Endorsement

File No: 308/09

Date: 2014-05-12

Applicant: Children's Aid Society of St. Thomas & Elgin

Respondents: C.R.; D.S.; D.B.

Date of Hearing: May 8, 2014

Decision Released: May 12, 2014

Counsel:

• Elizabeth Wilson for the Applicant
• P. Allen Skuce for C.R.
• D.S. & D.B. - defaulted

Motion to Change Placement

The Applicant's interim motion to change the placement of two children who are presently subject to a supervision order and whose interests are the subject-matter in a third consecutive status review application was argued today.

Legal Test

Section 64(8) of the Child and Family Services Act dictates the test on a motion to change the interim care and control of a child at the status review stage. It provides that "the child shall remain in the care and control of the person having charge of the child until the application is disposed of, unless the court is satisfied that the child's best interests require a change in the child's care and custody". The test is therefore a presumption that a change not occur unless the child's best interests require it: Children's Aid Society of Brant v. L.(J.), 2008 ONCJ 527, 59 R.F.L. (6th) 460.

In applying the test, the court must remind itself that it is an interim order being sought and, like all interim orders, subject to change following a trial. In this context, change should not occur unless the evidence supports that risks attendant to allowing a child to remain in the care of his parent clearly outweigh his overriding short term interest of continuity of care and security of environment.

Parental Capacity and History

The core risk is the mother's inability to consistently parent. Her cognitive limitations have been known since 2006 and the Applicant has at least 8 years (if not more) of history identifying how her limitations have adversely affected her parenting. In the result, the only new piece of information about the mother that is important to this motion is a new P.C.A. delivered in March of 2014.

Over the years, the children have presented with significant developmental delays and behavioural issues. These were diagnosed long before the P.C.A. was ordered. The children have high needs and require constant supervision to be safe in their own home. Their high needs are not a new disclosure.

In the P.C.A., the assessor recommends that both children be removed from the care of their parents. It is this recommendation that essentially bases the Applicant's motion.

Applicant's Submissions

In its submissions, the Applicant asks the court to balance all of the s. 37(3) best interests criteria from the perspective of all of the parties after which, it submits, removal is the only rational option. It asks me to make significant findings of fact based on inferences. On the whole, its submissions are appropriate after a trial, in a summary judgment motion or on an uncontested trial. Today, only the short-term is relevant and I have already identified the short-term interests that should be balanced.

Mother's Submissions and Court's Analysis

The mother's submissions stress issues that need to be addressed at a trial. These are appropriate on a motion of this nature and I will address them now.

Adequacy of Assessment Visits

She stresses that there were not enough visits between the assessor and the parents in their home to support either her findings or recommendations. The assessor had the opportunity to read previous agreed statements of fact filed in support of prior orders. She spoke with a varied number of people who had relationships with the children in various settings, particularly the school and day-care settings.

I don't know how many visits is enough but on a reading of the whole of the assessment, it appears the assessor had a balanced amount of information to adequately assess the children's and parent's circumstances in the home. Further, the mother had a fair opportunity to put her best foot forward during the two home visits and there is no evidence she was somehow prevented from doing so. There is no evidence supporting that what the assessor observed was inconsistent with the norm. Given what I have read, it is apparent that if more visits occurred, the assessor's recommendations would merely become clearer.

Recent Parenting Accomplishments

The mother submits she needs to cross-examine the assessor on missed evidence of recent parenting accomplishments. She submits this evidence is outlined at Tab 7. I have read the reports at Tab 7 and I have some difficulty recognizing the accomplishments she speaks of. In the headings "Outcome of Interventions" and "Child Development", there is persistent reference to "further support" needed or that the worker "has not observed" the mother using tools taught. Most critically, the author of the last report noted the "limited window of teachable time available" due to both parents becoming so easily overwhelmed with what is being taught.

Historical Information

The mother submits she needs to cross-examine the assessor on inaccurate historical information she might have considered in reaching her recommendations. The allegation complained of relates to historic alcohol and substance use. I agree the assessor mentioned this area when outlining the Applicant's "concerns" but I find no evidence that this concern factored in any way in the findings, conclusions and recommendations of the assessor.

