ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NOS.: FC-08-3079-3 and FC-08-3079-4
DATE: 2012/05/01

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF D.T.M. (d.o.b. […], 2009) and D.I.M. (d.o.b. […], 2010)

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant

– and –

Ms. G. and Mr. M.
Respondents

Marguerite Lewis, for the Applicant

Kristen Robins, for the Respondent mother At outset of trial

HEARD: April 10, 2012 Ottawa)

REASONS FOR DECISION

BEAUDOIN j.

[ 1 ] At this trial, the Children’s Aid Society of Ottawa (the “Society “) seeks Crown wardship for the purposes of adoption of two children, namely, D.T.M. (d.o.b. […], 2009) and D.I.M. (d.o.b. […], 2010). The father (“Mr. M.”) has been noted in default. Although the mother (“Ms. G.”) has filed an answer and plan of care and attended the first of two trial management conferences, she did not attend for the trial. Her name was paged before the start of proceedings and again at 11:00 a.m. I heard from her counsel, Kristen Robins and of her efforts to contact her client in preparation for this trial. I am satisfied that Ms. G. was aware of the trial date and of the necessity for her attendance. She failed to keep any appointments with her counsel, she did not respond to her phone calls or to a letter that was couriered from her office. Given her inability to receive any instructions from her client, I allowed Ms. Robins to be removed as solicitor of record subject to the filing of the agreed statement of facts that had been prepared with Ms. Robins’ approval. I then proceeded to hear evidence in support of the Society’s application in the absence of the Respondent mother.

[ 2 ] The Statement of Agreed Facts is as follows:

1. The mother, [Ms. G.] and the father, [Mr. M.], have three (3) sons: [M.G.] (DOB […], 2008), [D.T.M.] (DOB […], 2009) and [D.I.M.] (DOB: […], 2010). All were born in Ottawa. [D.I.M.] has no religion and does not have Native status.

[M.G. (“M”)]

2. [M.] was born on […], 2008. He was apprehended on December 5, 2008 while he and [Ms. G.] were still in the hospital. The Society brought a Protection Application seeking Society Wardship.

3. [M.] was placed in the temporary care of [Ms. G.]’s aunt [Ms. E.] on September 10, 2009, with [Ms. G.]’s consent. On December 23, 2009, [M.] was found to be a child in need of protection and a Final Order was granted, with [Ms. G.]’s consent, placing [M.] in the care of [Ms. E.] for six (6) months subject to the supervision of the Society.

4. The Society brought a Status Review Application on June 10, 2010 seeking that [M.] remain in the care of [Ms. E.] pursuant to a final Order of custody. On November 30, 2010, a Final Order was granted, with [Ms. G.]’s consent, placing [M.] in the custody of [Ms. E.] pursuant to section 57.1 of the CFSA with access to [Ms. G.]’s a minimum of three (3) times per week for a minimum of three (3) hours per visit, with additional access as agreed upon between [Ms. G.] and [Ms. E.]

[D.T.M.]

5. [D.T.M.] was born on […], 2009. He remained in [Ms. G.]’s care following his birth. The Children’s Aid Society of Ottawa did not bring a Protection Application with respect to [D.T.M.] following his birth.

6. [D.T.M.] was apprehended from [Ms. G.]’s care on February 10, 2010. The Society brought a Protection Application at that time seeking a period of Society Warship. [D.T.M.] has remained in the care of the Society since, for 26 months.

7. On November 12, 2010, D.T.M. was found to be a child in need of protection and was made a ward of the Children’s Aid Society of Ottawa for a period of six (6) months, with [Ms. G.]’s consent. [Ms. G.]’s access was ordered to be a minimum of three (3) times per week.

8. The intention when the above Order was granted was for D.T.M. to be placed in the care of his maternal aunt, [Ms. E.] (with his brother, [M.]) as soon as she was able to obtain a larger unit from Ottawa Housing. [Ms. E.] had already been recommended by the Society’s kinship department as an appropriate caregiver for [D.T.M.]

9. On February 9, 2011, [Ms. E.] withdrew her plan to care for [D.T.M.]. She advised the Society that she would canvass alternative kin plans within [Ms. G.’s] community.

10. On March 4, 2011, a meeting was held with [Ms. H.], who was prepared to put forward a plan to care for [D.T.M.]. [Ms. G.] was not in agreement with this plan.

