2017 ONSC 6813
KINGSTON COURT FILE NO.: 533/10
DATE: 20171114
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:
Family and Children’s Services of Frontenac, Lennox and Addington
L. David Toupin, for the Applicant
Applicant
- and -
J.D. Respondent
Stephen Zap, for the Respondent J.D.
and M.K. Respondent
In default and not appearing
HEARD: September 5, 6, 7, 8, 11 and 12, 2017
TROUSDALE J.
REASONS FOR JUDGMENT
[1] M.C.D-K., born […], 2010 and C.S-M.D-K., born […], 2012 (”the children”) are the biological children of J.D. (“the mother”) and M.K. (“the father”).
[2] This is the second Status Review Application by Family and Children’s Services of Frontenac, Lennox and Addington (“the Society”). The Society requests a Final Order:
(1) that the children, M.C.D-K., born […], 2010 and C.S-M.D-K., born […], 2012, (“the children”) each continue to be found a child in need of protection pursuant to Sections 37(2)(b)(ii) and s. 37(2)(g) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as am. (“the Act”);
(2) that the children be made Crown Wards for the purpose of adoption;
(3) that the mother have access to the children at least once per month with the frequency, duration, supervision, location, and other terms of access to be at the discretion of the Society;
(4) that the father have no access to the children; and
(5) that there be no order as to costs.
[3] The mother consents to a Final Order that the children each continue to be found to be a child in need of protection, that the father should have no access to the children, and that there be no order as to costs. In addition, the mother seeks a Final Order that the children be returned to her subject to supervision of the Society for 12 months under terms and conditions.
[4] The father was noted in default on December 8, 2016. The father did not appear at the trial nor did anyone on his behalf.
[5] Identification Findings of the two children were made on November 13, 2015. However, on September 5, 2017 the Identification Findings of the children were amended by me on consent of the mother and of the Society to include their middle names. On September 11, 2017, the Identification Findings of the children with respect to the religious faith of the children were amended by me on consent of the mother and of the Society.
POSITIONS OF THE PARTIES
[6] The Society’s position is that the protection concerns when the children came into care in October, 2015 were:
(a) the parents’ long-standing use of illicit drugs and opiates not prescribed for them, which prevented them from providing adequate care for the children;
(b) the domestic violence between the mother and the father;
(c) the parents’ failure to recognize and obtain appropriate treatment for the speech delays of the older child and to maintain the immunizations of both children up to date.
[7] It is the Society’s position that the mother has a long standing addiction to drugs and that she has been unable to maintain any sustained abstinence from the use of illicit and unprescribed drugs during the almost two years that the children have been in care. The Society remains concerned that the mother may continue to have some contact with the father.
[8] The Society’s plan is that if the children were made Crown Wards, the Society would look to place the two children together in an adoptive home. The Society is looking at the home of the father’s brother and his wife who reside in Cornwall as a possible adoptive home for the children. The Society is supportive of the mother continuing to have access to the children but seeks that the father have no access.
[9] The mother’s plan is to have the two children returned to her care subject to the supervision of the Society. She would attempt to obtain a larger (3 bedroom) apartment in the same area where she is now. The children would attend the local school where there is a literacy program and where an Early Childhood Educator would also be available to help the older child. There would be no access by the father to the children and the mother would call the police if the father attempted to make contact with the children. The mother would continue her involvement with the methadone program and with Métis Nation Ontario.
Background
[10] The mother is 38 years old. She has one older son born of a prior relationship. That child is now age 15 and resides with his father. The mother has access to that child at the home of that child’s paternal grandmother.
[11] The mother was born in Saskatchewan and was apprehended by child protection authorities at birth. She has Indigenous heritage but was placed or adopted by a non-Indigenous family at about age 3 after several years of foster care. The mother has been attempting to find out to what Indigenous band she belongs and as to whether she has Native status, but she has been unable to trace whether she has Native status nor to find any formal proof that she was legally adopted. The mother’s evidence is that she suffered trauma in her adoptive home, as well as one incident of sexual abuse by a friend of the family when she was quite young.
[12] The two children who are the subject of this trial are a female child M.C.D-K., born […], 2010 (now age 7), and a male child, C.S-M.D-K., born […], 2012 (now age 5).
[13] The father of those two children is M.K. He is 43 years old. The father has an older male child who is now approximately 12 years old and who resides with the father’s brother and wife in Cornwall, Ontario.
[14] The Society’s first involvement with this family began in October, 2009 due to concerns regarding domestic violence.
[15] On February 3, 2011 a court order was made granting a six month supervision order and placing the child M.C.D-K. with the mother on terms and conditions.
[16] On September 1, 2011, a court order was made granting a further six month supervision order and placing the child M.C.D-K. with the mother on terms and conditions. After the mother and the father separated, the Society terminated its involvement.
[17] The Society was involved with this family again due to a reported concern regarding domestic violence by the father towards the mother and the children from January, 2014 to March, 2014, but the Society then terminated its involvement.
[18] From April, 2014 to December, 2014, the Society was again involved because of concerns of domestic violence. The mother was charged and the children remained with the father. The mother was released on terms which prohibited contact with the father. The charge against the mother was subsequently withdrawn.
