ONTARIO

SUPERIOR COURT OF JUSTICE

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

BETWEEN:

LENNOX AND ADDINGTON FAMILY AND CHILDREN’S SERVICES

DAVID TOUPIN, for the Applicant

Applicant

• and -

N.C.

Respondent

• and -

W.D.

Respondent

JANE E. THURBER, Counsel for the
Respondent N.C.

Not present (in default)

HEARD: April 15, 2013

RELEASED: April 24, 2013

REASONS FOR DECISION

Trousdale, J

[1] The Family and Children’s Services of Frontenac, Lennox and Addington (“the Society”) seeks summary judgment pursuant to Rule 16 of the Family Law Rules [O.Reg. 493/07, s.1]. The Society seeks an Order that the female child D.E.C., born […], 2011 be found to be a child in need of protection and that the child be made a Crown Ward.

[2] In support of its motion, the Society relies on all of its affidavits filed in the Child Protection Continuing Record and its Factum.

[3] The mother, N.C. seeks a dismissal of the Society’s motion and argues that this matter needs to go to trial as scheduled for May, 2013.

[4] The mother relies on her Answer and Plan of Care dated September 29, 2011, her Affidavit sworn October 13, 2011, and her Factum.

[5] The father, W.D. was noted in default on September 21, 2012. He did not attend the hearing of this motion.

ISSUE

[6] The issue before me is whether the Society has shown that there is no genuine issue requiring a trial in order to make a finding that the child is a child in need of protection and that it is in the child’s best interest that she be made a Crown Ward.

BACKGROUND

[7] The female child, D.E.C. (“the child”) was born […], 2011. Her mother is N.C. (“the mother”) who is 37 years old. Her father is W.D. (“the father”) who is 41 years old.

[8] The mother had a previous child, N.M-A.C, (“previous child”) born […], 1999.

[9] On September 25, 2006, Justice Brennan ordered that the previous child be found to be a child in need of protection and he made the previous child a Crown Ward without access.

[10] On March 25, 2008, the mother’s request for leave to bring a status review proceeding regarding the previous child was denied.

[11] The Society became involved with the mother again after April 6, 2011 when the Society received a report that the mother was pregnant. The mother told the Society the child was expected in September, 2011.

[12] On July 4, 2011, the Society was advised by the Belleville General Hospital that the mother’s urine screen had shown positive results for cannabis and opiates. The mother denied using drugs during her pregnancy. She told the Society she had been in a relationship with the father of her expected child for 11 months but that she did not intend to continue the relationship.

[13] On August 9, 2011, the Society was advised that the mother’s hair strand test tested positive for codeine but negative for all other drugs.

[14] On August 10, 2011, over a dozen syringes, needles, a needle filter, a spoon with crusted white powder on it, a candle and capsules marked “hydromorph contin” were found in the mother’s room at Interval House, a shelter for abused women. The mother denied they belonged to her and stated they belonged to the father.

[15] The mother’s urine screen drug tests on July 22, 2011, August 2, 2011, and August 9, 2011 were all positive for cannabinoids and opiates, and two tests were positive for Acetaminophen. The mother admitted to the Kingston General Hospital social worker that she had been using morphine throughout her pregnancy and Tylenol with codeine more recently.

[16] The mother’s family doctor told the Society that he had not prescribed morphine for the mother and none of the medications he had prescribed for her should result in a positive result for opiates or cannabis in a drug screen.

[17] On August 17, 2011, the mother admitted to the Society that she had been using morphine since before she became pregnant and that she continued to use it throughout her pregnancy approximately every second day.

[18] Later in August, 2011 the mother was started on methadone alternative treatment which was expected to reduce withdrawal symptoms for the child at birth.

[19] The mother told the Society she intended to bring the child after birth to her parents’ home. However, the Society worker observed that there was no room for a crib there and the child would be sleeping in a storage room containing a large number of items.

[20] On[…], 2011 after the child was born, the Society apprehended the child.

[21] On September 14, 2011, the Court ordered on a without prejudice basis, that the child be placed in the interim care of the Society with access at the discretion of the Society and in accordance with the recommendations of the mother’s doctor as it relates to the mother feeding the child.