11. On April 14, 2011, the Society brought a Status Review Application seeking a six (6) month supervision order to [Ms. H.]

12. On May 10, 2011, the kinship assessment results were received and indicated that the plan being put forth by [Ms. H.] was not recommended by the Society’s kinship department.

13. On July 29, 2011, the Society amended their Status Review Application to seek Crown Wardship for the purpose of adoption.

14. [Ms. G.] proposed her aunt, [Ms. L.] as a kinship placement for [D.T.M.] and [D.I.M.]. It was clarified with [Ms. G.] that the Society was going to assess [Ms. L.]’s suitability to adopt the children (as opposed to assessing her ability to provide temporary care to them). [Ms. G.] agreed to the assessment. On December 10, 2011 the adoption assessment results were received and indicated that the plan being put forth by [Ms. L.] was not recommended by the Society’s adoption department.

15. A number of other individuals from [Ms. G.]’s community contacted the Society to express an interest in putting forward a plan of care for [Ms. G.]’s children. The Society was advised that [Ms. G.] wanted [Ms. B.] to be assessed. Ms. Tyrrell attended a meeting on February 15, 2012 with [Ms. B.]. At the meeting, [Ms. B.] told Ms. Tyrrell that she would not be in a position to care for the children without substantial financial assistance from the Society. When she was advised that the Society would not provide financial assistance if she were to adopt the children, [Ms. B.] withdrew her plan.

16. [Ms. G.] has not had any contact with [D.T.M.] since April 2011.

[D.I.M.]

17. [D.I.M.] was born on […], 2010. He remained in [Ms. G.]’s care following his birth. The Children’s Aid Society of Ottawa did not bring a Protection Application with respect to [D.I.M.] immediately following his birth, but the Society did continue to work with [Ms. G.] on a voluntary basis.

18. [D.I.M.] was apprehended from [Ms. G.]’s care on September 14, 2011 and was placed in the same foster home as [D.T.M.]. The Society brought an Application for six (6) months Society Wardship. On September 19, 2011, the Honourable Justice Sheffield granted an interim care and custody order to the Children’s Aid Society on a without prejudice basis. [D.I.M.] has remained in the care of the Society since.

19. Following [D.I.M.]’s apprehension, [Ms. G.]’s access was scheduled to occur three (3) times per week at the Children’s Aid Society: Mondays and Wednesdays from 9:00 am to 10:30 am, and Thursdays from 8:30 am to 10:00 am.

20. [Ms. G.] was required to telephone the Children’s Aid Society before 7:30 am on the date of each scheduled visit to confirm her attendance that day. [D.I.M.] had to be driven to the visits from Barrhaven.

21. On January 23, 2012, the Children’s Aid Society of Ottawa amended their Protection Application to seek Crown Wardship for the purpose of adoption.

Additional Information

22. Both [D.T.M.] and [D.I.M.] attended for intake medical appointments when they came into the Society’s care. No medical concerns were noted for [D.T.M.] and he was noted to be well on track developmentally. [D.I.M.] had a rash on his hip which was diagnosed as impetigo.

[ 3 ] In summary, there were two separation applications commenced: one with respect to D.T.M. and a second with respect to D.I.M. These matters come before me by way of an amended Status Review Application and by way of an amended protection application.

D.T.M.

[ 4 ] I am reminded by Ms. Lewis on behalf of the Society of the importance of s. 70(1)(a) of the Child and Family Services Act (“ C.F.S.A. ”) that places a limit on the time period that a child may remain a ward of the Society and that this is not to exceed 12 months if a child is less than 6 years of age on the day the court makes an order for Society wardship. D.T.M. has now been in the care of the Society for 26 months. More significantly, the evidence is clear that his mother has not exercised any access to him since April 14, 2011; nearly one year ago. D.T.M. has already been found to be a child in need of protection. At this stage of his very young life, his mother has been absent for approximately 12 months. As noted by the Society, there are really only two possible options with respect to D.T.M., namely, to make him a Crown ward for the purposes of adoption or to return him home to his mother who has not seen him for nearly a year and who has not been able to present herself at trial today or to keep any contact with her counsel. With respect to D.T.M., the only order that can be made that is in his best interests is to make him a Crown ward for the purposes of adoption. That conclusion is supported by the agreed statement of facts as set out above and is further supplemented by the evidence of the Society’s witnesses. Whereas that evidence primarily focuses on D.I.M., the evidence of Michelle Tyrrell, the child protection worker assigned to this case, has supplemented the record of concerns with respect to D.T.M.