[19] The Society became involved with the family again on August 6, 2015 due to concerns regarding domestic violence, positive drug screens of the father and of the mother, lack of follow-through with the methadone programs by the mother and the father, and lack of follow-through regarding the children’s needs, and especially regarding the child M.C.D-K.’s speech delay.
[20] On October 2, 2015, the two children came into the Society’s care by way of a temporary care agreement signed by both the mother and the father.
[21] On November 12, 2015, the father terminated the temporary care agreement as he was upset that the child C.S-M.D-K. was admitted to hospital with breathing difficulties while in the care of the Society. As a result of the termination of the temporary care agreement by the father, the Society commenced this Application as the Society’s position was that the parents had not made sufficient progress in addressing the child protection concerns.
[22] On November 13, 2015, a temporary order was made placing the two children in the care of the Society with access at the discretion of the Society.
[23] On January 21, 2016, a Final Order was made on consent finding the two children to be in need of protection pursuant to s. 37(2)(b)(ii) and s. 37(2)(g) of the Act and making the two children Wards of the Society for a period of four months with access at the discretion of the Society.
[24] On May 26, 2016, on the motion and Status Review Application, a Final Order was made noting the mother and the father both in default, finding that the two children continued to be children in need of protection, and making the children Wards of the Society for a period of six months with access at the discretion of the Society. In addition, a parenting capacity and psychological assessment of the children and the mother and the father was ordered pursuant to s. 54 of the Act.
[25] The Society brought this second Status Review Application returnable on November 10, 2016. On December 8, 2016, the father was noted in default and he has not participated any further in these court proceedings. The father was not present at the trial of this matter before me.
Issues
(1) Should the children be returned to the mother subject to the supervision of the Society under terms and conditions, or should the children be made Crown Wards for the purpose of adoption?
(2) In either case, should the father have any access to the children?
(3) If an order is made that the children be made Crown Wards, should the mother have access to the children?
(4) If an Order is made that the children be made Crown Wards, subject to access by the mother, what should the terms of access be?
ANALYSIS
The mother’s opiate dependency and use of illicit drugs
[26] The evidence of the Society’s worker, W.B. and from the drug screens of the mother received from her methadone program is that the mother has tested positive for 11 different drugs since the children came into care in October, 2015 including morphine, cocaine, fentanyl, benzodiazepines, and amphetamines. From November, 2015 to July, 2017 which are the last drug screens in evidence, the mother tested positive on 27 different dates and had borderline results on 18 different dates for a total of 45 dates where the mother had either positive or borderline results.
[27] The mother’s physician at the methadone program, Dr. Bonham-Carter who has been treating the mother since 2012, wrote a letter dated July 27, 2017 regarding the mother’s progress on the opiate substitution program (methadone program) and he testified at the trial. Dr. Bonham-Carter’s evidence was that the mother has an opiate dependency which is defined as a chronic medical disease. He stated that it is a matter of controlling the opiate dependency, not curing it. He testified that the mother is committed to maintaining sobriety. He states that the mother has had significantly improved control of her disease in the last year. This is assessed by self-report, stable behavior and urine drug screening over the last year.
[28] Dr. Bonham-Carter cautioned that placing too much store on examining individual urine samples over a prolonged period can lead to inappropriate conclusions with respect to the overall arc of someone’s recovery progress. He acknowledged that the mother has had periodic positive urine drug screens. He stated that the most significant series of positive samples in the last year would be a period in late May/early June, 2017 where she did relapse to use opiates for 1 to 2 weeks. The mother testified positive for morphine from May 29, 2017 to June 12, 2017. Dr. Bonham-Carter could not recall what caused that specific relapse.
[29] Dr. Bonham-Carter also cautioned that there can be some false positives as there is a lot of mixing of different drugs going on these days in illicit drugs. He testified that certain medications do contain fentanyl. It is also possible to show a false positive if one is in the vicinity of someone using crack cocaine or if you touch a surface that has fentanyl on it.
[30] Dr. Bonham-Carter stated that the reasons for the mother’s significantly improved control of her disease in the last year are her improved resolve to do better, the removal of people from her life who have been significant triggers, improved mental health, good compliance and behavior on the opiate substitution program, support from the Society as well as other services, and the mother becoming more involved in activities with local Aboriginal services. He went on to state that these interventions together are working and need to remain in place to help support and monitor her ongoing health and recovery. He stated that less intervention and treatment will result in a worse outcome.
[31] Dr. Bonham-Carter testified that he believes that although the mother may not report a relapse to him immediately, she has been pretty honest with him and that she doesn’t make excuses for her relapses. He testified that stressors are triggers to relapse. He stated that he would be concerned if the mother was in contact with the father. It is his personal opinion that the father has been a stressor for the mother. He went on to say that it’s a back and forth thing and that each is a trigger for the other. Dr. Bonham-Carter testified that the mother struggled to maintain her ongoing recovery process with the father in the picture.
[32] Dr. Bonham-Carter acknowledged that there’s a lot more to parenting than whether you’re using drugs or not. He stated that it is not his place to make a judgment on the ability of the mother to be an adequate parent to her children. He can simply comment on her recovery. Over the years he has known the mother, it has had its fluctuations and has not been easy for the mother. However, the last year has been the most consistent and positive.
