WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
45.— (8) Prohibition: identifying child.
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
45.— (9) Idem: order re adult.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court File and Parties
Ontario Court of Justice
Between:
The Children's Aid Society of Prince Edward County, Applicant
— AND —
K.S. and T.F.Sr., Respondents
Before: Justice E. Deluzio
Heard on: October 22, 2012, October 29, 2012, October 30, 2012 and November 1, 2012
Reasons for Judgment released on: November 5, 2012
Counsel:
- J. Hurley — for the applicant Society
- J. Vandekleut — for the respondent, T.F.Sr.
- R. Smart — for the respondent, K.S.
Deluzio J.:
Introduction
1The Children's Aid Society of Prince Edward County ("the Society") seeks an order of Crown wardship for the purpose of adoption of the children, T.F.Jr. born […], 2007 ("T.F.Jr.") and B. F., born […], 2011 ("B."). The Respondents, T.F.Sr. (the father) and K.S. (the mother) are T.F.Jr.'s biological parents. The youngest child, B., was conceived during a period of time when the parents were separated. Paternity testing has confirmed that B. is not the biological child of T.F.Sr., but the Respondents had reconciled when B. was born and it was their joint intention that T.F.Sr. would assume a parental role towards B. The identity of B.'s biological father is unknown.
2The parents concede that the children are in need of protection and request that the children be returned to their care, subject to a supervision order.
Background
3The Society has been involved with the parents since prior to the birth of their son, T.F.Jr. At that time both parents were participating in a methadone program and on the recommendation of the program's supervising physician, Dr. Hadley, the father contacted the Society to advise the Society that they were expecting a baby.
4The Society had protection concerns arising from the parents' drug use and lack of parenting skills, and T.F.Jr. was apprehended at birth on […], 2007. The parents were cooperative with the Society, and on December 6, 2007 the parents consented to a finding and a six month supervision order which provided for T.F.Jr.'s return to the parents' full time care, by December 21, 2007.
5Both parents continued to do well and the Society was satisfied that T.F.Jr. was being well cared for, and the parents were not using illicit drugs. At the request of the Society and on consent, the Court terminated the Society's supervision order on June 2, 2008.
6A year later, in June 2009, the parents came to the Society's attention again when Dr. Hadley called the Society to report that both parents were testing positive for oxycodone. The Society received a second, similar report from Dr. Hadley on January 23, 2010. In response to this second report, the Society worker attended at the parent's residence with a drug tester and the parents submitted to urine tests. T.F.Sr. tested positive for marijuana and K.S. tested positive for marijuana and a low level of cocaine. At the time of that visit, the Society worker also noted that the home was clean and organized, T.F.Jr. was asleep in his room and no community reports had been received about the care T.F.Jr. was receiving. The parents were cautioned about their drug use but no further action was taken by the Society at that time.
7A few months later, on March 5, 2010, the father contacted the Society to advise that the mother had left their home and that he believed she was using drugs again and was involved with a drug dealer in Napanee. He also told the Society he didn't know where the mother was and thought she might have moved to Toronto. He was concerned about the mother coming to take T.F.Jr. The father agreed to enter a Voluntary Supervision agreement with the Society. Several terms of the agreement dealt specifically with contact between the parents and the mother's access to T.F.Jr. The agreement required the father to notify the Society in advance before arranging access between the mother and T.F.Jr. and specifically prohibited the mother from attending at the family home. The agreement was signed by the father only. At trial the mother testified that when she left she moved in with her parents in Kingston. She did not become aware of the existence of the voluntary supervision agreement until after she reconciled with the father, shortly before B.'s birth.
8The assigned Society worker, Janet Richardson, testified that between March 2010 and March 2011 she was involved on a voluntary basis, supervising the father's care of T.F.Jr. She said she had no concerns about the father's parenting skills during this time. She testified that the father was always very attentive to T.F.Jr., the home was always clean and organized, T.F.Jr. had many toys and seems to be thriving and doing well. Her only concern about the father's parenting was that she felt that the father interacted with T.F.Jr. "as a buddy".
9On March 3, 2011 the Society received a call from Sue McLean at Ontario Works. Ms McLean called to advise the Society that the mother had moved back in with the father and T.F.Jr., was pregnant, and didn't look well. Ms. Richardson testified that the call from Ontario Works raised protection concerns because the father had failed to advise the Society of his reconciliation with the mother, in breach of his voluntary agreement with the Society. The next day, March 4, 2011, the Society initiated a protection application seeking a supervision order.
10At that time the father was still living in the same residence where the parties resided together with T.F.Jr. since T.F.Jr. was returned to their care; and where the father continues to live today. The residence is a unit in a triplex. The father's paternal grandmother lives in a second unit in the building; and his parents and his sister L.F. live in the third unit.
11B. was born on […], 2011. At the time of her birth the mother was on methadone, and B. was born with methadone in her system. No other illicit drugs were detected in B. Due concerns about methadone withdrawal, B. remained in hospital until March 28, 2011 when she was discharged. Ms. Richardson visited the parents in their home that same day, and both parents told her they planned to live together and raise both children.
The Protection Application
12The Society's protection application was first before the court on April 4, 2011. On that date the Court made an order of temporary supervision. One of the terms of supervision required the parents to advise the Society of any change in the status of their relationship and to discuss planning of access with the Society. The order also provided that the parents were to have any alternate care providers approved by the Society and specified that the father's aunt, J.B., was the only family member approved by the Society to provide care to the children. I note that this provision restricting family members from providing care to the children was much more restrictive than the condition included in the voluntary agreement which stated that "the father or the mother are not to take the child overnight to anyone else's home without the prior knowledge and approval of the child protection worker, this specifically means that the child cannot attend at the paternal or maternal grandparents' homes unless the parent is present at all times" and that "the father is to notify the child protection worker of any alternate caregivers prior to the caregiver providing care for the children".