[ 5 ] Michelle Tyrrell is a child protection worker since 2001 and the files involving both D.T.M. and D.I.M. were transferred to her in February 2011. At that time, D.T.M. was already a Society ward and D.I.M. was still in the care of his mother. She observed that Ms. G.’s care of D.I.M. appeared to be appropriate. From her review of the file, she understood that the Respondent mother had a number of anger management issues. Ms. G. certainly did not appear to be pleased about having a new worker assigned to the case. At that time Ms. G. was living in a shelter as she had lost her housing after D.T.M. had been removed from her care. The early reports that Ms. Tyrrell received with respect to D.I.M. were positive. She was aware that Ms. G. had two other children. In addition to D.T.M., there was an older boy by the name of M.G. (“M.”) who is now residing with an aunt. From her review of the file, she had determined that the mother had difficulty managing two young boys. At the time of her assumption of the file in February 2011, D.T.M. had been in foster care for a year since he was 2 months old.

[ 6 ] The mother resided in a shelter from February 2011 to May 2011 and initially Ms. Tyrrell enjoyed a lot of contact. She certainly saw Ms. G. frequently during the month of March. In April she was only able to meet with her and D.I.M. on one occasion. In May, she was unable to reach the Respondent mother. She learned through others that Ms. G. had obtained housing but Ms. G. had failed to advise her. Ms. Tyrell was able to get her address from Social Services and she tried to reach the mother at home and left messages and her calls were not returned. The mother was being very difficult to reach. She reported that the public health nurse had the same problems as she did and ultimately the public health office closed its file in June 2011.

[ 7 ] Ms. Tyrrell finally did meet Ms. G. face‑to‑face when she went to her aunt’s house, Ms. L. Although she had new housing, the mother advised she was not living in the new place. Although D.I.M. was seven months old, Ms. Tyrrell noted that the arrangements at Ms. G.’s aunt’s house seemed to be less than satisfactory. The mother was sleeping with D.I.M. on a mattress on the floor but advised that she would be moving to her apartment soon. She cancelled an appointment with Ms. Tyrrell that would have permitted an assessment of the apartment. At this point, Ms. Tyrrell concluded that the accommodation at the aunt’s house was not safe.

[ 8 ] At the time of Ms. Tyrrell’s assumption of the file, there had been a kinship plan with respect to D.T.M. That plan had been presented by another of Ms. G.’s aunts, namely, Ms. E. who had obtained custody of M. That aunt withdrew her request to take D.T.M. into her care. At this point, the mother indicated to Ms. Tyrrell that she wanted to present a plan for herself. Since it was noted that she was having difficulty managing D.T.M. and M., it was agreed that access to D.T.M. would have to be at the agency’s offices. Initially, the mother enjoyed access three times per week to D.T.M. but she began missing a lot of dates. She was referred to the Child Access Program but she failed to follow through and her visits were put on hold in April 2011and she has not visited D.T.M. since that time. Subsequent attempts were made by Ms. Tyrrell to recommence access visits but none of these met with success.

[ 9 ] In June 2011, Ms. Tyrrell received a police report with respect to a verbal altercation between Ms. G. with a male. That came from information in the community and that this incident had occurred late at night while D.I.M. had been in her care.

[ 10 ] With respect to the anger management issue, Ms. Tyrrell confirmed that the mother did attend at an anger management course offered by Elizabeth Fry Society. She was aware that in March 2011 there had been a verbal altercation between Ms. G. and another woman but no charges were laid. By August 2011, Ms. Tyrrell described having great difficulty in contacting Ms. G. and on September 14, 2011, D.I.M. was apprehended from his mother’s care.

[ 11 ] Immediately after D.I.M. apprehension, Ms. Tyrrell tried to set up an access schedule of three visits per week. Because of her prior history of failing to maintain access visits with D.T.M., a system was put in place that required the mother to confirm her intention to visit D.I.M. on the morning of each visit since the child had to be transported to the agency’s offices. On the date of the first visit, the mother called but the call was too late and the visit could not take place. The mother did manage to make the next visit and attended on time but then missed five consecutive visits. As a result, Ms. Tyrrell set up a meeting but the mother failed to attend. The mother did ultimately attend a second meeting with counsel.