[33] The mother testified that she started using marijuana when she was 15 and that she used a lot of illicit drugs during her teen years. The mother gave evidence that in 2013 she was using crack cocaine and opiates. Then she started on a methadone plan and has been attending the methadone clinic for four years now. She attends the methadone clinic twice per week and gives a urine sample for urinalysis at each attendance.
[34] The mother stated that she had had a relapse in December, 2016 by smoking crystal meth on one occasion when her biological mother passed away. The mother also admitted that she had a relapse in April, 2017 when she said she smoked crystal meth on one occasion. She testified that she did not plan on using on those occasions, but that it happens when she runs in to someone who uses, or when drugs are brought to her. The mother stated that those are the only two relapses she has had.
[35] However, the mother subsequently contradicted this when she testified that the last date she used illicit drugs was back in June, 2017 when she bumped into somebody downtown. At first she said she may have tested positive because of a Tylenol she borrowed from a friend, but then she put forward the possibility that the marijuana she smoked with a friend at that time may have been laced, unknown to her, with other illicit drugs.
[36] On cross-examination at trial, the mother admitted that in October, 2016, she used fentanyl which was brought to her by the father. She also admitted that in December, 2016 she had purchased crystal meth from a dealer and that she purchased illicit drugs from a dealer in January, 2017. Other instances of drug relapse were meeting people she knew who offered her drugs. She stated she doesn’t talk to these people any more if she runs into them now.
[37] The mother never told the Society worker about her relapse in May/June 2017 and her positive urine screens for opiates, and she did not tell any of her Métis Nation Ontario workers about her relapse in May/June 2017 until August, 2017.
[38] Unfortunately, for reasons that were not made entirely clear, the methadone clinic stopped sending the results of the mother’s twice-weekly urine samples to the Society for the period from August, 2016 until July 26, 2017. Although the Society worker W.B. gave evidence that she tried on several occasions to obtain those results, she was unable to do so as she had been told that the results could not be released without the consent of Dr. Bonham-Carter and that he had not got to it. Accordingly the Society did not receive the results of the mother’s urine screens until July 26, 2017 after a Society Manager, A.D. called the methadone clinic regarding obtaining the results. As a result, the Society was unaware of a number of the mother’s relapses or instances of drug use for almost a year after July, 2016.
[39] C.G-D. who is the paternal grandmother of the mother’s oldest son and a counsellor for 32 years at a woman’s shelter testified on behalf of the mother that the mother has a substance abuse problem but C.G-D. believes that the mother has an opportunist addiction. C.G-D. stated that in her opinion the mother has never displayed drug-seeking behavior. C.G-D. acknowledges that it would concern her if the mother sought drugs from dealers but it would depend on what the mother was seeking as C.G-D. sees a big difference between cocaine and pot. C.G-D. would also want to know if the mother sought drugs when she had the children with her. C.G-D. believed that the mother has been honest with her and that the mother did tell her about a relapse which C.G-D. believed was an isolated incident of the mother being in the wrong place at the wrong time. C.G-D. stated she thought the relapse occurred when someone needed a place to stay one or two months prior to the trial and stayed with the mother.
[40] C.G-D. testified that overall she has no concerns with the children being returned to the mother but C.G-D. believes it needs to be a gradual return with supports in place as the children have been away from the mother’s home for a long time and it is going to be difficult.
[41] On the evidence before me I find that the mother’s use of illicit drugs and non-prescribed opiates is a serious protection concern which has detrimentally affected her ability to care for the children in the past and that she has been unable to maintain a sustained period of abstinence from these substances since the children have been in the care of the Society.
Whether there is ongoing contact between the mother and the father and the risk of domestic violence
[42] The mother testified that the father was physically and emotionally abusive toward her during their relationship. She stated that she now recognizes the volatility with the father.
[43] L.C., a friend of the mother who has known her for about 30 years, testified that the father is not a nice man. She had seen the father yelling at the mother and grabbing the mother by the throat in the hallway of the mother’s building and that she (the friend) called the police. The friend further testified that last year the father threatened harm to the mother. The friend said that she told the mother on more than one occasion not to let the father into the mother’s apartment and that the mother usually followed it, but the father is very pushy and pushes his way in.
[44] The paternal grandmother (C.G-D.) of the mother’s oldest son sometimes supervises some Sunday visits by the mother with the children at C.G-D.’s home. She testified that the father was a problem when the mother’s oldest son was in the custody of the mother as the oldest son had a handprint on his face. The police and the Society were called. The father said it was an accident and said it had something to do with the shower curtain, which the paternal grandmother never believed. The paternal grandmother testified that the relationship between the mother and the father was very volatile.
[45] A Kingston investigating police officer gave evidence at the trial. On […], 2017, the father was alleged to have stolen a cell phone off a desk in a public building. The investigating police officer contacted the mother who told the police that the father did not live there but that she spoke to him on occasion. The police asked the mother to pass on the message to the father to contact the investigating police officer.
