BELLEVILLE COURT FILE NO.: DC-05-0424-00
DATE: 20050830
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HASTINGS CHILDREN’S AID SOCIETY
Cory B. Deyarmond, for the applicant
applicant
- and -
E. I.
Moira J. Moore, for the respondent
respondent
HEARD: July 6, 2005
BELCH J.
On Appeal from the Order of The Honourable Mr. Justice D.K. Kirkland
of the Ontario Court of Justice dated February 1, 2005
[1] E.I. (mother) appeals Kirkland J’s February 1, 2005 decision granting Crown Wardship with no access of the child E.W.N.C.I. (C.I.) to the Hastings Children’s Aid Society (Society), requesting this court set aside the order so she might have custody of the child.
[2] The biological father’s whereabouts are unknown and he did not participate in the court proceedings.
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION BY S.45(8) OF THE CHILD AND FAMILY SERVICES ACT
Background
[3] The mother had a history with another Children’s Aid Society, not Hastings, as a child in need of protection. Her counsel concedes she is somewhat intellectually challenged. She lives on her own; Ontario Works supplies an income, and she has attended educational upgrade classes. She has no prior history with children, nor has she any criminal record nor substance abuse concerns.
[4] During her pregnancy the mother contacted her former worker at the other Children’s Aid Society to share her news. That worker contacted the Hastings Society, advising of mother’s cognitive delays and lack of parenting ability. The Society placed birth alerts with the local hospital.
[5] Meanwhile, mother reached out to community resources to assist her. She sought help from the Anchor of Hope, the Gateway Community Health Care Centre, Healthy Babies and Healthy Children, and Adult Protective Services.
[6] C.I. was born in […], 2003 and one day later apprehended at the hospital by the Society. There were no referrals to the Society from the hospital staff. The following day, the Society brought an application to make the child a ward of the Society for six months, with access in the discretion of the Society. Access was twice weekly for two hours each visit and four months later changed to one visit of two hours weekly, at the Society’s office. Access never took place at the mother’s home nor overnight.
[7] The Society amended its application to one of Crown Wardship no access. A parenting capacity assessment was completed by Sharlene Weitzman, M.S.W. and it made reference to a psychological report authored at about the same time by Susan Beckett, Ph.D., C.Psych. Both of these authors gave evidence at trial, as well as having their reports filed with the court.
[8] Ms. Beckett’s report contains the results of the psychological testing she carried out with the mother. The test results indicated the mother’s overall level of cognitive functioning was in the mildly delayed range at the first percentile, and her non-verbal reasoning and visual-spatial abilities score placed her in the delayed range. Her social comprehension abilities, including common sense reasoning and social judgment fell at the second percentile. Much of the testing that was carried out could not validly interpreted because of the mother’s defensive response style and her inability to understand items contained in the tests themselves.
[9] Ms. Weitzman reviewed these results and considered them along with her observations as well as written observations from others in the community. She reported “it is possible that the mother’s capacity to parent the child could be more effectively evaluated if her responsibilities to do so were increased… if she is successful in meeting these needs, then a plan for her and her mother to co-habit in order to provide full time care for [C.I.] could be pursued.” This last remark talked of the possibility of the child’s grandmother being considered as a support resource for the mother. She identified the period of August to November, 2004 as a possible three month window of opportunity to continue to increase responsibilities to assess if the mother with intense support in place can effectively and safely care for C.I. and in the event she was unable to adequately make gains for the child’s care by his first birthday, then an application for Crown Wardship without access for the purposes of adoption should be brought before the courts.
[10] Evidently, the grandmother never did move in with her daughter and in its observations of the access visits the Society concluded the mother was unable to pick up even the basics of parenting and concluded there was no need to offer any further services.
The Applicant’s Position
[11] The applicant argues:
a) the Society anticipated the mother would be unable to care for the child due to her intellect and her difficult childhood;
b) The Society did not allow mother adequate opportunity to learn to parent her child; and
c) Despite this lack of opportunity and the lack of definitive evidence that the mother would be unable to learn to care for her son, the trial judge made an order granting Crown Wardship.
The Respondent’s Position
[12] The Society’s position involves a re-statement of the appellant’s issues as follows:
a) Is the low intellectual functioning of the appellant grounds for apprehending the child?
b) Does the respondent have an obligation to provide the appellant with an opportunity to parent or learn to parent her child? and
c) Did the trial judge err in granting an order that the child be made a ward of the Crown with no access by failing to weigh properly evidence concerning the opportunity for the appellant to parent or evidence concerning the appellant’s parenting capacity?
Intellectual Functioning
[13] Both counsel cite the case of The Children’s Aid Society of Kingston v. F.R., [1975] O.J. No. 1686, a decision of Thomson J. and in particular paragraph 8:
…First of all, the fact of low parental intelligence should not be taken as determinative in itself of the child’s need for protection. Rather, the question should be one of deciding whether, in light of their individual capabilities, these parents are able to meet their parental responsibilities. If the answer to this question is no, then the judge should decide whether, given the proper assistance and intervention, the parents can be provided with the tools necessary to care adequately for their child. This issue should not be resolved by simply noting the difficulties involved in securing the needed help when the child remains within the home… Only if it is felt that the risk to the child is too great, even with outside help, should the court remove the child from the home.
