IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: Children’s Aid Society of Cape Breton-Victoria v. L.A.D., 2005 NSSC 364
Date: 20051013
Docket:31735 CFSA
Registry: Sydney
Between:
Children’s Aid Society of Cape Breton-Victoria
Applicant
v.
LAD, JCE and CMS
Respondent
Restriction on publication: s. 94 (1) of the Children and Family ServicesAct
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Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Judge: The Honourable Justice Darryl W. Wilson
Heard: September 15, 2005, October 5, 2005 and October 7, 2005, in Sydney, Nova Scotia
Decision: October 13, 2005
Written Reasons: January 31, 2006
Counsel: Christopher Conohan, for the Agency
David Raniseth, for LAD (mother)
Don MacLennan, for JCE (psychological father)
David Iannetti, for CMS (biological father
By the Court:
[1] The Children’s Aid Society of Cape Breton-Victoria (agency) applied for an order of Permanent Care and Custody, with no provision for access, with respect to the child, SND, born January [...], 2003. The Respondent, LAD (mother) opposed the application and requested an order returning the child to her care.
[2] The Respondent JCE (psychological father) was residing with the mother and providing care to the child at the time the child was apprehended. He is considered a parent or guardian pursuant to s. 36(1)(b) and 3(1)(r)(iv). He opposed the application and requested an order returning the child to his care.
[3] The Respondent CMS (biological father) opposed the application and requested an order returning the child to his care. The biological father who had minimal contact with the child was added as a party by Order dated September 15, 2005. His status and relationship with the child will be discussed later in this decision.
[4] The child was taken into care April 22, 2004 on the allegation there was a substantial risk of physical harm caused by the mother and psychological father’s failure to supervise the child-s. 22(2)(b). The mother does not trust the agency’s interventions because of her past experiences. When she was a youth, the mother was in the care of the agency and resided in several foster and group homes. The mother’s care of her older daughter, DD, born January [...], 2000, was investigated by the agency. Court proceedings were not pursued when the mother and maternal grandmother consented to an order transferring custody of the older child to the grandmother.
[5] The agency received and investigated a number of referrals after the child, SND, was born in January 2003 and offered the mother services which were refused.
[6] The child was apprehended in April 2004 because of unsafe and unhealthy living conditions in April 2004. The apartment in which the child was living was occupied by the mother, psychological father, the mother’s sister and a 17 year old youth and his girlfriend. Only the psychological father and the 17 year old male youth were home at the time the child was taken into care. Despite the mother’s protestations that the home was untidy because they were preparing for a wedding shower, the Court was satisfied and accepted the evidence of the agency that the conditions of the home were unsafe and unhealthy for a young child. There were two dogs and a cat in the apartment. A Rottweiler was caged while a second dog, with a chain around its neck, was wondering the living room eating items off the floor. The apartment had a strong smell of dog feces and cat litter. The child partially clothed was sitting in a high chair watching TV. Her diaper was soiled and appeared unchanged for a long time. There was litter scattered on the floor below the child’s high chair and on a table and counter in the kitchen. The playpen contained uncovered styrofoam. There was no safety rail for the child’s bed. A staircase railing was broke and had been removed from the staircase. There was no baby gate in place at the top of the stairs to protect the child from falling down the stairs. The agency had discussed safety and health concerns in the past with the Respondent and it did not appear she was making any progress in improving the situation.
[7] The Interim Hearing was held May 21, 2004. The court ordered the return of the child to the supervised care and custody of the mother and psychological father pending the Protection Hearing provided the Respondents comply with agency recommendations to make the apartment safe for the child, the Respondents participate in education counselling with a family support worker to deal with issues of parenting and child safety, the mother submit to random drug and alcohol testing, one of the dogs be removed from the home, the Respondents not allow additional persons to reside in the home with the child and the Respondents permit unscheduled visits to the home by agency workers to monitor compliance with conditions that impacted on the child’s safety and well being.
[8] Subsequent to the Interim Hearing, the agency reported a lack of cooperation by the Respondents. Ms. Campbell, Child Protection Worker, set out the agency’s concerns in an affidavit dated July 21, 2004. The Risk Management Conference Minutes attached to the affidavit summarized the agency’s concerns as follows:
Worker Wendy Campbell reviewed the home visits to LAD and JCE’s home. That contrary to the current supervision order which states there are to be one dog in the home, there are now there as a new puppy has been added.
The condition of the residence was discussed with writer saying it has been getting worse upon each visit. That on at least three separate occasions there has been kitty litter on the floor which was explained as the child S. getting into it. This was noted to be a choking hazard.
That when worker arrives to the home in the morning LAD is usually sleeping and that it is usually JCE who is up with S., and that JCE is no longer in the home.
