(FAMILY DIVISION)
Citation: Nova Scotia (Community Services) v. F.M., 2009 NSSC 366
Date: 20091014
Docket: SFHCFSA-059227
Registry: Halifax
Between:
The Minister of Community Services
Applicant
v.
F.M. and M.R.
Respondents
Restriction on publication:
Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication.
Section 94(1) provides:
"No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or relative of the child."
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Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Judge: The Honourable Justice Deborah Gass
Heard: September 14, 15, 16, 17 & 18, 2009,
in Halifax, Nova Scotia
Oral Decision: October 14, 2009
Written Decision: December 3, 2009
Counsel: Pamela MacKeigan, for the applicant
David Morrison, for the respondent F.M.
Eugene Tan, for the respondent M.R.
By the Court:
[1] This decision is with respect to an application brought by the Minister of Community Services, with F.M. and M.R. as the respondents, for an order for permanent care and custody of their two children: J.R., who was born May *, 2007, who is now two years of age; and N.R., born April *, 2008, who is now one year old. Both are approaching the half-year mark, two and a half and one and a half, but not quite there.
[2] I have, in coming to this difficult decision, considered all of the evidence that has been put before me, both the documentary evidence and the oral evidence that I have heard. I have also considered the case law and the relevant provisions of the Children and Family Services Act.
[3] The burden of proof is on the applicant and it is a civil burden of proof, in other words on a balance of probabilities.
[4] The court is mindful that state intervention in the life of a family is a significant intrusion and the evidence is carefully looked at in light of that.
[5] At this stage of this particular proceeding there is a deadline of November 10, 2009 by which the lawmakers, our legislators, have determined that the matters relating to the children should have proceeded to the point where either in this case an order for permanent care and custody would be made, or a dismissal of the application resulting in the immediate return of the children to their parents outright, without any supervision. The only length of time for supervision that would be available would be up to November 10, 2009.
[6] Each child must be considered separately within the realm of the relevant circumstances relating to the best interests of the child and the court must determine at this juncture which of the plans is in the best interests of each of these children and in doing so apply the provisions under s. 3(2) of the Children and Family Services Act, which I won’t quote at this point. I will go into that a little bit later in the decision.
[7] The court begs the indulgence of counsel for what will probably be a somewhat disjointed decision. There is considerable evidence that the court had to consider. There are two children whose circumstances are different in this matter and, should it be committed to writing, I would indicate that I would edit it and tidy it up if that were necessary.
[8] This matter first came to the attention of the applicant, the Minister of Community Services, as a result of a referral from the IWK Child Abuse Team when the parents presented at the hospital late the night of June 12th, 2008 with their two month old son, N., who was unresponsive, reportedly after apparently choking.
[9] The child was diagnosed with subdural haematomas, bleeding on the brain, and retinal haemorrhages consistent with inflicted force. The usual protocols were in place at the hospital for alerting medical personnel and the parents presented in a manner that raised red flags for the possibility of child abuse. Some of those circumstances that were noted at the time were the nature of the injuries to the child in that they were inflicted injuries, and that there was no alternate explanation for how those injuries came to be that were sufficient to satisfy the very serious level of the haematomas and haemorrhaging. As well, there were observations that the father appeared to be controlling in the dynamic of the relationship between the mother and the father. As well, the mother’s affect was flat and apparently unemotional. They left the hospital in the wee hours of the morning and they didn’t come back. The next morning they were called on the telephone and there was a telephone interview to try to get to the bottom of what led to the child being brought to the hospital. They indicated that they would be some time getting back to the hospital because they had errands to do.
[10] There was another matter of concern, which was N.’s failure to thrive. However, it was indicated in the medical reports that this could not be wholly attributable to parental neglect as N. had a pre-existing condition which affected his ability to feed resulting in significant vomiting. He also suffered from gastro-esophageal reflux and there were some pre-existing conditions. So that was not really a major concern to the medical personnel in terms of parental conduct, more it was the issues with respect to the subdural haematomas and the retinal haemorrhaging. And, as I indicated, it did turn out that N. was born with two pre-existing conditions and they had nothing to do with the care he was receiving from his parents, but they certainly did impact on how he was developing and the difficulties that he was having, which in turn impacted on his parents and their care of him and their ability to meet his needs.