The Apprehension
13On April 26, 2011 the Society received a call from an individual who was known to the Society but who wished to remain anonymous. The caller told a Society intake worker that the parents did not always stay together, that the mother and B. sometimes stayed at the father's home, but did not reside there. The caller also told the Society that when the parents were not together, B. stayed with her mother and T.F.Jr. stayed with his father. The caller reported that T.F.Jr. stayed overnight at his grandparents' home on occasion. The caller also told the Society about an altercation that had taken place three days earlier on April 23, 2011 at the father's home between the father and the caller. Police were called but no charges were laid. At the time of the incident T.F.Jr. was sleeping at his grandparents' but the mother and B. were present. After receiving this information Ms. Richardson went to T.F.Jr.'s school to interview him. T.F.Jr. told her that he did sleep at his grandparents' home sometimes. Under cross-examination, Ms. Richardson acknowledged that T.F.Jr. did not give her any details about how often he slept at his grandparents' house and didn't say one way or the other whether either parent was at his grandparents' home when he slept there. Ms. Richardson then contacted both parents and asked them to attend the Society office that day at 4 p.m. and to bring both children with them. Ms Richardson testified that both parents called the Society to advise that they were unable to attend the meeting but could meet with the Society worker on Thursday, two days later.
14On the basis of the caller's information, T.F.Jr.'s statements about sometimes sleeping at his grandparents' home, and the parents' decision to cancel and reschedule their appointment with Ms. Richardson until Thursday of that same week, the Society decided that both children would be apprehended.
15Ms. Richardson testified that a decision was made during office hours in consultation with her supervisor, Lynn Renaud, that both children would be apprehended that night. At trial, Ms. Richardson testified that when she apprehended the children she did not even know the identity of the caller. Ms. Renaud testified that she did not speak with the caller herself, but knew the identity of the caller and believed the caller was telling the truth.
16Ms. Richardson testified that she made arrangements with an after-hours worker and the police and attended at the father's home at 7:00 that night. Neither parent was present. A friend of the father's was in the home and told Ms. Richardson that the mother, father, paternal grandmother and both children had just left to go into town and would return in about half an hour. Ms. Richardson and the police then entered the grandparents' residence and found the child T.F.Jr. present and asleep in bed, and in the care of the paternal grandfather and his aunt L.F. She agreed that T.F.Jr. appeared to be fine and was in fact asleep when she arrived. She said she spoke with the grandfather and L.F. and they told her that the parents had gone together to Belleville and would be back shortly. She agreed that the father later called the after-hours worker to inform the Society where the mother and B. were.
17Both parents testified that they left the home that evening with the paternal grandmother and B. to go shopping at Walmart in Belleville. They intended to be away for only an hour or two. The father testified that his grandmother M.F., who had been previously approved by the Society as a caregiver, was also in his parents' residence and he had in fact left T.F.Jr. in the care of M.F. He testified that he couldn't leave T.F.Jr. in his own bed because his grandmother didn't like his dog, and wasn't comfortable babysitting T.F.Jr. in his home. He said his plan was to take T.F.Jr. out of bed at his parents' and put him in his own bed when they returned from shopping. The father also testified that during the year that Ms. Richardson supervised his care of T.F.Jr. on a voluntary basis, Ms. Richardson was aware of occasions when he left T.F.Jr. in the care of his sister L.F. for short periods of time, and had no objection to this.
18The parents were on their way back to Bloomfield when the father's sister, L.F., called them on their cell phone, hysterical, to tell them that T.F.Jr. had been apprehended. Both parents testified that they were shocked and devastated by this news. The mother asked to be dropped off with B. at her parents' home because she was upset and wanted to talk to her parents about what had happened. When the father arrived home he did call the Society after-hours worker and told them where mother and baby were because he didn't want the Society to think that the mother was trying to hide with B.
19A Society after-hours worker, accompanied by the police, then promptly attended at the residence of the maternal grandparents and apprehended five week old B. from her mother's care.
20At trial the father testified that the night of the apprehension was in fact the first time that T.F.Jr. had ever stayed at the grandparents' home without him being there. He said before that night he had never allowed T.F.Jr. to be overnight at anyone else's home. He explained that they were just going to Belleville to shop at Walmart and planned to be back within two hours. He asked his grandmother to put T.F.Jr. to bed at his parents' home and stay there while he was gone. He said his grandmother didn't like to watch T.F.Jr. at his home because she wasn't comfortable around his dog. He said his grandmother had obtained a CPIC clearance at the request of the Society and had been approved by the Society to look after T.F.Jr. during the period of voluntary supervision. The father also testified that his sister L.F. was also present at his parents' home while T.F.Jr. was sleeping there that night, that Ms. Richardson was aware of previous situations when L.F. had babysat T.F.Jr. for short periods of time and that Ms. Richardson had not objected to L.F. babysitting T.F.Jr. The father was not cross-examined about this evidence.
21The father testified that he believed he was addressing the Society's concerns the night of the apprehension because his sister L.F. was present, and his grandmother (who lives in the third unit in the triplex) was also present, and he had asked his grandmother to put T.F.Jr. to bed and stay in his parents' home until they returned. He said his plan was to pick up T.F.Jr. and put him in his own bed when they returned from shopping that night.