[ 12 ] Ms. Tyrrell advised that she had received reports of partying in the home, drinking and of consumption of drugs. The mother agreed to do a urine screen but she did not want to be supervised while she underwent the test. Since anger management was still an issue, she agreed to continue with counselling. The Society agreed to reinstate access and this was scheduled to be commenced in October 2011. The mother missed the first three scheduled visits and so access was suspended. The mother reported that she missed the visits because she was “sick” but provided no medical note to substantiate her illness.

[ 13 ] There was a meeting scheduled in November to discuss the renewal of access visits but the mother did not attend. She did attend a second meeting scheduled in November and again the Society agreed to reinstate visits in November. At first, the mother was able to make three visits but then missed three consecutive visits. When she did visit with the child, the mother did not appear to be child‑focused. She did have some difficulty adjusting to the child’s development since he was now walking and she had not seen him for a period of time. Because she had missed three visits, access was once again put on hold. There were no visits in December 2011. In January 2012, the mother indicated she wished to resume access again. Ms. Tyrrell was concerned that the mother was prepared to resume access and to make a commitment. Access was reinstated. Again the mother was required to do check‑in and she did attend for three visits. Then she missed a whole week. In February, access was suspended again and Ms. Tyrrell advised Ms. G. that visits would not be reinstated.

[ 14 ] During this period of time, Ms. E., who had custody and access of M. had indicated that she was not able to look after D.T.M. Another friend, a neighbour of Ms. E. by the name of Ms. H., had offered to put a plan of care forward for D.T.M. and Ms. G. was not in agreement. Ultimately Ms. H. was not approved for a kinship placement due to medical issues. As of June 2011, there was no one else who was willing to come forward. In September 2011, a new kinship plan was proposed by the mother, namely, with respect to another aunt, Ms. L.

[ 15 ] Apparently, when she was a teenager the Respondent mother had been in the care of Ms. L. While Ms. L. seemed like a viable placement after the initial meeting, the comprehensive assessment was prepared for an adoption plan for D.T.M. since he had been 18 months in care. As a result, an adoption assessment was conducted and in September 2011, Ms. L.’s plan was not approved. It was concluded that Ms. L. would not be able to be protective of D.T.M. vis-à-vis Ms. G. In June 2011, Ms. G. identified a third party, a Ms. B., as someone who would be able to provide a plan of care. Ms. B. withdrew her plan almost right away when she found out that she would not receive a monthly allowance if the children were adopted. Ms. B. was a neighbour and no family connection and she had never met the children before.

[ 16 ] Ms. Tyrrell indicated that after D.I.M. came into care, that she had some concerns about Ms. G.’s drug use. As a result, she had hair follicle tests conducted in November 2011of D.I.M.’s hair and it tested positive for crack cocaine. The hair follicles are tested by segments and those tests disclosed that D.I.M. had been exposed to crack cocaine over a nine‑month period. As a result, Ms. Tyrrell concluded that D.I.M. had been exposed to crack cocaine shortly after his birth. When confronted with this, Ms. G. denied using crack cocaine but admitted to marijuana consumption. Ms. Tyrrell also received information in October 2011that Ms. G. was once again pregnant. As a result, she wanted to work as closely as possible with Ms. G. as she was going to have another child. She put an alert out to all the hospitals and she received a phone call most recently from Queensway Carleton Hospital indicating that Ms. G. is indeed pregnant and is expecting her fourth child on July 3, 2012.

[ 17 ] The next witness for the Society was Ginette Towns. She has been a child protection worker since 2008. She is the one who attended on September 14, 2011 for the apprehension. She had received a phone call from the Ottawa Police with respect to possible concerns for D.I.M.’s safety and well‑being. She attended at the residence and spoke to a police officer. The police officers were in the apartment building and they had responded to a phone call and arrested three people for robbery and these people were found in Ms. G.s’ apartment. The police had described the apartment as a “flop house”. When Ms. Towns and her colleague attended, Ms. G. was outside speaking to the police officers and they observed Ms. G. as yelling at the police officers and asking them to leave. She threatened to harm the police if they called the Society.