[11] A Notice of Taking into Care was issued on June 13, 2008 as a result of the concerns raised about the severe injuries to N. and he was taken into care on that date along with his brother J.. Both children were found to be in need of protective services and a temporary care and custody order was granted and continued right through with the first disposition order being made November 10, 2008, which was a temporary care and custody order.
[12] Before N. was brought to the hospital, it is significant to note that he was being medically monitored quite closely. The parents were aware that there was some pre-existing condition that affected his ability to feed. It turns out that there were actually two significant congenital issues for N., and I can’t put my finger on the letter from the geneticist at this moment, but one was with respect to the grey matter moving into the appropriate part of the brain and the other being the 22Q deletion, which was a chromosomal defect. At any rate, he was closely monitored, he was taken to the doctor, and at the age of four weeks he was in the hospital for a number of days. He was born with one virtually non-existent or defective kidney so he had renal difficulties, he had gastro-esophageal problems and as it turns out with some of these other defects it affected his whole ability to suck and swallow and it just generally affected his feeding ability.
[13] It is significant to note though, that while he was being taken to the doctor on a regular basis, there was nothing serious noted with respect to parental care by the attending physicians. When he was in the hospital, although the parents didn’t stay and were encouraged to stay, again it did not appear that there were alarm bells at that time. There was nothing raised at the time of his birth. But this did all culminate in his presentation at the hospital in a very serious state on the 12th of June.
[14] There was extensive oral evidence heard and I took extensive notes with respect to the evidence of all of the witnesses and I don’t intend to go into it in any detail, I will only highlight those points as they are relevant to the decision that I have to make this day. But the first and most significant perhaps is the evidence of Dr. Bellemare. His evidence is quite contentious and is virtually dismissed by the parents as being an overreaction and poor judgment in that he determined that the injuries to N. were inflicted and that the explanations that the parents gave were not sufficient to explain the injuries that he was suffering.
[15] Dr. Bellemare is an expert in pediatrics and in the area of child abuse. He did indicate that the brain and eye injury that N. sustained, was serious bleeding consistent with inflicted application of force either by shaking or a very significant impact, and likely a combination of both. At no time did he make a diagnosis of Shaken Baby Syndrome, but he very clearly indicated that the injuries were consistent with the application of force either by shaking or very significant impact and, in his view, it was likely a combination of both.
[16] As a result of this brain injury N. will experience some lifelong problems. It does become a little grey when one gets into the area of the brain injury that he suffered and the congenital defects he was born with as well, but it is clear that he does have a compromised immune system and is prone to infections. He will experience and is experiencing developmental delay. As I’ve indicated, according to all of the evidence, it is difficult to sort out which problems are the result of the birth defects, or the result of the brain injury, or whether the birth defects are exacerbated by the brain injury.
[17] The court will focus on the evidence that points to the issues of the protection concerns which gave rise to this application, ongoing protection concerns and the best interests of the children.
[18] Dr. MacRoberts’ evidence was significant in assisting the court in ascertaining the current and ongoing difficulties that N. has and will experience both as an infant, a child and into the future. She is an expert in pediatric medicine and she has been following N. since August of 2008, essentially having taken over the management of his care after he was taken into care. She described N.’s complex history and multitude of problems, including the residual problems from the subdural haematoma which is the result of an intentional infliction of force. She also spoke of his problems that result from his chromosomal abnormality, some of which include the difficulty in getting him to take food. He also had chest problems; he had a collapsed lung; he suffers from the gastro-esophageal reflux disease; he has kidney problems; and he had difficulties in that he was not gaining weight and he was developmentally delayed. He currently, according to her evidence, requires five to ten medical appointments a month at the IWK and later on I think it was Ms. B. who indicated it is somewhere in the vicinity of eight to ten appointments. He also requires early intervention. There is the 22Q deletion, which is one of the congenital abnormalities and the effect of this chromosomal defect can be for him a multitude of issues, including Schizophrenia, developmental delays, renal defects, heterotopia, behavioural issues. She indicated as well that this chromosomal defect would have occurred very early in the child’s gestation or at conception.
[19] N.’s needs are going to evolve. He lags farther and farther behind as he gets older and the issues with regard to growth and development will continue to evolve. It is clear that he is going to have very high needs, and that he requires mature, calm parenting. He will have seizures that will have to be coped with, he needs a consistent and organized environment; he is taking as many as 13 to 15 medications a day.