22Prior to the apprehension the Society had supervised the father's care of T.F.Jr. for over a year with Ms. Richardson attending the father's home at least once per month. Ms. Richardson was aware that the father's parents and sister lived in one of the three units in the triplex, and that there was a great deal of contact between the father and T.F.Jr. and the paternal grandparents. At trial Ms. Richardson acknowledged that she was aware at the time she apprehended T.F.Jr. that L.F. would at times babysit T.F.Jr. when the father had to go out, and that the grandmother would sometimes drive T.F.Jr. to nursery school and pick him up. Ms. Richardson also agreed, under cross-examination, that in the past she had not regarded L.F. babysitting T.F.Jr. as a breach of the voluntary supervision agreement. Ms. Richardson also testified that throughout the entire time that she supervised the father's care of T.F.Jr. prior to the apprehension she had no concerns about the father's parenting or about T.F.Jr.'s development or his behaviour. It was clear to her that there was a strong attachment between T.F.Jr. and his father.
23The Society had concerns about the paternal grandfather being left in a caregiving role with T.F.Jr. because the Society was aware that the paternal grandfather had been physically abusive in the past towards his wife and children. The Society was also concerned that the paternal grandmother had failed to protect her own children from his abuse.
24I note that the Society interviewed the parents the morning after the apprehension but they did not interview any of the father's family members to find out what arrangements the father had made for T.F.Jr.'s care that night.
25The mother testified that she left the relationship in March 2010 and moved to Kingston to live with her parents because she and T.F.Sr. were not getting along. She said they were fighting and the fighting had escalated to pushing and shoving and she didn't want to expose T.F.Jr. to the conflict so she left. She said that at first T.F.Sr. wouldn't let her see T.F.Jr. She didn't know he had entered into a voluntary supervision agreement with the Society. For the first few months she only talked to T.F.Jr. on the phone. A few months after she left, the parents started to have contact and T.F.Sr. brought T.F.Jr. to see her in Kingston and she also saw T.F.Jr. at her parents' home. The parents' relationship started to improve and they started seeing each other again. The mother testified that she was not using drugs when she lived with her parents but started using once in a while when she returned to Picton. She said she didn't find out she was pregnant with B. until she was five or six months pregnant because she continued to have her period and didn't have any other physical signs of pregnancy. When she found out she was pregnant she got back on the methadone program so she couldn't relapse again. She moved back in with T.F.Sr. in late 2010 or early 2011. She said she wasn't sure whether T.F.Sr. was the baby's biological father but they were planning to raise her together. When she brought B. home from the hospital, T.F.Sr.'s friend was staying at their home. She didn't like the friend and worried that T.F.Sr. would "slip up". She asked him to go to detox and he agreed.
26The mother testified that the weekend before the children were apprehended was Easter weekend and she spent most of that weekend with her parents who had moved back to Picton. The night the children were apprehended T.F.Sr. and his mother picked up the mother and B. and they went to Walmart in Belleville. On their way home they got a call from L.F. saying T.F.Jr. had been apprehended. She was scared and asked T.F.Sr.'s mother to drop her off with B. at her parents' home. She told T.F.Sr. to tell the Society she was at her parents' home. The Society entered her parents' home while she was holding B. who was asleep in her arms. Her parents were both there and asked the Society worker to leave B. in their care but the worker said she had been instructed to apprehend B. The mother testified that at the time of the apprehension she was on the methadone program and was not using any drugs.
27Ms. Richardson interviewed both parents separately at the Society offices the next morning. She said her interview with the father was difficult because the father was emotionally distraught. The mother told Ms Richardson that she and the father had been fighting and that the father had been physically abusive towards her. She also said that the father and his friend had been drinking alcohol and that the paternal grandparents had been providing care for T.F.Jr., including overnight. Both parents confirmed that since B.'s birth the father had been in a five day detox program. The information provided by the parents confirmed the Society's concerns about the stability of the parents' relationship, and the father's continuing struggle with illegal substances.
28At trial the father confirmed that he started abusing prescription drugs again after B. was born. He said that he and the mother talked about it and he agreed to enter a five day detox program to get back on track. He also agreed that after B.'s birth he was drinking alcohol but he said he was drinking at his grandfather's home and not around the children. Both parents acknowledged that there was conflict in their relationship prior to the apprehension and that they were fighting and had "pushed each other around". The father also described the incident that the "caller" had reported to the Society, involving a conflict between the father and the caller, three days prior to the apprehension. He said the "caller" was a friend of the mother's named Courtney and that the mother and Courtney were at his home when Courtney started getting rude and he asked Courtney to leave. He said Courtney slapped him in the face and he asked his mother to drive Courtney home. He said the police were called and then the mother and Courtney left and no charges were laid. He said that at the time of the incident B. and T.F.Jr. were both in bed sleeping.
Court Proceedings After the Apprehension
29Following the apprehension, which occurred without a warrant on April 26, 2011, the Society brought the matter before the court on May 2, 2011. At that time the parents were represented by counsel and they consented to a temporary order placing both children in the care and custody of the Society. The court order provides that access to the parents is to be in the discretion of the Society and supervised by the Society or an approved third party three times per week for each parent. The matter was adjourned to June 6, 2011 at which time a placement hearing was scheduled for July 11, 2011. On July 11, 2011 the placement hearing was adjourned to September 11, 2011 and on September 11, 2011, because the parents had not yet filed responding affidavits, the placement hearing was again adjourned to October 3, 2011.
30On October 3, 2011 the Court ordered a parenting capacity assessment and an order was made removing the mother's counsel as solicitor of record. The father's counsel did not show up that day. The matter was adjourned again to November 7, 2011 to set a new placement hearing date. By November 7, 2011 the mother had not yet retained new counsel and the matter was adjourned again to December 5, 2011. On December 5, 2011 an order was made granting the parents Christmas access on December 21st from 10 a.m. to 2 p.m. and on December 24, 2011 from 10 a.m. to 2 p.m. supervised by the paternal aunt. The matter was before the court on December 19, 2011 at which time a settlement conference was scheduled on February 6, 2012. The settlement conference was adjourned several times, because the mother was still trying to retain counsel.