[22] The child’s meconium tested positive for morphine, codeine and Hydromorphine, to which the child was exposed during the last two trimesters of gestation.

[23] The mother continued to breast feed the child even after the child’s apprehension by expressing breast milk to be sent to the child’s foster home.

[24] The mother has had visits with the child approximately three times per week since the apprehension of the child.

[25] The mother engaged in addiction treatment through the Street Health Centre methadone clinic after her release from hospital. She progressed well, her regular urine tests were negative and she was by April 4, 2012 permitted three weekly carry doses of methadone.

[26] The mother tested positive for opiates on a number of tests from June 29, 2012 to October, 2012. On September 25, 2012, the mother lost her carry privilege at Street Health.

[27] On October 29, 2012, the Society placed the child in a Resource foster home where the child has resided for over five months.

POSITIONS OF THE PARTIES

[28] The Society’s position is that the child is in need of protection due to the risk of physical and emotional harm, and the risk of sexual abuse. The Society seeks that the child be made a Crown Ward for the purposes of adoption. The Society’s concerns are the mother’s addiction to opiates, the mother’s mental health issues, the mother’s pattern of unstable housing, the mother’s choice of partners resulting in unhealthy relationships, and the mother’s lack of insight into the Society’s protection concerns. The Society states that although the mother made efforts after the birth of the child to deal with the protection concerns of the Society, the mother subsequently relapsed and the original protection concerns continue.

[29] The mother’s position is that the mother has made every effort to work with the Society toward the return of the child to her care. The mother states that she has a comprehensive plan of care for the return of her child that addresses the protection concerns alleged by the Society. She points to her faithful attendance at the methadone program, and her attendance at addictions counselling. She seeks the dismissal of the Society’s motion for summary judgment so that she can present her case at trial that the child be returned to her care, or alternatively that the child be returned to her care with supervision of the Society.

ANALYSIS

[30] Rules 16(1) and 16(2) of the Family Law Rules allow a party to bring a motion for summary judgment, including in a child protection case, for a final order without a trial on all or any part of any claim made or any defence presented in the case.

[31] Pursuant to Rule 16(4), the party making the motion shall serve an affidavit or other evidence setting out the specific facts showing that there is no genuine issue requiring a trial.

[32] Pursuant to Rule 16(4.1), the party responding to the motion for summary judgment may not rest on mere allegations or denials, but shall set out in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

[33] The mother in this case filed a factum on her behalf which set out her version of the facts. However, I find that the factum is not evidence. The mother did not respond to the motion for summary judgment with an affidavit or other evidence on her own behalf. Her last affidavit filed in this matter was her affidavit sworn October 13, 2011. Accordingly, the mother has not denied the facts put forward by the Society as having happened after that date.

Past Parenting

[34] Section 50 of the Child and Family Services Act, R.S.O. 1990, c.C.11, as am. provides that the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding.

Accordingly, I may consider the past conduct of the mother toward her previous child.

[35] The mother had a previous child. The father was a man other than the father of the child in this case. The previous child was a female child born on […], 1999. The Society became involved with the mother on August 30, 2004 due to concerns of lack of supervision of the previous child, exposure of the previous child to adult conflict, and poor condition of the home. The previous child who was then five years of age had been found by a member of the community walking alone beside a highway without any knowledge of her mother’s whereabouts.

[36] The previous child was apprehended by the Society on February 3, 2005 due to additional protection concerns regarding sexual harm to the previous child by the mother’s then partner (not the biological father of the child) and his son, the mother’s drug use, her lack of parenting capacity, her unstable lifestyle, and her inability to meet the previous child’s needs because of the mother’s own mental health issues and the previous child’s behaviour issues.

[37] The previous child exhibited sexualized behaviour and made reports to five different individuals of being sexually abused by male caregivers while in the mother’s care. None of these male caregivers was ever charged criminally. The mother accused the previous child of lying about being sexually molested.