The information in the new referral was discussed which included the incident where the child S. had apparently ingested half of a “nervie” before being discovered, the child have multiple babysitters was discussed which included a brother that LAD accused of sexually assaulting her and who she claimed she didn’t want around her child as well as our questions around S. being in her bedroom with the television on when she was supposedly being put down for a nap was discussed as when she had first been apprehended one of the concerns was that she had been sitting for ours watching cartoons in her highchair for an unspecified amount of time while JCE slept. Workers also discussed the standby report from Barbara Estwick where she reported as well the house was in disarray, noting that Ms. Estwick had reported kitty litter on the bathroom floor as well, and that LAD would not tell worker where S. was at. It was noted that S. was not in the physical care of her mother at at that time, that she was with her grandmother until after court. It was decided that although the situation was not good at this time there was not enough to do an apprehension of the child S.
[9] On July 22, 2004 the Respondents agreed to a protection finding. The child remained in the supervised care and custody of the Respondents subject to the supervision of the agency and the following conditions: the mother cooperate with random drug and alcohol testing, the Respondents provide the agency with a list of babysitters, all pets be removed from the residence, restrictions on who could reside in the home with the child, instruction from a family support worker on child care safety issues and couple counselling if the Respondents reside together.
[10] After the Protection Hearing the agency reported the Respondents continually breached conditions of the court order and did not cooperate in addressing the risk factors identified at previous court hearings and acknowledged by the Respondents in consenting to a protection finding.
[11] A Disposition Hearing was held on October 12, 2004. The parties consented to a Supervision Order which provided that the child remain in the care of the Respondent mother and psychological father subject to the same terms and conditions cited in the previous paragraph.
[12] Although the agency was agreeable to a Supervision Order with terms and conditions, the agency noted at paragraph three in their Plan of Care ongoing problems in relation to the prior Supervision Order. In particular:
The order states that the Applicant is to have unscheduled access to the Respondents’ residence. The Agency has encountered difficulties with this. After being told by LAD that she would not permit Agency worker inside the residence, there were at least three unsuccessful attempts made at contact in the following two week period. As well, police had to be called to the home on one occasion in order to gain access as those inside would not allow entry to the home.
To date, LAD has not provided the Agency with any names of potential babysitters. LAD insists only her brother and mother babysit for the child, S, LAD refuses to provide the names of the girls who take S. out on a daily basis, stating that they are not babysitters because you pay babysitters and those girls are not paid.
The order also states that, if LAD and JCE continue to reside together, they are to attend couples counselling. Although the two remain living together in the same apartment, they deny being a couple and say that the order only says they are to have counselling if they are together as a couple, and that they have not decided yet if they are going to try to work it out or not. As a result, to date, no counselling has taken place between the two, even though there have been reported acts of violence between them.
[13] The Supervision Order was to be reviewed on January 5, 2005. Soon after the Disposition Hearing in October the Respondents began making plans to relocate to either Truro, New Glasgow or Halifax. The mother reported the child had foot and mouth disease and had been burned on her back from a heater. In December the mother reported to the agency that she was not returning to Cape Breton for court and requested the file be transferred to the Halifax area. By early January the Respondent psychological father and mother were still residing in Cape Breton. The January 5th hearing was adjourned to January 26, 2005 for the reception of evidence regarding the Respondents progress and their circumstances.
[14] The agency was concerned that the Respondent mother and psychological father were not prepared to cooperate with the agency in addressing the risk factors which affected the health and safety of their child and were more concerned about their own circumstances than the child’s needs. At a risk conference meeting on January 19, 2005 the agency decided to seek a Permanent Care and Custody Order when the matter returned to court. The minutes of that meeting were attached as Exhibit A to the affidavit of Ms. Campbell dated February 3, 2005 and are as follows:
It was explained that the Agency had taken the child, S. into care because of instability in the home i.e. so many changes in the residence, the condition of the home, (dirt, debris) and the condition of the child, herself. That S. was returned home with a list of conditions for the parents to get services and to make certain changes. There are always some type of hazard in the home, supervision is questionable and there is a lack of any indications of stability. The residences are always in a state of etheer moving in or out, they are always in a state of transition and, although, the issues around supervision have always been addressed with the parents there has been no indication that anything has changed. It was explained that this couple were supposed to engage in counselling but that this never happened. We discussed the various tactics this couple used to avoid doing the required services (they resided together but told the court they wre not together), there was a lack of follow through with anything they were supposed to do and the risk has not gone away. That LAD and JCE have offered many explanations of why things didn’t happen. We discussed the fact that whenever anything was addressed with this couple they always spoke about their own objectives (finding a job, going to school), but that there never seemed to be any consideration that the child comes first and that they should be doing things to make her situation better. We discussed that there is no indication that JCE and LAD will benefit from services being put in because they haven’t in the past. That this couple did complete a parenting program in which such things as safety checklist were incorporated, but that there were no noticeable changes. It was discussed that we are looking for a permanent care of S. as we don’t believe we can expect any reasonable change in a reasonable amount of time.