[46] On […], 2017, early in the morning, the investigating police officer and another officer attended at the mother’s apartment and knocked on the door. They asked if the father was there. The mother stated that she had passed on the investigating officer’s message but she denied that the father was present in her apartment. The officers requested to come into the apartment. The father then immediately came to the door and handed over the cell phone to the police. The phone was in a plastic bag with a note with the investigating officer’s name on it. The father had left a voice mail message on the investigating officer’s phone at 6:50 a.m. that day stating that he was going to drop off the phone at the station that same day. The father was arrested at the mother’s apartment at 7:25 a.m. that morning.
[47] The mother’s evidence is that the father came to her apartment building early in the morning on […], 2017 and threw stones at her window as her buzzer is not working. She said he wanted to deliver a Birthday present for the elder child whose Birthday was the day before. The mother did let him into her apartment but the police then arrived. She admitted that she did tell the police that he was not there as she says that when the knock came on the door, the father told her that if it was the police looking for him, she should say he was not there. She acknowledged that before the police arrived, the father asked to make a phone call on her cell phone but she does not know whom he called. She denied that it was the call to the investigating officer at 6:50 a.m. and said that the father was not there that long. She testified that the father had not spent the night at her apartment.
[48] The mother testified that she has never called and asked the father to come over. She stated that she made a mistake on […], 2017 in letting the father into her apartment when he came to drop off a Birthday present for the older child.
[49] The mother did not tell her Society worker W.B. nor the Métis Nation Ontario workers who were working with her about this incident. She did tell the Society Manager, A.D. about this incident in July, 2017 but she told A.D. that the father came to use her cell phone and that the police arrested the father outside her apartment. The Manager, A.D. does not recall any discussion about the father coming over to deliver a Birthday present for the elder child.
[50] The mother did mention about the father coming to her apartment and immediately being arrested to the paternal grandmother of her eldest son, but this witness, C.G-D. testified that the mother never told her that she actually let the father into her apartment and that the police arrested him inside her apartment. It was C.G-D.’s understanding from the mother that the father was arrested outside the mother’s apartment and that he had not been inside the mother’s apartment on that occasion.
[51] C.M.G., a program coordinator from Métis Nation Ontario (“MNO”) working with the mother gave evidence that the mother told her in May, 2017 that someone had reported that they had seen the father at the mother’s apartment but the mother told C.M.G. that she had refuted that.
[52] S.A., an employee of MNO testified that the mother told the workers at MNO that the father came to the mother’s apartment to deliver a Birthday gift for their daughter, but he was arrested outside her apartment before he could drop off the gift.
[53] In the spring of 2017, the children were reporting to their teachers about seeing the father, but the Society was not able to verify that.
[54] Again, in July, 2017 when unsupervised visits began at the mother’s apartment, the children were telling the foster mother about seeing the father at visits with their mother but the Society was unable to verify that. When the Society manager, A.D. spoke to the mother about the reports the father was around the children during her visits with the children, the mother told her that it may be a fantasy or wish of the children but that the father was not around during her access visits with the children.
[55] In August, 2017, the mother told C.M.G. of MNO that she and the father had accidentally bumped into each other at a community helping agency on August 11, 2017 and that while they walked down the street together they were likely seen walking together by the foster mother who had driven by them C.M.G. suggested to the mother that she should report this chance meeting to her Society worker, but the mother never did so. C.M.G. did report the chance meeting to the Society worker.
[56] The mother herself gave evidence at trial that in October, 2016 she used fentanyl which the father brought to her apartment on that occasion.
[57] Dr. Bonham-Carter testified that he would be very concerned if the mother were having contact with the father. He testified that the father had struggled with his recovery from illicit drug use and that his journey with recovery was quite up and down. Dr. Bonham-Carter recalled that when the father would relapse, the father would hit pretty hard. The father’s choice of drug was a type of benzodiazepine. Dr. Bonham-Carter is no longer treating the father.
[58] I find on the evidence that the father has been physically and emotionally abusive to the mother in the past. Over the years, the police have been called on a number of occasions. I am not able on the evidence to find that the mother and the father are back together. The children have reported to their teachers and the foster mother that they have seen the father during visits with the mother outside the Society, but the Society was unable to independently verify that. I find, however, that the mother and the father did at minimum have contact in October, 2016, on […], 2017 and on August 11, 2017, and that the mother was less than forthcoming and forthright about the circumstances of those contacts both to the Society and her MNO workers, and to her friends.
[59] On the evidence before me I find that the mother does have difficulty in disengaging herself from the father. She states at trial that she is prepared to call the police if she has the children in her care and the father comes to her apartment. On the evidence before me I don’t find this statement to be credible given the history of their relationship. The mother allowed the father to come into her apartment on […], 2017 even though she was aware that her relationship with the father is a serious protection concern of the Society. Further, it is of great concern to the Court that the mother was prepared to lie to the police about the father’s presence in her apartment.
NEGLECT OR FAILURE TO PROVIDE FOR THE NEEDS OF THE CHILDREN
[60] A further protection concern regarding the parents at the time the children came into care was the parents’ failure to recognize that the older child had significant speech delays and the parents’ failure to obtain assistance for that child in working on those speech delays. Both children were also behind in their immunizations.
[61] On the evidence I find that the elder child had almost no speech at the time she came into care even though she was over 5 years old. I find that the parents had not taken any steps to obtain assistance for her.