[14] The respondent states the Society did not rely upon the appellant’s intellectual functioning as determinative in itself of the child’s need for protection at the date of apprehension or at trial, but relied on a number of facts provided as evidence at the trial, and as summarized under the Additional Facts in the respondent’s factum. These additional facts were that previous assessments in 2000 and 2002, as well as personal interviews with the appellant at the time of the birth, raised a number of concerns regarding the appellant, including suicidal impulses, the appellant claiming to hear voices, the appellant harming herself, very limited cognitive functioning and, although she did not demonstrate any signs or symptoms of any significant psychotic illness or mood disorder, that she presented as a somewhat handicapped child with many personality disorder features. The Society argued that whether there had been an adequate period of time allowed the mother was not the test, rather the Child and Family Services Act states the paramount purpose of the Act is to promote the best interest, protection and well-being of children, and all other purposes of the Act, including providing help to parents, must be consistent with the best interest, protection and well-being of children. The test in deciding the placement of the child is not the failure of the respondent to place all of its resources at the disposition of the appellant. The only test is what is in the best interest of the child.
[15] The mother argues there is no definitive evidence that she would be unable to learn to care for her child. She points to the Children’s Aid Society of Oxford County v. D.T., [2001] O.J. No. 1126, paragraph 13:
…In cases where access is denied to the natural parents it must be done on the basis of clear and compelling evidence
and also to the case of the Children’s Aid Society of Toronto v. L.S., 2004 ONCJ 128, [2004] O.J. No. 3227 at paragraph 133:
Subsection 57(3) permits the making of a Crown wardship order only where there are no less disruptive alternatives available that would be adequate to protect the child from harm
and at paragraph 135:
…in circumstances where parenting skills may be lacking, a Crown wardship order should not be made without first giving that parent an opportunity to access available resources in order to acquire those skills.
[16] The respondent replies the appellant has not demonstrated the trial judge made any error in principle or misapprehension of material evidence in concluding that the child is in need of protection, and relies on Adams v. McLeod 1978 CarswellAlta 39 at paragraph 5, where the court quoted with approval from McKee v. McKee, [1951] A.C. 352, 2 W.W.R. (N.S.) 181 at 186, [1951] 1 All E.R. 942, [1951] 2 D.L.R. 657 as follows:
…the question of custody of an infant is a matter which peculiarly lies within the discretion of the judge who hears the case and has the opportunity generally denied to an appellant tribunal of seeing the parties and investigating the infant’s circumstances, and … his decision should not be disturbed unless he has clearly acted on some wrong principle or disregarded material evidence.
Conclusion
[17] The appeal is dismissed. The trial judge’s endorsement while relatively short is precise. It addresses the very issues raised again on this appeal.
[18] To begin with, the trial judge acknowledged the parental capacity assessment and noted,
Effectively, the assessment recommended that the CAS assist the mother to develop and hone childcare skills through increased responsibility and guidance. In hopes that the mother might acquire the necessary skills to parent the child, eventual integration with the mother was the recommendation. Should the mother fail to achieve adequate skills, adoption was the recommendation.
The evidence is that little responsibility was shifted to the mother during the periods of access. Mr. Phillips testified that the mother’s inability to manage a bath for the child required immediate rescue by the supervisor. The evidence further revealed that the mother had great difficulty internalizing directions beyond the moment they were given. In virtually every access visit the mother requested assistance from the supervisor of the visit on a number of occasions.
…Although she has always been well intended, her ability to acquire and convert information in a practical way is absent.
[19] The trial judge considered Children’s Aid Society of Kingston v. F.R., (supra) and in fact cited the same passage as is set out earlier in paragraph 13 of these reasons, stating “This Court fully adopts the principle enunciated by Justice Thomson.”
[20] Addressing Children’s Aid Society of Oxford, (supra) that access should only be denied to the natural parents on the basis of clear and compelling evidence, it is obvious the trial judge by his use of the words “the evidence further revealed that the mother had great difficulty internalizing directions beyond the moment” etc., showed that he was considering the evidence, and while he did not identify less disruptive alternatives that might be available as required by the Children’s Aid Society of Toronto v. L.S., (supra), his remark that “her ability to acquire and convert information in a practical way is absent”, reveals he is satisfied the mother was unable to parent and care for the child even with further assistance.
[21] The trial judge knew the report ordered by the Society contained a recommendation mother receive assistance in child rearing from the Society. The trial judge knew the Society concluded from its observations of mother with the child that mother could not manage even the basics of parenting, and reduced rather than expanded her access. The trial judge decided the Society’s decision was the correct one and I am satisfied the trial judge not only considered the evidence but was in a better position than this court to observe the parties and to assess the evidence. I am not satisfied that any error has been shown on his part.
MR. JUSTICE DOUGLAS BELCH
Released: August 30, 2005
BELLEVILLE COURT FILE NO.: DC-05-0424-00
DATE: 20050830
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HASTINGS CHILDREN’S AID SOCIETY
applicant
- and –
E.I.
respondent
REASONS FOR JUDGMENT
BELCH J.
Released: August 30, 2005