31The parenting capacity assessment was received by the Court and the parties on February 17, 2012 and based on the recommendation of the assessor that both children be made Crown wards with no access, the Society brought a motion to amend its protection application from Society wardship to Crown wardship. On April 11, 2012 trial dates were scheduled.
Parents' Access
32Throughout the 18 months between the apprehension of the children and this trial the parents' access remained supervised at the Society offices for six hours per week, divided according to a two week schedule, into three, two hour visits one week, and two, three hour visits the next week. The parents have attended all access visits. The parents repeatedly asked for visits to be supervised by family members or to occur at a location outside of the Society offices, but the Society refused these requests. Immediately after the apprehension the maternal grandparents put forward a plan to be considered as a kin placement for the children. Ms. Richardson testified that the maternal grandparents could not be approved as a "kin in care" placement because the maternal grandfather did not have identification and could not provide a criminal record check and because the maternal grandparents did not have a driver's licence. Under cross examination Ms. Richardson conceded that the maternal grandparents could have been assessed for a "kin out of care" placement but this assessment was not done. She also agreed that at the time of apprehension the maternal grandparents could have been approved for an emergency placement, without a criminal records check, but the after-hours worker had been directed to apprehend B.
33The Society's rigid position on access is difficult to understand. Ms Richardson describes the access visits as chaotic and stressful and the parents agree. The parents and grandparents say the visits have been extremely difficult because they have been forced to visit with the children in a small room at the Society offices. Even though there is a two way mirror through which a Society worker could observe the visits, the supervising worker always sits in the already crowded access room. If that worker needs a washroom break another worker comes in to relieve her. If the Society has to give the parents letters or legal documents, a worker interrupts the visits to serve the parents. When the Society was requiring that the parents submit to weekly, observed urine tests these tests were conducted during the supervised access visits.
34The father testified that T.F.Jr.'s behaviour during the supervised visits is very different from his behaviour before he was apprehended. He says T.F.Jr. is very hyper during the visits and doesn't listen to him the way he did when he lived at home. He said that T.F.Jr. asks him at every visit if he can come home and tells his father that he doesn't want to be in the foster home anymore. The father became visibly upset when describing the access visits, and the mother and grandparents cried during this testimony. The father testified that he thinks T.F.Jr. blames himself for being taken from the home and he asks "all the time" why he can't come home for visits.
35Although both parents have struggled with their drug addictions since the children were apprehended, extended family members have always been willing to supervise the visits. At trial Ms. Richardson testified that the Society was unwilling to allow the father to have access with the children in his home because the Society felt that home visits would be too upsetting to T.F.Jr. who has always become distressed when separated from his parents, and particularly his father, at the end of supervised access visits.
T.F.Jr.'s Behavior
36The evidence is overwhelming that T.F.Jr. has been negatively impacted by the apprehension. At the time he was apprehended T.F.Jr. was thriving in his father's care. He had been attending preschool for approximately eight months and the father says that he was doing well at school, with no behaviour issues there. He was meeting his milestones and physically healthy. The parents and grandparents all describe T.F.Jr. as happy, healthy, well-adjusted, bright and outgoing child before he was apprehended. The Society did not present one iota of evidence to suggest otherwise. I note that the parenting capacity assessment does not even refer to the time that T.F.Jr. spent in preschool before his apprehension and it appears that neither the assessor nor anyone from the Society received any information at all, from any source, that T.F.Jr. was exhibiting any behavioural, developmental or other issues before he was apprehended.
37K.E. testified. She has been a foster parent with the Society for twenty years. Both children were placed in her care following their apprehension. B. is still with her but T.F.Jr. was moved to a second foster home after six months, on September 9, 2011, at Ms. K.E.'s request. Ms. K.E. testified that T.F.Jr. had significant behavioral issues and she felt that she could not give him the extra care and attention he needed. She said T.F.Jr. was angry and aggressive towards B. and other children in the home, had a hard time sleeping, and would throw temper tantrums for hours. She said that T.F.Jr. frequently said he missed his father and wanted to be with his father.
38Ms K.E. testified that B. has settled in well to her home and is very attached to her. She is walking and talking, plays independently and is a good eater. There are no issues with B. but Ms K.E. has noted that B. has difficulty sleeping on days that she has access visits.
39After six months in care, T.F.Jr. was separated from his sister and moved to a second foster home where he remains today. His current foster mother, K.S., has been a foster parent for four years. She says that T.F.Jr.'s behaviour has improved since coming to her home. She says that when T.F.Jr. first arrived in her home he had anger and hostility issues, and expressed his angry feelings violently, threatening to kill and hurt people. She said that T.F.Jr.'s behaviour has improved but he does have problems after visits. She said that T.F.Jr. strongly identifies with his father and is attached to his sister. She said that when he first moved to her home T.F.Jr. would say that he wanted to be with his dad and missed his dad but she hasn't heard this in a while.
Parents' Drug Use
40Throughout the Society's involvement with this family, the main protection concern has been the parents' drug use. Both parents were on methadone when T.F.Jr. was apprehended at birth, over five years ago. After two months T.F.Jr. was returned to the parents' care pursuant to a six month supervision order which terminated in June 2008. Although the parents continued with the methadone program, records from the program, submitted as Exhibit #3 at trial, reveal that both parents continued to test positive for oxycodone and opiates. The father attended for methadone 54 times and tested positive for oxycodone 17 times between July 28, 2008 and December 22, 2008; opiates were present eight times between August 7, 2008 and October 20, 2008. The mother attended the methadone program 23 times and oxycodone was present 21 times between July 28, 2008 and December 22, 2008 and opiates were present nine times between August 7, 2008 and December 22, 2008.
