. B has raised the child by herself and provided him with all the services he has needed since he was 2 1/2 months old.

[119]    No further contact between the child and Ms. A will be authorized before Ms. A can be seriously assessed and before a psychologist chosen by Ms. B can evaluate the pertinence of having such contact and the child’s need for it. Following that assessment, a written report will be needed, and the Director will have to follow through with the recommendations from the psychologist. The cost of the psychological assessment will be paid by the Director. That report will have to be filed and transmitted to the child’s counsel.

[120]    If the mothers, biological, former adoptive or foster, wish to have regular contact between them, it is up to them. The child will not be present on those occasions, until the psychologist chosen by Ms. B has met with Ms. B and the child to assess the impact on the child of any contact with his biological mother.

[121]    This child is very fragile. He experienced abandonment several times when he was a baby. At the time, he witnessed conjugal violence and disputes. The child has the right to stability. His rights were wronged by the Director in regard to sections 2.4 and 3 of the Youth Protection Act. In his interventions, the Director did not treat the child and his mothers with courtesy, fairness and understanding, and in a manner that respects their dignity and autonomy. The Director did not ensure that the mother has understood the information or explanations that must be provided to her under the Youth Protection Act. The Director did not give the child and his parents an opportunity to present their points of view, express their concerns and be heard at the appropriate time during the intervention. The child’s point of view, even if he was a baby, could have been transmitted to the Court, via counsel. It could also have been transmitted to the Director through an appropriate professional assessment. “Everyone closed their eyes.”

[122]    The child’s rights were wronged by the Director following section 2.3 of the Youth Protection Act:

Any intervention in respect of a child and the child’s parents under this Act

(a)  must be designed to put an end to and prevent the recurrence of a situation in which the security or the development of the child is in danger; and

(b)   must, it the circumstances are appropriate, favour the means that allow the child and the child’s parents to take an active part in making decisions and choosing measures that concern them.

(c)  Every person, body or institution having responsibilities under this Act towards a child and the child’s parents must encourage the participation of the child and the parents, and the involvement of the community.

(d)  The parents must, whenever possible, take an active part in the application of the measures designed to put an end to and prevent the recurrence of the situation in which the security or development of their child is in danger.

[123]    The child’s rights were wronged by the Director following section 2.4 of the Youth Protection Act:

Every person having responsibilities towards a child under this Act, and every person called upon to make decisions with respect to a child under this Act shall, in their interventions, take into account the necessity

1)    of treating the child and the child’s parents with courtesy, fairness and understanding, and in a manner that respects their dignity and autonomy;

2)    …

3)    of ensuring that the parents have understood the information or explanations that must be furnished to them under this Act;

4)    of giving the child and the child’s parents an opportunity to present their points of view, express their concerns and be heard at the appropriate time during the intervention; and

5)    of opting for measures, in respect of the child and the child’s parents which allow action to be taken diligently to ensure the child’s protection, considering that a child’s perception of time differs from that of adults and which take into consideration the following factors:

6)    (a) the proximity of the chosen resource;

7)    (b) the characteristics of cultural communities;

8)    (c) the characteristics of Native communities.

[124]    The child’s rights were wronged by the Director following section 3 of the Youth Protection Act:

Decisions made under this Act must be in the interest of the child and respect his rights.

In addition to the moral, intellectual, emotional and material needs of the child, his age, health, personality and family environment and the other aspects of his situation must be taken into account.

[125]    The child’s rights were wronged by the Director following section 5 of the Youth Protection Act:

Persons having responsibilities regarding a child under this act must inform him and his parents as fully as possible of their rights under this act and in particular, of the right to consult and advocate and of the rights of appeal provided for in this act.

In the case of an intervention under this Act, a child as well as his parents must obtain a description of the means and stages of protection and rehabilitation envisaged towards ending the intervention.

[126]     The child’s rights were wronged by the Director following section 7 of the Youth Protection Act:

Before a child is transferred from one foster family or facility maintained by an institution operating a rehabilitation centre to another foster family or facility maintained by another institution operating a rehabilitation centre, the child’s parents and the child himself, if he is capable of understanding, must be consulted.

The child must receive the information and preparation necessary for his transfer.

[127]     The child’s rights were wronged by the Director following section 8 of the Youth Protection Act:

The child and the parents are entitled to receive, with continuity and in a personalized manner, health services and social services that are appropriate from a scientific human and social standpoint, taking into account the legislative and regulatory provisions governing the organization and operation of the institution providing those services, as well as it human, material and financial resources.

[128]    The child’s rights were wronged by the Director following sections 49, 50 and 51 of the Youth Protection Act:

49. If the director considers admissible the report to the effect that the security or development of a child is or may be considered to be in danger, he shall assess the child’s situation and living conditions. He shall decide whether or not the child’s security or development is in danger.

 

50.  Where the director establishes that the security or development of the child is not in danger, he must inform the child and his parents and notify the person who had brought the situation to his attention.

 

51.  Where the director is of the opinion that the security or development of a child is in danger, he shall take charge of the situation of the child and decide whereto he is to be directed. For that purpose, before proposing the application of voluntary measures or referring the matter to the tribunal, the director shall favour the means that encourage the active participation of the child and the child’s parents, if the circumstances are appropriate.

The director informs the person referred to in the first paragraph of section 39 who had brought the situation of the child to his attention that the situation has been ten in charge.

 

[129]    While the Court order is in effect, the Director will have the obligation of establishing a life plan for the child, in accordance with section 91.1 of the Youth Protection Act.