[ 18 ] Ms. Towns and her colleague were trying to find out where D.I.M. was and Ms. G.’s sole response was that D.I.M. was somewhere in the building. The mother ultimately accompanied them up to her apartment where her friend, Jessica, was attempting to clean the apartment. The apartment was devoid of furniture. There were two TV sets sitting on the ground. The carpet was soiled, stained of urine and dog feces. There were two holes punched in one of the walls and there was a burn mark above the hole. There were random items scattered on the floor, a USB card and foil wrappers. A dog had defecated on the carpet. There were two bedrooms and in the one bedroom there was a mattress on the floor and there was exposed electrical wiring hanging out of the electrical outlet. There was a crib for the baby but there was no crib sheet. Ms. G. said she had one the night before but she could not find it. Ms. Towns noted the mattress was suspended from the wrong rung. Given D.I.M.’s age, it should have been positioned on the lowest rung but it was now positioned at the highest.

[ 19 ] She noted that the kitchen was devoid of any adult food. There was formula and diapers but the dishes in the sink were dirty and the baby bottles were sitting in with all the soiled dishes. Ms. G. was not being very responsive when questioned by Ms. Towns as to her concerns about the hazards and the state of cleanliness. Her answers were such that neither she nor D.I.M. were ever present in that apartment. Ms. Towns said that Ms. G. was very dismissive and not answering her questions. Ultimately, she went and got D.I.M. and she noted that he did appear to be dressed appropriately. Ms. Towns was not introduced to anyone who appeared to be caring for D.I.M. at the time. She noted that when the police first arrived at the scene, D.I.M. had been left in the care of one of the three male suspects that were ultimately arrested. Ms. Towns tried to explain to the mother about the lack of cleanliness, the hazards presented by articles left on the floor and the presence of criminals in the house. She said Ms. G. talked over her although she did admit that the apartment was not an appropriate place for a child. After consulting with her supervisor, Ms. Towns formed the conclusion as a result of the immediate safety concerns that D.I.M. should be taken into care. She advised the Respondent mother who was changing D.I.M’s diaper and at that time Ms. Towns noticed a very significant rash on D.I.M.’s hip area. The mother said she had taken D.I.M. to a clinic and she had been told it was chicken pox.

[ 20 ] She presented Ms. Towns with D.I.M.’s health card and discussed his routine and by this time, Ms. Towns noted that the mother’s behaviour was appropriate and that she had calmed down. Ms. G. wanted D.I.M. placed with one of two aunts. Ms. Towns had no further contact with the mother until she received a phone call from her on March 6, 2012. By this time, Ms. G. had been cut out from Ontario Works and she wanted Ms. Towns to contact Ontario Works on her behalf. She advised Ms. Towns that she needed money because she was pregnant. Since Ms. Towns could not speak to the Ontario Works office without Ms. G.’s consent, she did arrange to have food vouchers left for her at the Society’s offices and advised her of same. The mother never came to retrieve the vouchers.

[ 21 ] On the evidence before me, I am satisfied that the child D.I.M. is a child in need of protection pursuant to s. 37(2)(a)(i) in that the mother has failed to adequately care for or supervise and protect the child from physical harm and further that the child is in need of protection pursuant to s. 37(2)(g) in that there is a risk that the child is likely to suffer emotional harm resulting from the mother’s failure to maintain any meaningful contact with him since the date of his apprehension seven months ago. Her failure to follow through in any meaningful way, to work cooperatively with the Society and her failure to attend this trial clearly demonstrate to me that she is prepared to abandon this child just as she appears to have abandoned both his two older siblings, M. and D.T.M. Having regard to the criteria set out s. 37(3) of the CFSA , I find that this young child’s physical, mental and emotional needs can only be met by making him a Crown ward and placing him for adoption. The mother has failed to maintain any significant or emotional ties to this child just as she has failed to maintain ties with her other children. The only plan that has any merit is the one that is proposed by the Society which would see the possibility of D.I.M. being placed for adoption along with his older brother, D.T.M.

Mr. Justice Robert N. Beaudoin

Released: May 1, 2012

COURT FILE NO.: FC-08-3079-3 and FC-08-3079-4
DATE: 2012/05/01

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF D.T.M. (d.o.b. […], 2009) and D.I.M. (d.o.b. […] , 2010) BETWEEN: THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant - and - Ms. G. and Mr. M. Respondents REASONS FOR decision Beaudoin J.

Released: May 1, 2012