It is this decision of those present to ask the court to return S. to the permanent care of this Agency.
[15] On January 26th, counsel for the Respondents indicated the Respondents were no longer living together and counsel could not represent either of them. The hearing was rescheduled to February 16th in order to allow the Respondents to engage separate counsel.
[16] On January 27th the agency received information concerning inappropriate parenting by the mother. At a risk management conference meeting on January 27th, the agency decided to re-apprehend the child. The apprehension was returned to court on February 3. A hearing into the agency’s reapprehension was adjourned to February 16th which was the date set for a review of the prior Supervision Order. New counsel appointed for the Respondents were unable to proceed on February 16th and the hearing was further adjourned to April 6th, 2005.
[17] There was confusion as to the nature of the hearing on April 6, 2005. The agency was prepared for a Permanent Care and Custody hearing while the Respondents believed that the only issue being reviewed was the agency’s reapprehension of the child. The court concluded the hearing would only deal with the agency’s application for a Temporary Care and Custody Order pursuant to s. 46(1) of the Act and that the child was to remain in the temporary care and custody of the agency pending a final hearing of the matter. A parental capacity assessment with respect the Respondent mother was also ordered.
[18] The biological father contacted the agency shortly after the child was taken into care for a second time in February 2005. He advised the agency he was the father of the child and requested access. The child protection worker advised him to get legal advise since the agency considered Mr. E. to be the father of the child. Although the biological father acted promptly to engage counsel, he was unable to meet with counsel for several months. His application to be added as a party to the proceeding dated June 16th was scheduled for hearing June 22 - the same date as the scheduled review hearing of the Temporary Care and Custody Order. The agency consented to the biological father being added as a party but the Respondent mother opposed his application and denied that he was the biological father of the child. A paternity test was ordered. The result which was not received until late August confirmed CMS’ paternity. The mother still opposed his application for party status and a hearing was scheduled for September 15.
[19] The Permanent Care and Custody hearing which also had been scheduled for September 15, 2005 was adjourned because the parental capacity assessment was not completed until September 12 which did not allow sufficient time for review prior to hearing.
[20] The biological father’s application for standing was granted on September 15, 2005.
LEGISLATION:
[21] Section 46(4) provides:
4) Before making an order pursuant to subsection (5), the court shall consider
(a) whether the circumstances have changed since the previous disposition order was made;
(b) whether the plan for the childs care that the court applied in its decision is being carried out;
(c) what is the least intrusive alternative that is in the childs best interests; and
(d) whether the requirements of subsection (6) have been met.
Section 46(5) provides:
(5) On the hearing of an application for review, the court may, in the childs best interests,
(a) vary or terminate the disposition order made pursuant to subsection (1) of Section 42, including any term or condition that is part of that order;
(b) order that the disposition order terminate on a specified future date; or
(c) make a further or another order pursuant to subsection (1) of Section 42, subject to the time limits specified in Section 43 for supervision orders and in Section 45 for orders for temporary care and custody.
Section 46(6) provides:
(6) Where the court reviews an order for temporary care and custody, the court may make a further order for temporary care and custody unless the court is satisfied that the circumstances justifying the earlier order for temporary care and custody are unlikely to change within a reasonably foreseeable time not exceeding the remainder of the applicable maximum time period pursuant to subsection (1) of Section 45, so that the child can be returned to the parent or guardian. 1990, c. 5, s. 46.
Section 42(2) provides:
(2) The court shall not make an order removing the child from the care of a parent or guardian unless the court is satisfied that less intrusive alternatives, including services to promote the integrity of the family pursuant to Section 13,
(a) have been attempted and have failed;
(b) have been refused by the parent or guardian; or
(c) would be inadequate to protect the child.
Section 42(3) provides:
(3) Where the court determines that it is necessary to remove the child from the care of a parent or guardian, the court shall, before making an order for temporary or permanent care and custody pursuant to clause (d), (e) or (f) of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the childs community or extended family pursuant to clause (c) of subsection (1), with the consent of the relative or other person.
Section 42 (4) provides:
(4) The court shall not make an order for permanent care and custody pursuant to clause (f) of subsection (1), unless the court is satisfied that the circumstances justifying the order are unlikely to change within a reasonably foreseeable time not exceeding the maximum time limits, based upon the age of the child, set out in subsection (1) of Section 45, so that the child can be returned to the parent or guardian. 1990, c. 5, s. 42.