[130]    The child’s lawyer, Mtre. Neptune, submitted to the Court that the following corrective measures should apply:

·        The Court assigns blame to the Director for his decisions in the present file;

·        The Director must present a written apology to Ms. A and Ms. C;

·        The interveners employed by the Director must receive education regarding their duties under the Youth Protection Act;

·        The child must benefit from follow-up care for his health problems;

·        The Director must pay for psychological care, when the child becomes an adolescent and, if need be, an adult;

·        The Commission d’enquête sur les relations entre les autochtones et certains services publics du Québec will receive notification of this judgment;

·        The Director of Youth Protection and the Commission des droits de la personne et de la Jeunesse will receive notification of this judgment.

The Director did not contest the recommendations of Mtre. Neptune.

 

THEREFORE, THE COURT:

[131]    ALLOWS the application;

[132]    DECLARES that the security and the development of the child, X, are in danger because he was abandoned by his biological mother, by his adoptive mother and by the Director of Youth Protection;

[133]    DECLARES that the child’s rights have been wronged by the Director of Youth Protection, particularly in regard to sections 2.3, 2.4, 3, 5, 7, 8, 49, 50 and 51 of the Youth Protection Act.

 

AS MEASURES DEEMED TO BE IN THE CHILD'S INTEREST, THE COURT:

[134]  ORDERS that the child be entrusted, until September 30, 2018, to B, chosen by the institution operating a child and youth protection service;

[135]  TAKES JUDICIAL NOTICE that Ms. B is presently evaluated as a foster family for the child;

[136]  ORDERS that, as soon as the evaluation is complete and positive, the child be entrusted to the foster family of B, chosen by the institution operating a child and youth protection centre, until September 30, 2018;

[137]  ORDERS that Ms. A’s environment be seriously evaluated by the Director, with the assistance of a psychologist;

[138]  ORDERS that the said assessment be filed in the child’s court record and sent to the child’s counsel;

[139]  ORDERS that no further contact be allowed between the child and his mother until the assessment of the  Mrs A’s environment is properly completed and comes out positive;

[140] ORDERS that, before resuming contact with his mother, the child benefit from a psychological assessment by a psychologist chosen by Ms. B and paid for by the Director concerning the impact of resuming contact with his biological mother;

[141]  ORDERS that the said assessment be filed in the court record and that a copy be sent to the child’s counsel;

[142]  ORDERS that the Director take into consideration the conclusions of the child’s psychological assessment and of the assessment of Ms. A’s environment before resuming contact between the child and his mother;

[143]  ORDERS that all contact between the child and his mother, if recommended by the psychologist, be supervised by a social worker designated by the Director of Youth Protection and that Mrs B be present during the meeting, if she finds it useful in the child’s best interest and if she wishes to be present;

[144]  ORDERS that the Director take into consideration the conclusions of the child’s assessment and of the assessment of Ms. A’s environment to determine the contact between the child and his mother, the frequency being established with the consent of Ms. A, Ms. B and the social worker;

[145]  ORDERS that Ms. A be sober in the presence of the child;

[146]  ORDERS that the child receive the specific health care and health services required by his condition, notably for his heart condition and his speech delay;

[147]  ORDERS that the Director of Youth Protection pay for any private services the child may need, be it physical or psychological;

[148]  ORDERS that Ms. B report regularly to the Director on the services the child needs, for which the Director will have to pay;

[149]  ORDERS that the mother report in person, at regular intervals, to the Director of Youth Protection to inform her of the current situation;

[150]  ORDERS that the mother take an active part in the application of the measures ordered by the Court and cooperate fully with the Director of Youth Protection; 

[151]  RECOMMENDS that the Director of Youth Protection elaborate a life plan for the child aimed at ensuring continuity of care, stable relationships and stable living conditions corresponding to his needs and age;

[152]  ORDERS that a person working for an institution or body provide aid, counselling or assistance to the child, Ms. B and the child’s mother until September 30, 2018;

[153]  BLAMES the Director of Youth Protection for his decisions concerning all the situations in which the child’s rights were wronged;

[154]  ORDERS that the Director of Youth Protection present written apologies to Ms. A, Ms. C and Ms. B for her actions where the child’s rights were wronged and that copy of those letters be filed in the Court record;

[155]  ORDERS that the Director of Youth Protection give adequate training to the interveners she employs regarding their duties under the Youth Protection Act;

[156]  ORDERS that a blue-penciled copy of this judgment be served by the clerk to the Commission d’enquête sur les relations entre les Autochtones et certains services publics au Québec, also known as Commission Viens, and to the Kativik Regional Government;

[157]  ORDERS that a copy of this judgment be transmitted to the Commission des droits de la personne et des droits de la Jeunesse and to the Directeur de l’état civil;

[158]  ORDERS that a person working for an institution or body provide aid, counselling and assistance to the child, Ms. B and Ms. A until September 28, 2018;

[159]  ORDERS that no one allow the child to read or be informed of the contents of this judgment, unless assisted by a psychologist chosen by Ms. B and paid for by the Director of Youth Protection;

[160]  ENTRUSTS the situation of the child, X, to the Director of Youth Protection A, who will see that the measures are carried out.

	SIGNED IN CITY D January 18, 2018
	LUCILLE BEAUCHEMIN J.C.Q.
Mtre. Aubrée Coutanson
Counsel for the Director of Youth Protection
Mtre. Cassandra Neptune Counsel for the child
Mtre. Angèle Tommasel Counsel for the mother
Dates of hearing: October 11, 2017, and November 3, 2017