41The Society first became aware of the parents' continued use of oxycodone and opiates in June 2009 when Dr. Hadley, the supervising physician for the methadone program, called the Society to report that both parents were testing positive for high levels of oxycodone.
42According to the clinic records, the parents' use of oxycodone continued at approximately the same level throughout 2009 but opiate use was detected on only one occasion in 2009 for each parent. The father attended the methadone clinic 50 times from January to December and tested positive 26 times during 2009. During this same time the mother attended 48 times between January and July and oxycodone was present 25 times. It is significant to note that throughout some of this time period the parents were being supervised by the Society. There is no evidence that the parents' use of oxycodone or opiates while they were on methadone was negatively affecting T.F.Jr.
43In January 2010 Dr. Hadley called the Society a second time to report that the parents were again testing positive for high levels of oxycodone. Drug testing of the parents in January 2010 was positive for oxycodone on at least one occasion. The mother also tested positive on one occasion for a low level of cocaine. Despite the drug test results Ms. Richardson was satisfied that T.F.Jr. was safe in his parents' care and no protection intervention was initiated. Ms. Richardson testified that the home was clean and organized, T.F.Jr. was doing well, and the Society had not received any community reports with concerns about the care that T.F.Jr. was receiving.
44The parents stopped attending the methadone program on January 29, 2010. At trial they testified that they stopped the methadone because the program had moved from Picton to Belleville and it was difficult for them to arrange transportation to Belleville.
45Two months later in March 2010, the father called the Society to say that the mother had left the relationship, was back on drugs and he was worried about her coming to take T.F.Jr. At that time the father entered into a voluntary supervision agreement which remained in place until this protection application was commenced in March 2011.
46During the period of voluntary supervision, the father submitted to hair follicle testing on March 30, 2010 and June 23, 2010 and both tests were positive for marijuana only. The Society was aware of the father's marijuana use and the fact that the father had a medical licence to use marijuana.
47Although one of the Society's main protection concerns when the children were apprehended on April 26, 2011 was drug use by the parents, the Society did not start testing the parents for drugs until September 2011.
48Dr. Melissa Snider-Adler, an addiction treatment physician and medical review officer with DriverCheck Inc., a mobile drug testing company, testified and was qualified to provide expert opinion evidence about drug testing interpretation. She testified that on September 28, 2011 the father provided a hair follicle sample which was positive for marijuana only, confirming no use of oxycodone or opiates for the previous three months. On the same date the mother's hair follicle test showed oxycodone at a moderate level and marijuana at a very low level, indicating use of these drugs at some point in the previous 90 days.
49Dr. Snider-Adler testified and reviewed hair follicle test results conducted on both parents between April and October 2012. The test results reveal ongoing use by the parents, at low levels, of hydromorphine, morphine, and oxycodone between January and October 2012.
50It is clear from the evidence at trial that both parents continue to struggle with drug addiction. The parents' family doctor, Dr. Rice, testified that throughout 2011 both parents were dealing with legitimate health issues that justified the prescription of analgesic (narcotic) pain medication but he was concerned about drug seeking behavior by both parents. He testified that the father complained of back pain but Dr. Rice was reluctant to prescribe strong analgesics because of the father's drug dependency history. The father admitted to Dr. Rice in March 2011 that he was illegally purchasing oxycodone and morphine on the street. Dr. Rice finally ordered an MRI on September 22, 2011 and the MRI confirmed that the father has sclerosis, or joint inflammation and several bulging discs. After receiving the MRI results, Dr. Rice referred the father to the pain clinic where once again the father was refused narcotics but offered back injections for pain control. To this day the father has not followed up with the pain clinic and has never had the recommended lumbar injections. In December 2011 the father again admitted to Dr. Rice that he had been buying narcotics on the street for his back pain. Dr. Rice testified that in his opinion the father's back pain could be dealt with by physiotherapy, Tylenol and good back care but the father repeatedly sought out opiates in spite of Dr. Rice's concerns. Dr. Rice testified that he talked to the father about going back on methadone but he declined.
51During this time Dr. Rice was also seeing the mother who was suffering from dental pain due to severe gum disease and multiple cavities. Dr. Rice did prescribe Tylenol 3 and oxycocet in August 2011 and he gave her a second prescription for oxycocet and penicillin in September 2011. However, when the mother repeatedly failed to follow up with appointments Dr. Rice arranged for her with a dental surgeon to have teeth extracted. Dr. Rice became concerned that the mother was avoiding getting the dental work done and was more interested in receiving the drugs. By January 2012 Dr. Rice refused to prescribe any more pain medication for the mother. At trial the mother confirmed Dr. Rice's concerns about her drug seeking behaviors during this time. She testified that her teeth remain untreated and she is still suffering from dental pain. She said she has now arranged another appointment to have seven teeth extracted.
52Since the children were apprehended, the father has also been seeing Dr. Burley, a psychiatrist. He was prescribed chlonazepam which he took for about three to four months during the spring of 2012. He said the medication made him dopey and off balance and caused him to slur his speech so he stopped taking it about three months ago. He testified that he believes it was the chlonazapam that caused him to act impaired during an access visit in May 2012.