[38] A trial was heard on May 23, 2006 regarding the previous child by Justice Brennan. At the opening of trial, the parties advised Justice Brennan that it was agreed that the previous child was in need of protection. The only matter for trial was disposition. After trial, Justice Brennan gave a written decision and ordered that the previous child be made a Crown Ward without access to the mother. In coming to that decision, Justice Brennan relied on the assessment of Dr. Robert D. Seim, Ph.D, C. Psych., of the Department of Psychology of the University of Waterloo who conducted an assessment of the mother and the previous child and provided a report dated May 11, 2006.

[39] At Page 5 of that report, Dr. Seim stated regarding the previous child:

In summary, the developmental history reveals that the child N. has been parented in turbulent circumstances from birth with serious risk factors present during her developmental years from birth to 6 years of age. She has been exposed to domestic violence, multiple fathering figures, questionable supervision, mental health issues of mother, unstable housing, and hygienic environmental concerns. Of serious concern are the issues of possible sexual abuse, her deteriorating behavioural patterns including sexual behaviour, fearful state, and cruelty to animals.

[40] At page 8 of the report, Dr. Seim concluded:

There is no doubt that mother has a strong bond to her daughter. This relationship is important to mother and her distress over losing her child focusses more upon the need she has for her child rather than her child’s need for her. From documentation, and interview, there is no evidence that mother understands the needs of her child. Nor does mother seem to understand the contribution of her parenting role and failure to adequately protect her child from witnessing mother’s spousal abuse, addiction, and emotional states.

[41] Justice Brennan states in his decision at page 8:

In his trial testimony, Dr. Seim acknowledged that N. [the mother] had recently improved her participation in the counselling available to her, and that she reports that she no longer uses prohibited drugs. Her depression seems now to be controlled by medication. But he maintained his strong view that N.’s [the previous child] attachment to her mother is unhealthy, and prevents

her forming the necessary healthy attachment she needs. He maintained that although N. [the mother] loves her, the relationship does more harm than good.

My instinctive reluctance to deprive this mother of access to her child must give way to that forceful evidence of the child’s best interests.

[42] I find that the mother’s past parenting of her previous child is relevant in this matter, particularly when the Society alleges that many of the past protection concerns regarding the mother persist to the present time.

Current Protection Concerns

a) Addiction to opiates

[43] I find on the evidence before me that the mother used morphine during her pregnancy. The test result of the child’s meconium after birth was positive for morphine, codeine and hydromorphine, to which the child was exposed during the last two trimesters of gestation. The mother admitted in her affidavit sworn October 13, 2011 that she used morphine during her pregnancy and she stated that she recognized the risk and harm that this presented to the child. I find that the mother placed her addiction needs ahead of the best interests of the child during the mother’s pregnancy.

[44] After the birth of the child, for the most part, the mother seems to have been having negative drug tests and was attending the methadone clinic at Street Health Centre. She appeared to be progressing well and eventually by April, 2012 she had progressed to the point where she was allowed three weekly carry doses of methadone.

[45] However, in or about May or June, 2012, the mother’s progress in dealing with her addiction to opiates regressed. She stopped drug counselling in or about May, 2012. Her behaviour, on occasion, suggested she had returned to illicit drug use, Her drug tests began testing positive for opiates. She began missing required doctor’s appointments at Street Health Centre.

[46] On November 21, 2012, Street Health Centre advised the Society worker that as a result of the mother’s poor attendance, Street Health Centre was involuntarily removing the mother from methadone treatment by reducing her dosage weekly.

[47] In January 2013, the mother told the Society worker she had attended the methadone clinic in Napanee which subsequently proved to be untrue.

[48] The mother tested positive for opiates (not methadone) on several dates in February and March, 2013. She did start attending the ACT methadone clinic in March, 2013. The doctor there wanted to switch the mother to suboxone as the mother seemed to have a reaction to methadone, but told the Society worker it would not be possible to do so until the mother had a clean urine screen showing only methadone.

[49] On the evidence before me, I find that although the mother made great efforts in the first six or seven months after the birth of the child to try to get her addiction to opiates under control, she relapsed in or about the end of May or beginning of June, 2012 and that this continued into at least March, 2013.

b) Mental health, counselling and other services

[50] The mother had been involved in counselling through Interval House, a woman’s shelter, and also with the Public Health Unit, but she stopped both of those counselling programs by December, 2011. The mother has had counselling at Lennox and Addington Addiction and Community Mental Health Services (LAACMHS) with two counsellors. The mother did not inform one of the counsellors about her addiction issues or her mental health issues. One counsellor was involved with the mother for a considerable period of time after the birth of the child but the mother stopped meeting this counsellor in November, 2012. In January, 2013, this counsellor told the Society that LAACMHS had closed its file with the mother due to her recent inconsistent attendance since November, 2012.