OPTIONS AVAILABLE FOR DISPOSITION
[62] The children have been in the care of the Society continuously since October 2, 2015, which was a period of almost two years by the time the trial was finished on September 12, 2017.
[63] As the younger child is less than 6 years old at this time, I am unable to consider a further period of Society Wardship for him pursuant to Section 70(1) of the Act which only permits the child to stay in the Society’s care for 12 months with the possibility of a further 6 months extension pursuant to Section 70(4) of the Act if it is in the child’s best interest to do so. No one other than the mother has put forward a plan for the care of the child. The only options for disposition for the younger child are an order placing the child in the care of the mother subject to the supervision of the Society as requested by the mother, or an order for Crown Wardship as requested by the Society.
[64] The older child is 7 years old at this time. At the time of writing this decision, the time for the child to be a Society Ward exceeds the twenty four months set out in Section 70(1) of the Act. The only possibility for continuing Society Wardship for this child would be for a period of less than 6 months pursuant to Section 70(4) of the Act if I find that it is in the best interests of this child to do so. No one other than the mother has put forward a plan for the care of the child. If I determine that it is not in the best interests of this child to extend the time for Society Wardship pursuant to Section 70(4) of the Act, the only options for disposition available to me for the older child are an order placing the child in the care of the mother subject to the supervision of the Society as requested by the mother, or an order for Crown Wardship as requested by the Society.
SERVICES PROVIDED BY THE SOCIETY
[65] The Society has been involved with these parents since 2009. The initial concerns related to domestic violence between the parties. In 2011 there were two orders, each placing the elder child (the younger child was not yet born) in the care of the mother subject to supervision of the Society. The Society terminated its September 1, 2011 supervision order after the mother and the father separated. However, continued reports of domestic violence between the mother and the father arose again several times in 2014 which required involvement of the Society but no court order.
[66] I find that the Society attempted to work with the parents regarding the protection concerns from 2009 to 2015 prior to the children being brought into care. The mother’s addiction physician, Dr. Bonham-Carter agreed in his testimony at trial that in October, 2015 prior to the children being brought into care, the parents were struggling to care for the children when they came to the methadone clinic and that the children needed to be out of the parents’ care at that time.
[67] The Society worker, W.B. encouraged the mother to connect with MNO for support and to connect with her Indigenous culture, which the mother did. The mother has received support from the workers at MNO although they are not addiction counsellors. C.M.G. at MNO testified that she suggested the mother attend group counselling at K3C counselling but the mother attended on only one occasion.
[68] Subsequent to the children coming into care, the Society worked with both parents providing supervised access. In the case of the mother, the Society expanded that access into the community at MNO and at the YMCA. Over time, unsupervised access was provided to the mother until the concern arose that the father may be seeing the children during unsupervised visits with the mother as the children would talk to the foster mother about seeing the father. In addition, around the same time, the Society became aware of the mother’s positive drug screens. The Society held joint meetings with the mother and her supporting workers from MNO to discuss ongoing progress and plans. The Society encouraged the mother to continue at the methadone clinic which she did.
[69] The Society provided an Enhanced Support Services Worker, K.C. to work on parenting skills, discipline, potty training for the younger child and routines at visits. The father declined that service and said he didn’t need it. The mother agreed with K.C. to meet with her every two weeks. However, those visit never took place as the mother forgot about the first two visits. The mother then told K.C. she preferred to receive feedback from K.C. during and following visits. K.C. did supervise over 20 visits including check-ins. K.C. found the mother to be receptive to K.C.’s suggestions, although the mother did not always follow through with discipline consequences. In March, 2016, K.C. began providing written feedback to the mother on her strengths and on things to work on, which feedback the mother enjoyed. K.C. also gave the mother resources on discipline and proper snacks.
[70] K.C. and all the Society workers who supervised the mother’s access spoke about how much the mother loves her children, and how excited the children would be to see the mother. The mother always came prepared with snacks and the mother gave her full attention to the children during the visits. The only concerns were the mother’s difficulty in supervising both children at the same time especially when one of the children would run off, and a concern re the mother’s lack of judgment on one occasion in putting a skipping rope around the elder child’s neck for a short time during a visit before moving it to the child’s waist.
[71] I find that the Society offered services to the father but he declined them for the most part. He did not have access visits to the children for a better part of a year. I find that the Society did provide services to the mother to assist her in dealing with the protection concerns, and in working towards the children being returned to the care of the mother. In my view, it was very unfortunate that the Society was not receiving monthly urine screens from the methadone clinic as the fact of the mother’s relapses would have become apparent much earlier and the Society might have been able to offer additional support in that regard.
AVAILABILITY OF KIN OR COMMUNITY PLACEMENT
[72] Neither parent has presented any options for a placement of the children with kin or with members of the community. On the evidence of the Society there is no kin or community placement available for the children. The children have resided in the same foster home for the last two years and are attached to their foster parents, but this home is not available as an adoptive home for the children. The father’s brother and his wife in Cornwall are not interested in a kin placement but are being looked at as prospective adoptive parents.
DISPOSITION
[73] In coming to a decision on disposition, I must consider what is in the best interests of the children.
[74] The mother loves the children and both the children love her. The evidence is that the mother has a very positive relationship with the children. The mother has regularly exercised daytime access with the children and has been able to meet the children’s basic needs when the children are with her for access periods.