Least Intrusive Measures

The mother's last submission is that an assessor undertaking an s. 54 assessment is "required" to recognize "least intrusive measures" in her recommendations. I have read both s. 54 of the Act and Ontario Regulation 25/07 and can find no support for this submission. "Less Disruptive Alternatives" is a consideration the court shall consider before making an order under s. 57 of the Act. I find no support that the same consideration should be considered by an assessor.

Court's Assessment of Mother's Submissions

On the mother's submissions, I am not satisfied any of the issues she raised would, after a trial, possibly result in a rejection of or adjustment to any of the assessor's recommendations. The assessor's findings and conclusions appear to be supported in fact and, most importantly, are supported to some extent by a P.C.A. delivered in 2006.

Balancing Test: Continuity of Care vs. Risk

The question then is whether the Applicant has satisfied me on a balance of probabilities that the children's right to continuity of care and security of environment pending trial is clearly outweighed by the risks attendant on leaving the children in their present environment.

Parental Capacity Assessment

The mother's capacity was assessed and her scores were consistent with the 2006 assessment. Her intellectual functioning is quite low and she will always require parenting instructions modeled with her limitations in mind.

The most notable issues are her elevated "Positive Impression Scales" attached to her Personality Assessment Inventory and Treatment Rejection Scale. She is in utter denial of any physical, emotional or educational shortcoming which means she will deny or minimize identified needs, she will not cooperate with the Applicant's programs, she is suspicious of the intent of the programs and she cannot accept responsibility for the need for programs.

The assessor finds, and I do not see an avenue to lessen the impact of her finding, that the mother's inability to learn to date is as much a psychological factor as an educational factor. An educational limitation can be managed whereas the psychological factor cannot. In many respects, the psychological limitation will significantly detract from the explanations for her positions the mother believes are so important. Her explanations may very well merit little weight in the face of the psychological finding.

Parental Relationship and Support

Another disturbing finding is the apparent weaknesses in the mother's relationship with her partner, D.S's father, and on top of that, their inability to agree at all on basic parenting issues. The children's relationship with her partner is likewise weak. This finding significantly diminishes the suitability of the parental home to manage two needy children.

Children's Behavior in the Home

The most disturbing finding is the observations of the assessor and Applicant of the children's conduct in the home. They are out of control, aggressive with and harming of each other, aggressive with and damaging to the home and its contents and, neither will listen to either parent when they do attempt some level of control or discipline. The children create the chaos which adversely affects their emotional well-being and behaviours and neither parent is in a position to do anything about it.

The mother will undoubtedly want to explain some of what has been observed in this area but again her explanations may carry little weight because, even if they are accepted, she will have explained the chaos from her perspective but the chaos will remain a reality nevertheless.

Environmental Needs of the Children

The assessor finds that as a result of their behavioural and global developmental delays, both children need to be in an environment where there is positive cognitive stimulation, calmness, predictability and clear routines. This finding cannot be challenged since stimulation, calmness, predictability and routine are the home structures that have been stressed and taught by the Applicant and others over the years and are supported by the social sciences.

The evidence tendered clearly shows that the parents have not been able to achieve any level of structural change in their home in order to create the environment the children so desperately require. The assessment clearly shows the parents are not capable of maintaining the structural change demanded even if it were to magically appear. On top of the change demanded to address the behavioural issues, lack of structure will deter any help at home in addressing the global developmental delays that are being addressed by other agencies.

Conclusion

When all of the evidence is considered, I cannot find that the children enjoy even a minimal level of stability in their home. I also find the security each has in their present environment is more likely as not based on negative rather than positive attachments to their parents. In the result, their short-term need for stability and security of environment clearly supports moving them in that the risks arising from deficient parenting will continue to their detriment.

For the reasons above, I grant the Applicant's motion.

The application is adjourned to May 22, 2014 to fix a schedule to an expedited trial.

Justice M.P. O'Dea