Section 13(2) provides:
(2) Services to promote the integrity of the family include, but are not limited to, services provided by the agency or provided by others with the assistance of the agency for the following purposes:
(a) improving the family’s financial situation;
(b) improving the family’s housing situation;
(c) improving parenting skills;
(d) improving child‑care and child‑rearing capabilities;
(e) improving homemaking skills;
(f) counselling and assessment;
(g) drug or alcohol treatment and rehabilitation;
(h) child care;
(i) mediation of disputes;
(j) self‑help and empowerment of parents whose children have been, are or may be in need of protective services;
(k) such matters prescribed by the regulations. 1990, c. 5, s. 13
Section 2(1) provides:
2 (1) The purpose of this Act is to protect children from harm, promote the integrity of the family and assure the best interests of children.
Section 3(2) provides:
(2) Where a person is directed pursuant to this Act, except in respect of a proposed adoption, to make an order or determination in the best interests of a child, the person shall consider those of the following circumstances that are relevant:
(a) the importance for the child’s development of a positive relationship with a parent or guardian and a secure place as a member of a family;
(b) the child’s relationships with relatives;
(c) the importance of continuity in the child’s care and the possible effect on the child of the disruption of that continuity;
(d) the bonding that exists between the child and the child’s parent or guardian;
(e) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;
(f) the child’s physical, mental and emotional level of development;
(g) the child’s cultural, racial and linguistic heritage;
(h) the religious faith, if any, in which the child is being raised;
(i) the merits of a plan for the child’s care proposed by an agency, including a proposal that the child be placed for adoption, compared with the merits of the child remaining with or returning to a parent or guardian;
(j) the child’s views and wishes, if they can be reasonably ascertained;
(k) the effect on the child of delay in the disposition of the case;
(l) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent or guardian;
(m) the degree of risk, if any, that justified the finding that the child is in need of protective services;
(n) any other relevant circumstances.
BURDEN OF PROOF:
[22] The burden of proof in a proceeding such as this is clearly on the Agency. It is a civil burden of proof that must have regard to the seriousness of the consequences of the decision (J.L.v. C.A.S. of Halifax, (1985) 44 RFL (2d) 437 (N.S.C.A.) and C.A.S. of Halifax v. Lake, (1981) 45 NSR (2d) 361 (N.S.C.A.).
EVIDENCE:
[23] Testimony was received from Wendy Campbell, a child protection worker, Linda Piercey, access facilitator; the biological father and his mother; the psychological father, the mother, maternal grandmother and the mother’s landlord.
[24] Michael Bryson, clinical psychologist filed his report and testified. His summary and conclusions reported at pages 22 and 23 are as follows:
LAD is the mother of two young girls, S., age 2 years and D., age five. Neither of these children are presently in her care. D. resides with LAD mother, while S. is in temporary foster care.
LAD has a long history of involvement with the Applicant. She was a child in care, during which she reports her behavior was defiant and unmanageable. Part of the difficulty seems to have been her anger at her mother, in addition to resenting when others imposed structure in her life, chronic misuse of alcohol and street drugs, and sexual victimization at a young age. LAD has a chronic history of conflict in relationships. She admits to fears of physical intimacy, and appears to have difficulty with establishing and maintaining emotional intimacies. There is a chronic pattern of being transient regarding many changes in addresses. LAD presents as an angry wrman who is openly defiant and resentful of others, even if they are attempting to assist her. Her anger has often led to violence with others, in particular, her mother and JCE.
The problematic use of psychoactive substances remains. LAD minimizes the seriousness of her Psychoactive Substance Abuse problem. She continues to use street drugs and alcohol despite her awareness that it jeopardizes the likelihood that her children will return to her care.
LAD appears to be torn between her love of her children, her desire that they return to her life, and her ability to manage her own life effectively. Unfortunately, she lacks insight into her problematic lifestyle and its risk to her children. In general she has chronic mental health and life style issues that would likely lead to her children being at serious risk of on-going neglect if they were in her care. S.’s behavior suggests an anxious attached to her mother.
LAD is not the biological father of S. However, it is clear when interviewing him and observing him with S. that he cares for her as if she were his own child. JCE also has psychological issues most notably, his passivity and dependence on others. JCE appears to lack self-confidence. He has a high tolerance for abusive relationships. Much to his credit, he was found to have an appropriate relationship with S. She has a secure attachment to him.
Recommendations:
1. It is recommended that S. remain in the care of the Applicant.
2. It is recommended that LAD have supervised visits with her daughter, S.
3. It is recommended that the supervised visits twice weekly.
4. It is recommended that JCE have unsupervised visits twice a week with S.
5. It is recommended that LAD remain abstinent from alcohol, street drugs and prescription medication that is not prescribed to her for 24 hours prior to each visit and during each visit with S.
6. It is recommended that LAC attend and complete a treatment program for alcohol, prescription medication and street drugs.
7. It is recommended that LAD attend mental health counselling to assist her with her survival of sexual and physical abuse, and to assist her with learning to trust others such that she can have appropriate relationships with them.