[20] It was her opinion that N. will not be able to live independently and that he will require supervision. And as I’ve indicated, while some of these issues are the result of his congenital condition, it is impossible to separate out what are the results of the brain injury he sustained, but it is clear from the evidence that his situation will get worse as he gets older and that his needs require a lot of active parental education. There was also evidence with respect to his compromised immune system and the ongoing health problems that he will suffer as a result of that. There were also issues with respect to his posture and the possibility of the need for rods in his spine and that sort of thing. He will require a lot of medical intervention. So he is described as a very high needs child who will have moderate retardation and be unable to live independently. That essentially describes N..
[21] I’ll speak about the parents first, before I speak about J.. The parents of these two children are quite different in their background and circumstances. The mother, Ms. M., had a stable upbringing, she was an excellent student, she was valedictorian. She lost her mother in 2007. She is very close to her father who lives in * and they speak on the telephone regularly, but she is physically over here in Nova Scotia without any real family or community supports here.
[22] Mr. R., on the other hand, has had an unfortunately unstable upbringing that involved family difficulties, and behaviour problems. He was in and out of foster care. He has struggled with mental health issues including depression, and on occasion there’s been an attempted suicide. So he has had an unfortunate background of poor family relationships and a much less stable upbringing than that of his partner.
[23] In terms of their own relationship, Mr. R. expressed dissatisfaction with his relationship with Ms. M. and concern about her being too dependent upon him. In fact he was unfaithful to her during her pregnancy with N.. He spoke of a prior relationship that he had that was quite significant to him that ended abruptly. It was difficult for him, and very shortly thereafter he met Ms. M. and they began their relationship.
[24] One of the big concerns that was expressed in the parental capacity assessment was that of the stability of this couple’s relationship and in particular Ms. M.’s significant dependence on Mr. R. and his own dissatisfaction with the relationship. And while the stability of a relationship in and of itself might not be a protection concern, in the context of all the other circumstances, the issues that face these children, and in particular the significant needs of these children, parental stability is of great significance.
[25] I am going to speak briefly at this point about some of the evidence that was given by some of the other witnesses, and in particular the evidence of the family skills worker and the access facilitators. I have to say that their evidence was very compelling. They testified as to how well the visits went with the parents and the children. There were no concerns. They were all consistently very positive reports. The evidence was that the children enjoyed their parents and their parents were loving, attentive, affectionate, child-focussed, balanced to both children and cooperative with each other. There was nothing but positive comments about these parents and that they were responsible and committed to their access with the children. The court was most impressed with the consistency of the positives in the reports of these individuals, and as was rightly pointed out, this was really the only view that the court had of these parents in a parenting role because there was no evidence about what happened before N. was taken into the hospital. So the court is very mindful and compelled by the positive nature of these parents’ interaction with these two children and their commitment to their time with them.
[26] On the other hand, the court is also very mindful of the fact that these sessions were one hour at a time, although I think they have increased in duration but not in frequency because of all of the appointments that N. has. They were in a controlled, artificial setting and very short duration, and the court has to bear that in mind in weighing the risk to the children and what is in their best interests. The viewing of the parents’ cooperation and attentiveness to the children in that limited and controlled setting is hardly indicative of how one would cope in parenting 24 hours a day, seven days a week with two infants, one being an infant and the other becoming a toddler, particularly where one of them, being the smaller of the two, has extremely high needs and the other has some moderate needs. So we have a situation where those reports are extremely positive as to the parents ability to work together and focus on the children but the court is mindful of the limitations of those observations and the realities of parenting two very tiny children, one with very significant needs and the other with some moderate needs along with just the usual needs of an increasingly active toddler.
[27] I also want to take a moment to comment on some of the observations that were made with respect to the mother and the father that tended to give a negative impression of each of them in terms of their presentation. The first is the evidence of the flat affect that the mother demonstrated and her lack of emotion. Much has been made of that lack of emotion portrayed by the mother throughout these proceedings, and it was noted by the assessors and as well I believe Ms. Green, who was involved in one-on-one counselling.
[28] The court is mindful that different people have different ways of coping with stress, and this was indeed an extremely stressful circumstance for the mother. We have learned much about demeanor and it does not always mean what it seems to say to the observer. We have to be very careful when we are evaluating and judging how someone reacts or responds. The court is mindful that in this situation the mother was still very much in her post-partum phase; the child was only two months old when he was brought into the hospital; and he was already a child with high needs and there were frustrations in dealing with him. She also had an eleven month old baby at home when N. was born. She now had, when she presented at the hospital, a child whom she was told was injured, seriously injured. Her children, both of them, were then taken into care. So all of those circumstances would indeed be extremely stressful and it is difficult to know how much of how she presented was her own defence mechanism in dealing with the overwhelming circumstances that she was and had been facing up to that point and throughout these proceedings.