[51] The Society provided a supported access service to the mother both individually and in group for education, skill acquisition and coaching to achieve identified goals regarding parenting. The Society provided exercises to the mother to be returned as homework. The mother did not return any of the exercises. The mother was difficult to engage in the supported access service since November, 2012.

[52] In January, 2013 the mother expressed interest in attending a parenting program to begin January 31, 2013, but she did not follow through with attending the program.

[53] Since August, 2012, the mother cancelled a number of appointments and access visits due to problems with her physical health according to the mother. The Society worker warned the mother that she needed to follow up with her doctor as her physical health could become a protection concern because she had few support persons who could assist her in looking after a young child if she were ill. On January 21, 2013, the mother told the worker she was prescribed medication for anxiety, depression and sleep problems, and an antidepressant by her doctor.

[54] I find that although the mother was willing to engage in services recommended by the Society for a period of time after the birth of the child, this willingness to engage in services and her ability to follow through in her commitment to engaging in services decreased substantially in the latter part of 2012 and then ended completely for a period of time. I find that the mother misrepresented to the Society workers the reasons for the services terminating and refused to accept that she was responsible for the services ending to due to her non-attendance at these services.

c) Housing

[55] The mother resided at Interval House, a woman’s shelter, after the birth of the child in September, 2011 until about November 1, 2011 when she moved in with her parents. In June, 2012, the mother obtained her own accommodation. In or about November, 2012, the mother began having the father in her home and on February 21, 2013, the mother confirmed to the Society worker that she and the father were cohabiting in the mother’s accommodation.

[56] The mother did not allow the Society to see her apartment until December 13, 2012. The apartment is a small one bedroom apartment which does not have room for a crib in the bedroom. On several visits to the mother’s apartment since December 13, 2012, the Society worker has been concerned about neglected housekeeping, including dirty dishes and pots and pans in the kitchen, bags and boxes and storage containers piled halfway up the wall of the dining room, and clutter accumulating. There are five cats living in the home.

[57] I find that the pattern of the mother having unhygienic accommodation which existed when the previous child was in her care, persists at the present time.

d) Unhealthy relationships

[58] The mother told the Society worker prior to the birth of the child that she had no intention of resuming her relationship with the father after the birth of the child. She continued this stance until February, 2013.

[59] After the birth of the child, the mother deposed in her affidavit sworn October 13, 2011 that she had no intention of resuming a relationship with the father and that she would advise the Society if the father attempted to contact her. However, the mother did not inform the Society that she had recommenced her relationship with the father until February 21, 2013, even though the evidence is that the father was at least visiting and dating the mother for two or three months prior to that time. The father confirmed the relationship to the Society worker on January 23, 2013 and told the worker on January 31, 2013 that he was moving into the mother’s home. The mother continued to deny the relationship. It was not until the mother and father were confronted with their conflicting statements that the mother admitted that she and the father are now residing together.

[60] The Society’s concerns about the father include:

(a) The mother had previously told the Society that the father is an intravenous drug user, although the father denies he has used morphine. The father admits he uses marijuana and says he used to smoke a lot of it until November, 2012 when he says he quit on his own. However, he admitted to the worker that he has used marijuana since that time.

(b) The father has only supervised access with his three children because of domestic violence and substance abuse, and has had previous involvement with the Hastings Children’s Aid Society (now known as Highland Shores Children’s Aid Society) between 1999 and 2009 regarding those three children.

(c) The father had substance abuse issues when he resided with the mother of his aforesaid three children, including extensive alcohol use.

(d) The mother told the Society worker that the father came to her apartment twice in June, 2012 in an intoxicated state.

(e) The father has had anger management issues and has been convicted in the past of uttering death threats.