8. It is recommended that LAD attend and complete anger management counselling with a psychologist. Her anger appears to be related to childhood trauma and her personality traits.
9. It is recommended that JCE attend mental health counselling to assist him with self-esteem and hygiene.
[25] Since April the mother has been residing at [...]. She maintains a clean and tidy apartment. She is living by herself and taking courses by correspondence to improve her education. She is not involved in a relationship with the psychological father but she is dating another person.
[26] Her plan is to move into her mother’s residence so that both her daughters can develop a relationship. Her mother will provide childcare while she continues her education. Her hope is to operate her own business in two years.
[27] She has taken parenting courses. After reading the Bryson Report she arranged counselling sessions to deal with issues surrounding anger management and her unsettled lifestyle including her frequent moves. These sessions have not started. She used marijuana once during July 2005 but not at her residence. She limits her use of alcohol to once or twice a month.
[28] She acknowledged missing 12-14 visits since June with her daughter due to illness. The Agency told her not to visit if she was ill. She did not always tell the Agency she would not be attending scheduled visits. She disagreed with the Report of the access supervisor that often she did not attend to her child’s needs during visits and the child’s safety was put at risk on occasion during visits. She stated she is securely attached to her daughter who cries when she is leaving. She admits that she is not as playful with the child as the psychological father.
[29] The mother disagreed with the Bryson Assessment. She denies any problem with alcohol/drug use, that she engages in a number of one-night stands, that she is a flight risk and that her relationships are violent. She acknowledged that she is out spoken , she does not always trust people and she does not take persons feelings into account. She was angry as a child and the Agency had her take courses while she was in care. She is angry with the psychological father because he abused her. She was charged with assault in June 2005 when the psychological father had threatened to take the child from her. This charge was either dismissed or withdrawn. She acknowledges the tumultuous relationship with the psychological father. They have not been living together since December of 2004. They continued to see one another from time to time for sexual purposes, and the psychological father provided some child care until the child was reapprehended in January, 2001. They bickered during access visits blaming one another for their situation and this had a negative effect on their access visits with the child. She attempted to get counselling regarding past issues but was informed by a counsellor in North Sydney that he could not help since the Agency was involved.
[30] She admits that before the birth of her older daughter, she was a rebellious person but that has changed and now she is in a position to care for her child and requests the child be returned to her care.
[31] The mother has the support of her mother. The maternal grandmother stated the relationship with her daughter is good at times and poor at times. Each has reported the other’s inappropriate parenting to the Agency. In the past, the grandmother was concerned about her daughter’s misuse of alcohol and inattention to the child’s needs. She is willing to help her daughter if her child is returned to her care. She believes her daughter is capable of providing child care if she is away from stress factors and she is able to settle down. She stated that since her granddaughter has been taken into care a second time the mother is maintaining a clean apartment, not going out to bars like she used to, drinking less, visiting her other daughter regularly, taking parenting courses and generally looking after herself.
[32] The psychological father’s plan is to have the child placed in his care. He would reside with his mother who would assist him in providing care for the child. The psychological father denies that he wants to care for the child so that he can continue a relationship with the mother. He has a positive relationship with the child who calls him “daddy”. He reports that the hygiene concerns outlined in the Bryson Report are a result of a saliva defect he had since age five which causes a bad breath. There is no treatment for this and he will eventually lose his teeth. He can not understand the other hygiene criticisms because he showers daily and uses deodorant. He disagrees with the Assessment that he has a passive personality and he is dependant on others.
[33] He acknowledged a difficult time separating from the mother. There were a number of confrontations and separations since the child was initially taken into care. There were concerns about violence in their relationship. The mother cut him once but it was accidental. He is awaiting trial for assault on the mother for an incident in June 2005. It concerned an argument about their relationship. He wanted a family relationship with the mother initially but when the child was taken into care a second time he stopped wanting a relationship with the mother. He did not put forward a plan to provide care for the child in the past because he did not think the Court would not give him the opportunity to care for the child.
[34] The mother is against the psychological father’s plan of care because she has concerns about the stability of his family. The mother claims his father is an alcoholic and his mother has complained about caring for the child S. in the past. The mother reported that the psychological father continues to contact her and recently attended at her residence in contravention of an Undertaking he gave to stay away from her while awaiting his assault trial.