Parents' Evidence About Drug Use and Drug Treatment
53At trial the father testified in a forthright, credible manner about his struggles with drug abuse. When asked about a recent hair follicle test from October 2012 that shows high levels of hydromorphone, he admitted that he has recently illegally purchased pain medication on the street after having six teeth extracted. He also admitted that over the past 18 months that the children have been in care he has "messed up" and fallen off track on occasion because he has been frustrated and stressed out. He acknowledges that drug addiction remains an issue for him and he is willing to enter a treatment program. He attends NA meetings on a weekly basis and he has attended an addiction group through his church. He also attended counselling sessions with Charles Tapp, approximately 10-15 sessions between the fall of 2011 and the spring of 2012, but he had to stop going because his mother was paying for the $70 sessions and she could no longer afford to keep paying. He asked the Society to fund the sessions but the Society refused. T.F.Sr. has also been attending church for the past year and he goes to an addictions group at his church every Wednesday night. He testified that he volunteers at the church every Wednesday when he sets up the tables for a free supper there. After the supper he stays for the addictions group. He also attends church on Sundays. His minister at the church recommended the counselling sessions with Charles Tapp. T.F.Sr. has recently made an appointment with the addiction center and says he is committed to following any treatment recommended to him.
54The mother also testified in a sincere, forthright manner and I found her to be credible. She also admitted that she knows she has a long standing drug problem. She was on the methadone program and doing well when the children were apprehended but since they were taken she has "messed up" a few times. She says the last time she used illicit drugs was in April 2012 and she doesn't understand the recent hair follicle tests. She admits that in the past she didn't follow through with counselling at the addictions centre but she says she was attending counselling with Charles Tapp. She is living with her parents and plans to stay with them for the foreseeable future. They have secured a three bedroom home in Belleville as of November 5th. She says living with her parents has made a difference and they are helping her to get to her appointments. She wants to be drug free. She has an appointment with the addictions centre in Belleville on November 12, 2012 and she intends to follow up with whatever treatment is recommended. She has scheduled dental appointments to have teeth extracted.
55Both parents testified that at this point they are friends but they have no immediate plans to live together. K.S. is living with her parents in Belleville and T.F.Sr. is still in the same home in Bloomfield. They both describe their relationship as positive and mutually supportive at this time. The parents have been attending all access visits together since December 2011. They both explained that they attend visits together so that they can both have as much time as possible with the children. There is no evidence of any conflict between the parents during the access visits.
56K.S.'s parents both testified. They are committed to their daughter and their grandchildren. They are willing to have K.S. and both children live with them and they want to support K.S. while she gets treatment for her drug addiction.
57T.F.Sr.'s mother testified. She is very supportive of T.F.Sr. and willing to help out if T.F.Jr. is returned to T.F.Sr.'s care. Before T.F.Jr. was apprehended she was in and out of T.F.Sr.'s home three or four times each day. She drives a car, and is willing to drive T.F.Sr. to appointments with the pain clinic or to receive methadone.
58The parenting capacity assessment was completed by Ms. Visca in February 2012. In her assessment Ms. Visca writes that "it has been clear throughout this assessment that the children's lives have been characterized by chaos, instability, inconsistency and unpredictability" but there is no evidence to support this statement. In fact, the evidence presented at trial makes it clear that before T.F.Jr. was apprehended he was thriving in stable, loving home environment. There is evidence that in the weeks following B.'s birth, there were some problems. The father admits that he was drinking too much and both parties admit that the mother asked him to enter a detox program and he did so that he could get "back on track". At trial he testified that at the detox program he learned about NA and has been attending NA weekly ever since. The mother was back on methadone. Hair follicle testing finally arranged by the Society in September 2011 showed only marijuana use by the father and oxycodone and marijuana for the mother. I note that at this time the mother was being prescribed oxycocet by Dr. Rice for her dental pain.
59The evidence suggests that the parents' attempted reconciliation may have been unravelling in the weeks after B. was born. But on the night the children were apprehended the parents were actually shopping at Walmart together. However, there is no evidence that these relationship issues were negatively impacting the children. According to all of the witnesses T.F.Jr. was a happy, healthy, bright well-adjusted child before he was apprehended. There is evidence that T.F.Jr.'s dental health was neglected and he had multiple cavities requiring attention when he was admitted to care. At the time of the apprehension T.F.Jr. had been attending a preschool program several times each week. It is disappointing that neither the assessor, nor anyone from the Society, bothered to contact T.F.Jr.'s preschool teacher to find out how he was doing at school. No evidence was presented about T.F.Jr.'s behavior at preschool. The father testified that T.F.Jr. did well in school and received only positive reports about his academic and behavioral progress there.
60I cannot draw any inference about the parenting skills of the parents from the evidence about the behaviour problems exhibited by T.F.Jr. in the foster homes or during the access visits because there is not one piece of evidence that T.F.Jr. was a child with behaviour problems before the apprehension. It is, however, reasonable to draw an inference that T.F.Jr.'s behavior difficulties since being apprehended are a result of the emotional trauma he has experienced being taken from the only home he has ever known, separated from his parents and in particular his father with whom he has a close emotional connection, and then separated from his sister and moved from one foster home to a second foster placement. He also goes to a "relief home".
61B. spent the first two weeks of her life in the hospital withdrawing from methadone, and had only been in her mother's care for three weeks when she was apprehended. Once again, there is no evidence of any chaos or instability in B.'s life prior to her apprehension. There is also no evidence about any neglect or health issues affecting B. when she was apprehended. It is to be expected after spending the first 18 months of her life in care that B. has bonded to her foster mother.
62The Society recently funded a psychological assessment of T.F.Jr. The psychological assessment report of Dr. Cao, dated August 29, 2012 was admitted as an exhibit at trial. T.F.Jr. scored in the average and high average range for verbal and non-verbal functioning. Dr. Cao notes that T.F.Jr. was compliant throughout the lengthy testing process. She describes T.F.Jr. as "generally cooperative, compliant, talkative and sociable". She notes that T.F.Jr. spontaneously talked about his father and sister on "many occasions" and said he feels sad when he isn't with them. Dr. Cao observed T.F.Jr. and B. together and noted that T.F.Jr. was physically affectionate with her.