[75] The older child is a 7 year old female child who is now in Grade 1. She did not attend Junior Kindergarten. She spent her first year of school in Senior Kindergarten. She was very behind her peers and the decision was made that she should remain a further year in Senior Kindergarten.
[76] The older child’s kindergarten teacher for the two years of Senior Kindergarten testified at the trial. Her evidence was that when the child first started school, the child could not sit, she had almost no words at all, and she was quite aggressive. She did not like other children playing close to her. The teacher stated that the child appeared to be 18 months to 2 years old when she started school, although she was actually over 5 years old.
[77] The child made great progress in her first year of school but was still not at grade level in anything at all. She had learned a lot of words but it was still very difficult to understand her.
[78] From the late spring of 2017 to June, 2017, the child made big progress. However, she remained well behind her peers academically and socially. She could count to 7 by the end of the year but could not count to 10. The elder child really benefitted from one to one work with an adult. This year in Grade 1, she will have some support from a school to community teacher who will come in to assist.
[79] The child had a speech and language assessment in February of 2016 which identified her as having severe impairments in both receptive and expressive language and a severe articulation delay. She was provided with some special resources through the school and she began receiving speech therapy.
[80] There was a more complete psychological assessment completed on the older child in February, 2017. The child’s overall cognitive functioning was found to be below the first percentile or in the Extremely Low range. The child’s adaptive functioning was assessed at the third percentile. She was diagnosed with Intellectual Developmental Disorder.
[81] The younger child is a five year old male child who is now in Senior Kindergarten. The evidence of his Junior Kindergarten teacher was that he was a year behind socially and academically when he started school but that he progressed very well during the year. The teacher did notice some regression after March Break until the end of the school year when the child seemed anxious and very emotional and angry. There is also evidence of some minor behavioural problems such as a little physical aggression with his peers by hitting, kicking, grabbing toys, and name-calling. He is a busy child and needs firm rules, structure, and follow-through with consequences. The teacher was not sure why there was the regression. The teacher testified that at the end of the year the child was about a year behind his peers in handling social situations and articulating himself, but she believes he will catch up.
[82] The evidence is that both children have strong attachments to the mother and that the visits between the mother and the two children have gone very well. However, the mother has had no overnight visits with the children for two years and she has had the status of a visiting parent for the last two years as opposed to being responsible for all of the children’s needs on a daily basis.
[83] Both children have Indigenous heritage through the mother and she has been introducing them to that heritage through attendance at Métis Nation Ontario (“MNO”) and through attending pow-wows at a nearby reserve.
[84] The evidence of the elder child’s teacher is that the older child and the younger child get along very well and seek each other out, although they have the usual sister/brother fights.
[85] The mother testified that she does not believe that the older child is a special needs child. The mother states that the child is just a little delayed in her speech. She stated that she tried to get the child enrolled in Early Expressions when the child was with her.
[86] A Section 54 parenting capacity assessment of both parents was ordered by the court. Dr. Robert Rowe of the Kingston Family Court Clinic (“the Clinic”) conducted the assessment and provided a written report dated August 8, 2017 which was filed with the court. Dr. Rowe also gave oral evidence at the trial.
[87] Although both parents were ordered to be part of the assessment, the Clinic was unable to contact the father to make arrangements for appointments. Accordingly, the Clinic was unable to offer any conclusions or recommendations regarding the father’s ability to care for the two children.
[88] The mother was initially compliant with requests to attend scheduled sessions, but in February 2017, she failed to show for or cancelled four scheduled appointments which led the Clinic to write to the court for direction. Following the letter to the court, the mother made new appointments and carried through with them.
[89] In his evidence, Dr. Rowe stated that the factors of attachment between the mother and children, her skills, and her positive attitude towards the children were not risks in this case. Dr. Rowe found that the mother has been very committed to her visits with the two children. She comes prepared for visits and the children are excited to see her. The mother responds warmly to the children and she is able to comfort and soothe them. The mother is seen to be attentive to her children at visits, although some workers have noted that the mother has struggled to supervise both children, especially when one of the children is experiencing some problems. The mother has knowledge of, and can carry out basic child caregiving skills. She loves the children and does not see them as a burden. The children have a secure bond with the mother.
[90] In his observation of the children with the mother at a visit, Dr. Rowe noted that the children followed the mother’s routine and expectations very well. The children listened to the mother and acted appropriately at all times.
[91] Dr. Rowe stated that obvious risk factors in this case were the mother’s use of illicit substances, choice of partners (domestic violence), stress of coping, and instability of community. He found the mother’s judgment to be really off with respect to the issue of substance abuse, and relationships.
[92] In his report, Dr. Rowe stated that the mother’s use of illicit substances has contributed to poor functioning in multiple domains of the mother’s life for the last ten years. Although the mother has been involved with the methadone program for four years, Dr. Rowe expressed concern in his report that there has been a lack of any sustained period of abstinence from illicit drugs since her children were brought into care in October, 2015. He further stated in his report that the mother was identified as having an active substance abuse disorder that clearly has the potential to negatively impact on decision making and parenting capacity in the future.