[35] The recommendations and conclusions of the Bryson Assessment were reported earlier. Mr. Bryson testified that the mother loves her child and wants the child to be returned to her care but she can not manage her life effectively. He concluded that she lacked insight into her problematic lifestyle and the risks to her child of this lifestyle. In his opinion she has chronic mental health and lifestyle issues that would likely lead to her child being at serious risks of ongoing neglect if the child was returned to her care. Mr. Bryson reported that the child has an anxious attachment to the mother. In his opinion the mother is an angry person who is openly defiant and resentful of others. Her anger leads to violence with others. She minimizes the seriousness of her substance abuse problem. He acknowledges that she does not have a substance dependance disorder but rather a substance abuse problem. She was using drugs while care of the child was being supervised by the Agency. In his opinion the mother resists structure in her life and will resist advice from those who try to impose it. She has personal issues such sexual victimization as a youth which has not been appropriately addresses through counselling. There is a chronic history of conflict in relationships, a chronic pattern of transients and it is difficult for her to establish and keep emotional intimacy. In his opinion it is unlikely that her circumstances are likely to change in the reasonably foreseeable future in order for the child to be returned to her care.
[36] The access supervisor reported that initial visits with the child were attended by the mother and the psychological father together. They bickered during these visits and the child was left to play by herself at times. Often the mother complained in front of the child rather than addressing concerns in the absence of the child. The psychological father paid more attention to the child than the mother. Separate visits had to be arranged for the mother and the psychological father because of the bickering and complaining. Since the separate visits in June the mother missed 12 - 14 visits with the child. The psychological father attended more of the visits than the mother although he began to miss visits in September. The access supervisor reported the mother gave the child a small object which could have been put in her mouth, left the child unattended on a slide and did not hold the child’s hand when they were walking on the sidewalk on a busy residential street. In each case the access supervisor brought these safety concerns to the mother’s attention who did not seem to accept the comments or the advice of the facilitator.
[37] Wendy Campbell, Agency worker, stated that throughout the process the mother and the psychological father were unwilling to engage in services to address the risk factors identified at the Protection Hearing. They were resistant to advice and did not cooperate with Agency workers. Since the second apprehension of the child the Agency visited the mother’s apartment once and it was tidy. Most of the contact has been by telephone. The Agency is aware the mother has taken parenting courses but not couple counselling or anger management. The mother missed a number of access visits. The child is eager to see the mother when she visits. Access visits were cancelled because the mother was not informing the Agency when she could not attend. The Agency relies upon the Assessment of Mr. Bryson that the prognosis for treatment for the mother is poor and substantial risk of physical harm to the child as a result of the mother’s neglect still exists today.
[38] The Agency’s plan is to place the child for adoption. They considered placing the child with the grandmother who has custody of an older child but because of the Agency’s current concerns regarding the grandmother’s care of this child they do not think this placement is appropriate.
BIOLOGICAL FATHER:
[39] The biological father lives with his mother in North Sydney. He is looking for work. He has been in receipt of Social Assistance for the past four years. He had a two and half year relationship with the mother after the birth of her older child, D. The mother and D. lived with him at his mother’s residence for about eight months and for a short time in their own an apartment. He is D’s, godfather. According to him, he cared for D. more then the mother when they lived together. The mother moved to Dartmouth after their separation. When he found out that she was pregnant he thought he may be the father. Later, the mother informed him he was S’s father. He did not initiate contact with S. for two years. The maternal grandmother told him that the mother’s new boyfriend did not want him to see the child and that he would cause problems in their relationship if he pursued access.
[40] The biological father maintained a good relationship with the maternal grandmother. The child, D., who now resides with maternal grandmother telephones his place daily to speak to him or his mother and he sees her frequently. He was able to see his child, S. for the first time when she was placed in the care of the maternal grandmother by the Agency in May 2004. When S. was returned to her mother’s care, he was able to see her when the maternal grandmother babysat the child. He never saw S. when she was in the care of the mother and psychological father. The last time he saw S. was in January 2005 when the mother left her with his mother for a visit not knowing he was there.
[41] He acknowledged that he should have sought a relationship with his child sooner. He was nervous and confused. He knew the Agency apprehended S. and that she had been returned to the mother’s care. He hoped that the mother would get her act together and she would be able to provide care for the child. It was only when S. was taken into care for the second time that he decided that he should contact the Agency and inform them that he was the father and he wanted access. Now he wants to care for S. because it is important for his child to know family. He admits that S. does not know him as her father. His plan is to reside with S. in his mother’s residence and eventually his own apartment. His mother and the maternal grandmother would assist him in providing care for the child. He acted promptly to get a lawyer when the Agency told him they could not help him with access. He feels that he is a capable father because he helped care for the mother’s older child, D. He acknowledged that he used marijuana but not when the child was present. He said the mother is an angry person and they often had verbal conflicts during their relationship. He was not aware of any safety issues when they lived together but the mother ignored the child, D.’s needs at times.
[42] The biological father’s mother stated that she has a good relationship with the maternal grandmother and the child, D. When the mother and D. lived at her place, her son did most of the child care such as washing, changing, feeding and playing. The mother slept in most mornings. The biological father’s mother stated she has diabetes and a heart condition but these conditions do not prevent her from providing child care. She is willing to help her son with the care of S.