(f) When the Society recommended that the father attend counselling, the father initially said he had arranged an intake appointment on February 26, 2013 with LAACMHS. However, he did not follow through and subsequently told the worker he was not prepared to engage in services until he had a better idea of whether the child would be returned to the mother’s care.

[61] The mother has not explained to the Society worker or to the Court what facts caused her to change her mind about residing with the father again when she had previously denied any intention to resume a relationship with him.

[62] The father has not been involved with visiting with the child. The father left a message for the Society worker on July 13, 2011 indicating that he did not have the resources to care for the child and that he thought the best plan for the child would be Crown Wardship.

[63] I note that the mother has previously allowed her relationship with a male partner to take precedence over the best interests of her previous child. I find that there is a risk to the child in this case that the mother’s relationship with the father may interfere with the mother’s ability to put this child’s interests ahead of her own.

Supervised access by the mother

[64] After the birth of the child, the mother had supervised access for three visits per week of one hour each which gradually increased to supervised access in the community. To her credit, the mother continued to express breast milk for the child to be sent to the foster home. However, on October 16, 2012, the Society temporarily suspended community visits due to the mother allowing unapproved contact with the father to the child during a community visit on September 20, 2012. The mother denied that the father had been present at the visit, but the father admitted later that he had briefly met the mother and the child at the visit but he did not stay long as he did not want to cause trouble for the mother with the Society.

[65] From July 3, 2012, to December 21, 2012, the mother missed 27% of her scheduled visits. From January 4, 2013 to March 1, 2013, the mother missed 30% of her scheduled visits. On a number of occasions the mother had difficulty in focussing on the child during the visits, but rather focussed on her frustration with Society involvement or complaints about the foster parent’s care of the child, most of which complaints were found to be unsubstantiated.

[66] I find that the mother’s commitment to the visits to the child has dropped off since she became re-involved in the use of opiates. I find that the mother has also shown that she is prepared to be untruthful with the Society about important issues.

Parenting capacity assessment

[67] On February 12, 2012, a parenting capacity assessment was ordered on consent of the parties. The assessment was carried out by psychologist Dr. Patrick M. Lynch, Ph.D. between April, 2012 and May, 2012. Dr. Lynch’s report is dated May 22, 2012.

[68] In his assessment, Dr. Lynch noted the following:

(a) The mother is a well-intentioned person who has limitations in intellectual understanding. She has difficulties with depression and anxiety which are handled adequately by medication. Her functioning level as an adult is marginal, and she has difficulty meeting her own needs, as shown in her difficulties with employment, relationships, substance abuse and the law.

(b) The mother has difficulty in realistically perceiving her own limitations, both for intellectual and emotional development reasons. Consequently, it seems less likely she would be able to deal with the complexities of maintaining herself, and at the same time handle the demands of raising a child as a single parent.

(c) The mother’s history of substance abuse, and her emotional problems requiring medication and probably counselling, would undoubtedly detract from the capacity, energy and emotional will to deal with life’s problems and challenges.

(d) If the mother were involved in a relationship, she seems to have lesser capacity to handle even normal relationship stresses and would be completely overwhelmed by the stress of a dysfunctional relationship. This would diminish her already marginal capacity to meet the child’s needs. The mother has a tendency to get involved in unhealthy relationships.

(e) The mother appears to be capable of looking after a young child’s basic physical care, at least when not under any particular pressure except that of CAS supervision. However, the history and Dr. Lynch’s assessment did not give much reason for optimism that she would be able to handle emotional or behavioural difficulties.

(f) The mother did not understand how problematic her care of the previous child had been, and this would suggest an increased likelihood of problems with the child in this matter.

(g) The mother tended to think short term, and had very selective memory and/or reporting when it came to unpleasant aspects of life.

(h) Dr. Lynch commented that when people have had substantial addiction problems, the likelihood of relapse is ever-present. Dr. Lynch found that although the mother was involved with a mental health and addictions counsellor, she did not show evidence of a deeper understanding and commitment to relapse prevention. The mother has not shown the kind of resolution and clear-thinking that would give confidence that the mother could resist temptation and avoid relapse pitfalls in the future.