63Unfortunately Dr. Cao refers only to the November 2011 and March 2012 school reports detailing T.F.Jr.'s progress in junior kindergarten at Pinecrest school. Dr. Cao also failed to request school reports for the period when T.F.Jr. was attending preschool while still living at home, even though T.F.Jr. attended preschool at the same school location.
64It is also unfortunate that Dr. Cao's assessment of T.F.Jr. focuses on the changes in T.F.Jr.'s behavior since being placed in his current foster home approximately one year ago. The report focuses on the improvements in T.F.Jr.'s verbal and physical aggression during the past year. Because Dr. Cao made no attempt to find out what T.F.Jr.'s behavior was like before he was apprehended this report is of little assistance to the Court.
65I am not prepared to draw any inference about the parents' ability to care for the children from the evidence about the sometimes chaotic nature of the access visits. It is truly unfortunate that, with access left in their discretion, the Society has maintained its position for the past 18 months that all access visits must occur in the supervised access room at the Society offices. The parents have not been given a realistic opportunity to demonstrate their ability to care for their children. The Society should have arranged home visits or regular community-based visits, supervised either by the Society or an approved family member, long ago.
Decision
66The most significant child protection concern for the Court is the long standing, and still active, drug addictions of both parents. Both parents have medical conditions that cause them pain, but both choose to buy street drugs rather than get appropriate medical or dental treatment. It is clear that Dr. Rice's concerns about the parents' drug seeking behaviors were well-founded. But I also see that on occasion they have both "messed up" as they put it and turned to drugs not just to deal with their physical pain, but as a way of dealing with or escaping from the stress and loss they have suffered since the children's apprehension.
67I am satisfied that both parents love their children very much and the time that their children have been in care has been emotionally devastating for both of them. I accept their evidence that they are friends and supportive of each other but they are not in a relationship right now and have no immediate plans to reconcile. I was impressed with the mother's evidence that if she is able to get funding from Ontario Works for further counselling sessions with Charles Tapp, she will invite T.F.Sr. to join her in the sessions so that he too can benefit from further counselling with Mr. Tapp. This evidence confirms my view that the parents have achieved some stability in their relationship in that they are united in a common purpose to overcome their drug addictions and regain care and custody of their children. Their joint attendance at access visits for the past year so that they could both maximize their time with their children is further evidence of their positive, supportive relationship.
68The Society is seeking an order of Crown wardship with no access. A Crown wardship order is one of the most profound orders a Court can make and such an order can only be made on the basis of compelling evidence and only after a careful examination of possible alternative remedies. In determining the best interests of the children, I have considered all of the factors set out at Section 37(3) of the Child and Family Services Act. In particular I have considered T.F.Jr.'s strong emotional attachment with his father, the merits of the Society's plan compared with the merits of returning the children to their parents, the effects on the children of a delay in the disposition of this case, and the risk that the children may suffer harm through being permanently removed from or returned to their parents' care.
69I have also considered the degree to which the risk concerns which existed at the time of the apprehension still exist today. The problem in this case is that having heard the Society's evidence supporting the apprehension of these children I find that had the evidence been tested through the conduct of a temporary care and custody hearing, the Society would have been unable to establish, on credible and trustworthy evidence, reasonable grounds to believe that there was a real possibility that if either child had been returned to the parents it was more probable than not that they would suffer harm. The Society would also have been unable to establish that the children could not have been adequately protected by terms and conditions of an interim supervision order. The Society argues that the apprehension was justified based on information from an unidentified caller that there had been conflict in the home between the father and the caller, and that the parents were not living together as they had led the Society to believe, and that T.F.Jr. had been left in the care of the grandparents overnight. Had the Society worker waited just a half hour for the father to return that night, the father could have explained that he thought he had made appropriate arrangements with his grandmother to be present and that he planned to move T.F.Jr. into his own bed for the rest of the night. The parents could also have explained what was happening in their relationship at that time.
70It is not clear from the evidence at trial whether the parents were even technically in breach of the interim supervision order, but even if a breach had occurred, there is no evidence that the breach of a term of supervision created a circumstance that made it likely the children would suffer harm. It is very concerning that the decision to apprehend both children was made during office hours with input and direction from the supervisor, Ms. Renaud, leaving Ms. Richardson and the after-hours worker with no discretion to abandon the plan to apprehend upon seeing for themselves that the children appeared safe and healthy and no ability to work out other temporary arrangements by involving the grandparents or extended family members as supervisors and clarifying whether the parents intended to reside together or apart. The parents had already established that they were able to cooperate with the Society pursuant to supervision orders and voluntary agreements.
71I must also consider whether, since the apprehension, the Society has given the parents an opportunity to demonstrate their parenting abilities. In this case I find that the Society's restrictive approach to the parents' access, even with the knowledge of the father's proven parenting abilities towards T.F.Jr. and given the commitment of the extended family members of both parents, was unreasonable. Access should have been expanded and could have occurred safely in the home of either parent with the extended family supervising. It is disturbing that the Society's decision not to allow T.F.Jr. to have home visits was in reaction to T.F.Jr.'s clear distress separating from his father at the end of visits.
72I am also concerned about the Society's failure to support these parents after the children were apprehended. All the Society did to address the parents' drug problems was to require them to submit to drug testing. After the children were apprehended both parents had demonstrated a commitment to attending counselling sessions with Charles Tapp. Both parents testified at trial that they found these counselling sessions helpful but they simply could not afford to continue with them. The Society had both of their children in care and wanted the parents to address their addiction issues through counselling. It is astonishing that the Society did not exercise some discretion in arranging to fund ongoing counselling even though the Society didn't have an ongoing contract for service with Mr. Tapp.