[43] When the biological father contacted the Agency in February 2005 about access to his daughter, he informed them that if necessary he would apply for custody of his daughter. Ms. Campbell stated that they never received a plan from him until late in the process and the Agency did not have time to access his abilities. The Agency opposes any plan in which the child is placed in his care.
[44] The mother opposes the biological father’s application for custody because
he paid no attention to his daughter for two years and he uses marijuana regularly.
At the same time she would prefer a family placement rather than a placement with the Agency.
CONCLUSION:
[45] I have considered the evidence as a whole, including the evidence of witnesses who testified on behalf of the parties and the exhibits filed. I have considered the preamble to the Children and Family Services Act and the relevant statutory provisions and the submissions of counsel.
[46] The Court is required to make an Order in the best interests of the child taking into account all relevant circumstances including the factors set out in Section 3 (3) of the Act. The maximum time limits pursuant to the Act have expired. The Court must either return the child to the care of one of the parties or place the child in the permanent care and custody of the Agency.
[47] The mother’s lifestyle was driven by frequent changes of residences, weekly visits to bars, social use of drugs, and various house guests and unsanitary and untidy home conditions. The mother had unresolved anger issues which led to conflict in family and personal relationships. The mother paid more attention to her own circumstances than her child’s needs. All of these factors created a home environment which resulted in the child being found at substantial risk of physical harm due to neglect. The Agency attempted to work with the mother to address these various issues. The Court imposed conditions in various Orders to allow the safe return of the child to the mother’s care while she addressed the risk factors which led to the child being found in need of protection.
[48] The Court finds that throughout the process the mother was resistant to the intervention of the Agency and reluctantly complied with conditions imposed by the Court. If it were not for the Court proceedings it is unlikely the mother would have addressed the factors placing her child at substantial risk of physical harm through neglect. Both the mother and psychological father played games with the Agency about the nature of their relationship to avoid couple counselling. At times they were living together but said they were not in a relationship. Other times they were living separate and apart but continued to see one another for a sexual relationship. The mother agreed to a finding that the child was in need of protective services but continued to resist Agency intervention and assistance. As a result the child was taken into the care of the Agency a second time.
[49] The Court agrees with the assessment of Mr. Bryson that the mother lacks insight into her problematic lifestyle and the risk to the child of her lifestyle.
[50] Since April the mother has made progress in her personal situation. She is residing by herself in her own apartment which she manages to keep clean and tidy. However, the mother has a history of frequent changes of residences and this period of stability only has been a few months. Also she is not under the stress of caring for a child.
[51] The mother continues to use alcohol and on one occasion smoked marijuana. Because of her past misuse of these drugs the child will be at substantial risks of physical harm through neglect should stress factors reappear and the mother resorts to more frequent use of these drugs. While she is not abusing these drugs at present, she minimizes her substance abuse problem and fails to recognize the need for more education, counselling and abstinence.
[52] The mother has unresolved anger management issues which have not been addressed. Although she has made arrangements for counselling regarding anger and lifestyle issues, these sessions have not started. It is evident that her anger at the Agency has prevented her from addressing the chronic lifestyle issues which impacted negatively on her care of her daughter. Although the mother has taken parenting courses, the Court is uncertain whether she is able to apply the information she received. Until adequately addressed through counselling, the mother’s anger will continue to define her relationship with those who wish to help and the child will be at risk of physical harm through neglect.
[53] Although the mother loves her child and wants to care for her she does not seem to be able to put her child’s needs ahead of her own needs. Mr. Bryson noticed an anxious attachment between the child and the mother. The access supervisor noticed more interaction between the psychological father and the child than the mother and the child. The psychological father provided a great deal of child care for the mother. The mother missed many access visits from June to October . The mother relied upon CMS to care for her older child. CMS and his mother noted the mother’s indifference towards the child’s needs at times. Safety issues identified by the access supervisor were met with denial rather than concern about the child’s safety. Inappropriate supervision was a chronic issue identified by the Agency which the mother seems unwilling or unable to address.
[54] I find the degree of risk that justified the finding that the child was in need of protective services still exists.
[55] I accept the assessment of Mr. Bryson that the circumstances justifying the finding that the child was in need of protective services are unlikely to change in the reasonably foreseeable future which would allow the child to be safely returned to her care.
[56] The placement of the child with a relative of the mother is not possible at this time and no plans were put forward by any relative or a friend of the mother. I find that the least intrusive alternatives including services to promote the integrity of the family have been attempted and failed.
[57] I have considered the plan of the Agency and the plan of mother. I find the plan of the Agency is more suited to the child’s best interests than the plan of the mother. In determining the child’s best interests I have determined that continuity in care would be disrupted if she is returned to the mother. There is an anxious bond between the child and her mother. This anxious attachment and lack of secure placement would impact negatively on the child’s development. Also there is substantial risk the child may suffer harm through neglect should she be returned to the care of her mother.