[93] Dr. Rowe testified that the mother is more than capable of looking after her children if she is free from any illicit substances. However, if the mother is using illicit drugs, she would not be a capable parent, and particularly as her daughter has special needs and is therefore more vulnerable. The use of illicit substances is the key concern in this case.
[94] Dr. Rowe was concerned that in his discussions with the mother that although she seemed amenable to treatment, she did not seem to have any knowledge of relapse prevention, harm reduction, or any use of cognitive-behavioural therapy, all of which Dr. Rowe would have expected her to have after a number of years of treatment. He found that the mother had little insight into her own substance abuse issues and tended to blame her substance abuse relapses on her partners or other circumstances. Dr. Rowe came to the conclusion that the mother’s substance abuse issues were not being appropriately managed, given the continuing number of relapses and the lack of progress after a considerable period of time. He was also concerned that the mother’s own statements of non-use of illicit drugs did not always reconcile with what the drug screens showed. He worried that the mother was not disclosing all her relapses to her service providers.
[95] Dr. Rowe testified that the mother needs intensive treatment regarding her substance abuse issues and at least 6 months of abstinence from illicit drugs before we would really know what was happening with the mother regarding her substance abuse problem. Although having the children placed in the mother’s care might aid in the mother’s recovery from substance abuse, Dr. Rowe stated that he would not want to experiment like that when the children would be at risk.
[96] Dr. Rowe also testified that if the children were placed in the mother’s care, the risk for the children would increase quite dramatically if the mother and the father were to be together again because of the prior history of domestic violence between them.
[97] At pages 20 to 21 of his report, Dr. Rowe stated:
Legitimate concerns about the ability of J.D. to independently care for the best interests of both of her children were substantiated through the current assessment. There is evidence that high risk/need areas have been present in the past, with at least one key domain persisting in being a risk factor despite two years to address this concern. Information gathered through the current assessment indicates that some risk factors have likely diminished or are currently being effectively managed. Substance abuse remains a key need area that is not being effectively managed due to the seeming inability of current interventions to diminish risk.
Without a sustained period of abstinence from illicit drug use, risk of maltreatment for J.D.’s children will remain a concern if they are placed in her care. Although there is reason for optimism that J.D. can overcome these risks eventually, she has been unable to adequately manage this risk for two years. At this time, it is unlikely that she would be able to adequately address this major risk in the next six months. It is likely to be a long-term process, even if appropriate services are acquired and utilized.
[98] The evidence is that the mother and the father were not in a position to safely parent the children when they came into care and at the dates of the two final orders on January 21, 2016 and on May 26, 2016.
[99] The children will face a move in any event whether they are placed in the care of the mother or made Crown Wards as the foster parents with whom the children have resided for two years are not prospective adoptive parents for the children.
[100] I find that the mother loves the children and that they have a strong bond with her. Nevertheless, in comparing the merits of the mother’s plan with the merits of the Society’s plan, I find that the Society’s plan offers much less risk to the safety of the children than does the mother’s plan because of the mother’s inability to demonstrate any sustained period of abstinence from illicit drugs or opiates since the children came into care.
[101] On the evidence I find that the mother’s use of drugs is often triggered by stress. If the children are returned to the care of the mother, the stresses on her of 24 hour per day care will be far greater than they were during the past two years when she saw the children for a few hours at a time for daytime periods only. I adopt the concerns expressed by Dr. Rowe in his assessment of the mother’s parenting capacity. The mother’s most recent drug relapse was only in May/June, 2017.
[102] I find that the non-disclosure or inaccurate disclosure by the mother to her Society worker, to her Métis Nation Ontario workers, to her methadone physician, and to her friends, about the number and extent of her drug relapses, and her contacts with the father, results in a situation where if the children were placed in the full-time care of the mother with supervision, the Society and others working with the mother are unlikely to be kept advised by her of any drug relapses, or contacts by the father, or other difficulties with the children as on the evidence, that has been the pattern of the mother over the last almost two years This would place the children at serious risk in the event of the mother having relapses in her recovery or the father attempting to or making contact with the mother and the children.
[103] In addition, I find that the mother does not appreciate the extent of the older child’s significant global developmental delays nor what will be required to assist the child given those delays. Although the child has been assessed below the first percentile in her overall cognitive functioning, the mother does not accept that the child has special needs.
[104] If I return the children to the mother, the younger child would have to be placed in the mother’s care immediately, while the placement of the older child could be delayed for a few months. This would not allow a gradual return of the younger child to the mother’s care to ensure that the child and the mother have an opportunity to adjust to that major change. It would also result in the two children being separated for a period of time. I note that the mother’s witness C.G-D. supported a gradual return of the children to the care of the mother which would not be the case for the younger child.
[105] For the reasons set out herein, I find that the risks to the safety of these two young children are too great to return the children to the mother even with the supervision of the Society. This is particularly so when taking into account the special needs of the elder child.
[106] I find that it is not in the best interests of the elder child to delay a permanent decision in this matter by extending the time pursuant to Section 70(4) of the Act. I also find that it is not in the best interests of the children to delay a permanent placement of the children any further. The children have been lingering in the midst of litigation and uncertainty for two years now. It is time that the children have a permanent home and family. I find that it is in the best interests of the children that they be made Crown Wards for the purpose of adoption.