[69] Dr. Lynch ‘s recommendation on May 22, 2013 was as follows:

It has to be acknowledged that no one can predict the future, and N. [the mother] has made some efforts to make changes and to be a better parent. The question is, is there sufficient reason for confidence that the child will receive adequate parenting, to place the child with N., given her long-standing history of limitations and problems. It is reluctantly concluded that the balance of probabilities does not favour placing the child with N., so that I am unable to recommend in that direction.

[70] I note that Dr. Lynch’s recommendations were made at a time when the mother was undergoing counselling with mental health and addictions counselling, was on a methadone program and according to Dr. Lynch was “producing clean drug screens successfully, while under intense scrutiny.” The mother was also at the time, not in a relationship with the father whom she had indicated was an intravenous drug user.

[71] Unfortunately, Dr. Lynch’s concern regarding the possibility of the mother’s addiction relapse was validated shortly after the assessment. In addition, the mother has resumed cohabitation with the father which was an unhealthy relationship in the past. I find that the mother continues to show a lack of understanding of the protection concerns of the Society.

[72] Rule 16(6) of the Family Law Rules provides that if there is no genuine issue for trial of a claim or defence, the court shall make a final order accordingly.

[73] On all of the evidence before me, almost all of which is uncontradicted as the mother has filed no affidavit evidence since October 13, 2011, I find that there is no genuine issue for trial as to whether the child is in need of protection. Although the mother loves the child and wants to provide a loving home for the child, I find that the evidence is very clear that the child is at risk of physical and/or emotional harm, in the care of the mother and may be at risk of sexual molestation if she were in the care of the mother. Accordingly, the Society’s motion for summary judgment that the child be found to be in need of protection pursuant to subclause 37(2)(b)(ii) and clauses 37(2)(d) and 37(2)(g) of the Act is granted.

Issue of Disposition

[74] The next issue to consider is whether there is a genuine issue for trial with respect to disposition of this matter.

[75] The child has been in the temporary care and custody of the Society for 19 months. As the child was under the age of one year when she was apprehended at birth, the only options available to the Court for disposition pursuant to Section 70 of the Act are an order placing the child with the mother with supervision of the Society, or an order for Crown Wardship.

[76] I find on the evidence before me I find that the Society, and Street Health Centre, and the LAACMHS have made efforts to assist the mother in being in a position to parent the child. I find that the Society attempted to work with the father to obtain counselling regarding his issues, but that the father refused to accept the assistance offered.

[77] On the evidence before me, and on the prior parenting history of the mother with her previous child, and for the reasons previously given in this decision, I find that the child cannot be adequately protected from the risks of physical harm, mental harm or the risk of sexual molestation if she were placed in the care of the mother, even with an order for supervision by the Society.

[78] As required by the subsection 57(4) of the Act, I have considered whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family. I find that the Society has investigated that possibility and that there is no suitable kin or community placement available.

[79] I find that there is no genuine issue for trial with respect to the disposition of this matter. I find that it is very clear on the evidence before me that the only option available to adequately protect the child is Crown Wardship.

[80] I find that the child has been in a resource foster home since October, 2012. The foster parents are willing to provide a permanent placement for the child through adoption if an order for Crown Wardship is made.

Access

[81] The mother loves the child and she has been able to engage with and physically care for the child during visits. However, I find that there is no evidence that an order for access would be beneficial and meaningful for the child. I find that an order for access would impair the child’s future opportunities for adoption. The child is an infant and it is in her best interests that she have a permanent stable placement as soon as possible. I find that there is no issue for trial in this regard. I find that it is in the best interests of the child that there shall be no order for access.

ORDER

[82] A Final Order shall issue as follows:

(1) The Society’s motion for summary judgment is granted.

(2) The child, D.E.C. born […], 2011 is found to be a child in need of protection pursuant to subclauses 37(2)(b)(ii), and clauses 37(2)(d) and 37(2)(g) of the Child and Family Services Act.

(3) The child, D.E.C. shall be made a Crown Ward for the purposes of adoption with no access.

(4) The trial dates set for this matter for the weeks of May 6, 2013 and May 13, 2013 are hereby vacated.

[83] Order to go accordingly.

Justice A.C. Trousdale

Released: April 24, 2013