[58] The child continues to be at substantial risk of physical harm due to neglect. The mother was unable to overcome the risks factors which led to this finding despite services being put in place to assist her. The child continues to be in need of protective services. The child can not be returned to the care of the mother and be adequately protected in the foreseeable future. It is not possible to place the child with a relative of the mother.
PSYCHOLOGICAL FATHER:
[59] The psychological father has a positive relationship with the child. He provided help to the mother in caring for the child. He was playful with the child. However he was never responsible for caring for this child on his own. The Court has serious concerns about the psychological father’s motive in seeking custody. He obviously wanted to continue a relationship with the mother. He is charged with assaulting the mother during a disagreement about the continuation of their relationship. Shortly before the current proceedings, he attended at the mother’s residence in breach of a Recognizance. The child still would be at risks of exposure to violence in the tumultuous relationship between psychological father and mother. The persons identified to help him in the care of the child did not testify on his behalf. There are many unanswered questions about the stability of his life and his residence and the nature of his relationship with the mother. The psychological problems identified by Mr. Bryson in his Assessment have not been addressed by the psychological father. It would not be in the child’s best interests to place her in his long term care and custody.
BIOLOGICAL FATHER:
[60] The biological father does not have a relationship with the child and the child does not know him as her father. The Court is uncertain about the father’s ability to care for the child on a long term basis. There is evidence that he provided care to the mother’s older child with the assistance of his mother. He has the support of his mother and the maternal grandmother indicated that she would support the child being placed in his care.
[61] The Agency does not know whether his residence is an appropriate placement since they did not have time to assess his abilities and circumstances.
[62] The biological father indicated to the Agency in February an intent to seek custody of his child if the mother was unable to care for her . He was not able to introduce a plan for consideration by the Court until September. The Agency agreed to add him as a party to the proceedings but he was unable to participate in the proceedings until September 2005 when it was too late to assess his abilities.
[63] The Court is uncertain whether it is possible to place the child with him pursuant to Section 42 (3) of the Act.
[64] The maximum time limits pursuant to the statute have expired and a Court must either place the child in the permanent care of the Agency or with the biological father.
[65] I have considered the plan of the Agency and the plan of the biological father. I find the plan of the Agency is in the child’s best interests. In determining the child’s best interests I have considered that no bond exists between the child and the biological father and further disruption in the continuity of the child’s care would have a negative impact on the child. The father’s ability to care for the child and to provide the child with a positive relationship in a secure home environment which is important for the child’s future development is unknown. The biological father’s lack of commitment to the child prior to February 2005 raises questions about his long-term commitment to care for the child.
ACCESS:
[66] Section 47 (2) provides:
(2) Where an order for permanent care and custody is made, the court may make an order for access by a parent or guardian or other person, but the court shall not make such an order unless the court is satisfied that
(a) permanent placement in a family setting has not been planned or is not possible and the persons access will not impair the childs future opportunities for such placement;
(b) the child is at least twelve years of age and wishes to maintain contact with that person;
(c) the child has been or will be placed with a person who does not wish to adopt the child; or
(d) some other special circumstance justifies making an order for access.
[67] The Court has the authority to make an Order for access after a permanent care and custody Order is made. The Court is instructed not to make an Order for access unless the Court is satisfied that permanent placement in the family setting has not been planned. The Agency plans permanent placement in a family setting. Allowing access to the mother and psychological would impair the child’s future opportunities for such a placement since they are unlikely to change the circumstances which led to the child being placed in the permanent care of the Agency in the foreseeable future. Therefore, the Court finds that an Order for access is not appropriate with respect to the mother and psychological father.
[68] There are special circumstances which justify making an Order for access with respect to the biological father.
[69] The child is not yet three years old. It may be possible to place the child with her biological father and his family. The biological father’s circumstances and parenting capacity could have been assessed prior to the final hearing in October but he was unable to participate until September 2005. The Agency knew he wanted to present a plan of care for the child in February and later agreed to his participation but did not take any steps to assess his circumstances until he was formally added as a party when it was too late. While the father was tardy in seeking a relationship with the child there was still plenty of time between February and September for his circumstances and capacity to be assessed.
[70] The Court is satisfied that an access Order for a limited period of six months (to expire on April 13, 2006) is appropriate in order to have the father’s parenting capacity and circumstances assessed. The Agency is to arrange for a parental capacity assessment and the father is to make himself available for an assessment. Access between the child and the father will be in the discretion of the Agency and will allow the child and the father to be viewed by the Assessor.
[71] The access Order will expire automatically on April 13, 2006 unless there is an application to vary the Order.
[72] The Court is satisfied that this limited access Order will not impair the child’s future placement for a permanent placement in a family setting given the child’s young age.
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DARRYL W. WILSON, J.