Access
[107] I must now consider whether there should be continuing access by the mother and by the father to the children.
[108] The Society consents to an order that the mother have access to the children as the evidence is that the relationship between the mother and the children is beneficial and meaningful to the child and the access will not impair the children’s future opportunities for adoption. Dr. Rowe of the Family Court Clinic also supports an order that the mother have access to the children as in his opinion any permanent and complete removal of the mother’s access with the children would likely have a significant detrimental impact on the children.
[109] I find on the evidence before me that there is an attachment between the mother and the two children and the relationship is meaningful and beneficial to the children. The mother has consistently exercised access to the children throughout the time they have been in care, and the access has gone well. The children look forward to seeing the mother. I find that there should be an order that the mother have access to the children. This will also allow the children to have continuing involvement with their Indigenous heritage.
[110] The Society’s plan for the children is to look at a possible adoption by the father’s kin in Cornwall, Ontario. The evidence is that the kin gets along well with the mother and would be supportive of a continuing relationship between the children and the mother. If the children cannot be returned to her, the mother is supportive of the children being placed with the Cornwall kin. The children have had some visits with the Cornwall kin over the last year.
[111] The mother seeks that the order maintain the current amount of access which is twice per week for two hours each visit at The Métis Centre and some Sundays at the home of C.G-D. The mother states that she would consider moving to Cornwall if the children were adopted by the Cornwall kin.
[112] The Society seeks that access be in the discretion of the Society as the children would likely be moving to Cornwall and will need time to adjust to a new home, school and community. The Society submits that there is no guarantee that the mother will move to Cornwall and that it would not be in the best interest of the children to be frequently travelling to Kingston for visits when they are trying to adjust to their new circumstances.
[113] I find that at this time it is in the best interests of the children that access by the mother to the children be at the discretion of the Society as the exact placement of the children and any subsequent move by the mother to where the children are placed is unknown at this time. The Society will need the flexibility to determine what frequency and duration of access is in the best interests of the children depending on their location and their adjustment, and the location of the mother. I find that there should however be a minimum of one visit per month between the mother and the children, with the terms of such access including supervision, duration, and location to be at the discretion of the Society.
[114] The father has been noted in default and he did not participate at the hearing. I find on the evidence that the father stopped supervised visits with the children in July, 2016 and did not see the children again until August, 2017 when supervised visits were re-started at the Society on the request of the father. As the father has been a user of illicit drugs and has been on a methadone program for a number of years, the Society requested the father to disclose his urine screens for illicit drugs. As the father refused to do so, the Society required that the father’s access be supervised. The Society’s position is that the father should have no access to the child as the relationship between the father and the children is not meaningful and beneficial to the children and it would impair the opportunities of the children for access.
[115] The mother’s position is that the father should have no access to the children as he has been violent towards the mother in the past and was physically abusive towards the mother’s child from her prior relationship. The father also uses illicit drugs.
[116] On the evidence before me, I find that there has been domestic violence between the mother and the father, which was often fuelled by use of illicit drugs by one or both parties. The mother has had difficulty in separating herself from the father and keeping him out of her life which has at times impacted on her care of the children.
[117] The father did not see the children for a period of almost one year without explanation, nor did he keep in touch with the Society for a period of 10 months except for a couple of phone messages left by him with no contact number. The father has only recently re-started supervised visits to the children. The evidence of the Society at trial is that the Cornwall kin does not get along with the father.
[118] The father has not provided any evidence to the court as to whether his relationship with the children is beneficial or meaningful to either of the children or that access with him would not impair the children’s opportunities for adoption.
[119] On the evidence before me, I find that the father has been a disruptive and negative influence in the children’s lives because of his illicit drug use and his exposure of the children to domestic violence. On the evidence before me, I find that there is no beneficial and meaningful relationship between the father and the children. I also find that if access between the father and the children is ordered, it may impair their opportunities for adoption as the Cornwall kin is not supportive of a relationship between the father and the children.
[120] There shall be an order that the father shall have no access to the children.
ORDER
[121] For the reasons set out herein a Final Order shall issue as follows:
(a) On consent of the Society and the mother, the two children, M.C.D-K., born […], 2010 and C.S-M.D-K., born […], 2012 are found to continue to be children in need of protection pursuant to s. 37(2)(b)(ii) and s. 37(2)(g) of the Child and Family Services Act;
(b) Not on consent, the children shall be made Crown Wards for the purpose of adoption.
(c) Not on consent, the mother, J.D. shall have access to the children a minimum of once per month with the frequency, length, location, level of supervision and other terms of access to be at the discretion of the Society;
(d) On consent of the Society and the mother, the father, M.K. shall have no access to the children; and
(e) On consent, there shall be no order as to costs.
[122] Thank you to Counsel for their assistance in this very difficult matter.
Justice A.C. Trousdale
Released: November 14, 2017
2017 ONSC 6813
KINGSTON COURT FILE NO.: 533/10
DATE: 20171114
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Family and Children’s Services of Frontenac, Lennox and Addington
Applicant
- and -
J.D.
Respondent
and M.K. (In default and not appearing)
Respondent
REASONS FOR JUDGMENT
Justice A.C. Trousdale
Released: November 14, 2017