73The evidence presented by the Society does establish that both parents are struggling with addictions to oxycodone, morphine, and hydromorphine. Recent hair follicle tests reveal recent use by both parents. I find that the parents' long standing drug addictions and regular and recent use of these drugs does place both children at risk of physical and emotional harm and therefore the children are in need of protection. There is no evidence that the parents lacked parenting skills when the children were apprehended and the relationship between the parents has improved to become stable and mutually supportive even though their plan is to remain separated. Both parents have the support of their extended family members and both parents are willing to participate in ongoing drug testing and treatment.
74I find that it is in the best interests of the children that they be returned to the care of their parents, pursuant to a reintegration plan to be developed by the Society and approved by this Court.
75At the time of the apprehension T.F.Jr. was living in the father's primary care. There is a strong emotional attachment between T.F.Jr. and his father. The mother concedes that T.F.Jr. is closer to his father. The father remains in the home T.F.Jr. knows, and he has the support of his parents, sister and grandmother who live in the same building. All of these people were closely involved in T.F.Jr.'s care prior to his apprehension. T.F.Sr.'s grandmother, sister L.F., and aunt, J.B., have all been previously approved by the Society to babysit T.F.Jr. for short periods of time. The Society's concerns about the paternal grandparents stem from the grandfather's abusive behaviour towards his own children, including T.F.Sr., and the grandmother's failure to protect her children and therefore the paternal grandfather should not be left with T.F.Jr. in a caregiving role. It is clear from the evidence that the paternal grandmother was closely involved in T.F.Jr.'s care prior to his apprehension and she should also be approved as a caregiver. During the trial T.F.Sr. testified that on the night of the apprehension his grandmother agreed to watch T.F.Jr. but she was reluctant to enter his home because of his large dog. T.F.Sr. also has a 5 foot python that he says does not present a risk to T.F.Jr. because T.F.Jr. cannot open the aquarium. I disagree. T.F.Jr. is smart and he is bigger and older. The snake has to go. If the father's mother and grandmother are reluctant to babysit T.F.Jr. in his own home because of the dog then I want the father to also consider finding another home for the dog. Both the dog and the snake are distractions and the father needs to focus all of his energy on overcoming his drug addiction and caring for his son.
76The mother is now living in Belleville with her parents. Although only for a very short time, B. was in the mother's primary care at the time of her apprehension and she should be placed in her mother's care pursuant to a supervision order and on the condition that the mother continues to live with her parents. The maternal grandparents are a strong support for the mother but the maternal grandfather admits that he is an alcoholic. He says his drinking has decreased since his wife's recent diagnosis and treatment for cancer. He testified that he is willing to attend regular AA meetings.
77Until the parents' drug tests confirm that the parents have stopped using non-prescription street drugs, their care of their children will need to be living with and supported by a family member. L.F., L.F.F., M.F., J.B., S.S. and S.S.1 may all supervise the parents' care of the children, but S.S. is not to consume alcohol 12 hours prior to or when he is in a supervising or caregiving role towards either child.
78Both parents suffer from pain related to a legitimate medical condition but neither parent has followed through with the recommendations of their family doctor. The father has a medical marijuana licence but Dr. Rice is concerned that he has increased his use of this drug and the father's marijuana use must also be monitored. The father must follow through with the recommendations of a pain clinic, including receiving lumbar injections, and the mother needs to get her teeth fixed. The father already attends NA meetings and an addictions group at his church. Both parents have already set up meetings at the addictions centre. They testified they are willing to follow through with any recommended treatment.
79Beginning immediately, the parents' access visits shall occur in their respective homes and the focus of the access must be on maximizing the access between the parent and child that is being placed in that parent's primary care. The father's access with T.F.Jr. shall immediately be expanded to full days and will occur on days when T.F.Jr. is not in school. These visits shall occur in the father's home and are to be supervised by the Society or an approved third party. The Society will transport B. to the mother's home for visits. These visits shall also be extended and may be supervised by the Society or an approved third party.
80The Society shall develop a reintegration plan for each child to be approved by the court. It is anticipated that T.F.Jr.'s reintegration into the care of his father will occur at a different pace than B.'s reintegration into the care of her mother. Both parents and the children will require significant support from the Society and possibly other agencies as these reintegration plans are implemented.
81The following terms of supervision shall be included in the supervision order and additional terms of supervision may be developed by the Society and submitted to the Court for approval:
The father will continue to reside in his current residence and the mother will continue to reside with her parents. The father shall arrange to have the python snake removed from his residence within seven days.
The parents will submit to monthly hair follicle tests, three month segmented. The father is to grow his hair to a length of at least three inches for the purpose of this testing.
The parents are to submit to random observed drug/alcohol tests. In the first three months these tests shall occur weekly.
The parents are to present their drug treatment plans to the Society by the end of November 2012 and are to sign consents for the treatment providers.
S.S. shall present his alcohol treatment plan to the Society.
L.F.F. shall submit to hair follicle testing if requested by the Society.
All caregivers are to sign any consents requested by the Society.
If the drug treatment plan of either parent involves methadone the Society will assist with transportation if necessary.
The Society will fund counselling sessions between the parents and Charles Tapp if there is no other funding source available and if the parents wish to see Charles Tapp as part of their addiction treatment plans.
Such additional terms as may be proposed by the parties, subject to the approval of this court.
82This matter is adjourned to November 16, 2012 at 1:30 p.m. at Century Place in Belleville to review the reintegration plan.
Released: November 5, 2012
Signed: Justice E. Deluzio