[29] On the other hand, the access people and the family skills worker indicated that she did show emotion and Ms. MacLeod, in particular, said “... there wasn’t a phony bone in her body ...” and that she was not faking it when she was showing her emotions. So one can question how to explain this difference. Some of the people working with this family said that she had no emotion and she was very flat and others said that she was most appropriate and showed emotion, so how do you explain that? The only conclusion the court can come to, and certainly Ms. M.’s evidence would indicate, was that she was in a setting with these individuals where there was some level of trust and comfort; she felt to some extent that they were allied with her, they were on her side and it was an environment where she felt more relaxed whereas she felt very much under the microscope of the others. So that does explain, to some extent, in my view that affect. I don’t give a great deal of weight to it, except to some extent when they spoke of her lack of emotion, it was mentioned that she did demonstrate some emotion or more emotion when it was around the possibility of being required to leave Mr. R. and establish an independent parenting situation. So, to that extent, her emotional reaction does have some relevance to the matter because there are grave concerns throughout this proceeding of the experts about her dependence on Mr. R. and her social isolation. Mr. R. himself testified with respect to her dependence on him, and she herself expressed concern at one point about the difficulty one would have in choosing between ones’ children and ones’ partner.
[30] There was also some suggestion that she came across as being very matter of fact, and it may well be that that is just how she is. Circumstances can account for that sort of thing and how much she detaches herself from difficult situations in order to shield herself from the stress of all of this.
[31] As well, there was considerable emphasis placed on Mr. R.’ pre-occupation with his innocence of the crime with which he is charged. As a result of the child being brought in on the 12th of June, and the nature of the injuries sustained by the child, he has been charged with aggravated assault. It is a very serious offence and he has been pre-occupied with his innocence, and that has also raised some concerns. But, again, in looking at the whole situation it would not be unusual for someone who feels they have been wrongly accused of such a horrible crime, especially to ones’ own child, and being certain of ones’ own innocence, to be pre-occupied with establishing and proving that one is innocent of the offence. In essence, he is fighting for his life and it is difficult for one to put oneself in the shoes of an individual who is facing such a serious charge and is convinced that he is not guilty of that offence. So, again, the pre-occupation with his innocence is not something that the court places a negative inference on because in my view that would not be an unusual reaction.
[32] As well, there were some explanations for the concern that the parents left the hospital and did not come back immediately, but came back later in the day after N. was taken in the last time. They were exhausted and they had a one year old infant at home. It was the evidence I believe of Dad that they did have to get some supplies into the house if they were going to be at the hospital for any extended stay. There was an issue of child care for their one year old. It is significant to note, however, that when N. had the urinary tract infection at four weeks of age and he was in the hospital, he was basically left alone there for the time that he was there. There were issues of child care again, and the question of money, which were understandable. But while they had some explanation for that, one would think that they would have perhaps taken turns in staying with N. at the hospital. It was at a time when Dad was not working and it would have been possible for them to have worked it out so that one of the parents could have been there most of the time, even if not all of the time. This did leave the court with some concerns that the child was left alone on both occasions.
[33] Turning to the injury again, the evidence was that N. suffered inflicted head trauma. I will emphasize that this is not a criminal trial and the standard of proof is different here. It is not proof beyond a reasonable doubt, rather it is the balance of probabilities. It is clear from the evidence that the child N. did suffer serious injuries and that there is no adequate explanation for those injuries. The evidence which is un-refuted is that they were inflicted and because there were no others caring for the child they were incurred by N. while he was in the care of his parents.
[34] The father denies doing anything deliberately to the child which would cause this level of trauma. The explanations the parents have given, and there were a number of them, were ruled out as being insufficient to cause the injuries the child sustained. There was a frank admission by Dad of some frustration with N.. He was very forthright about that in terms of the frustration with feeding, etc., and he did acknowledge that on one occasion he held him up in front of him and told him to shut up and he demonstrated how he did that. However, at another point in his evidence he said that N. did not cry loudly. He also dropped N. on the bed, I believe it was June the 11th, where his mother was lying, dropped him from the standing position and N.’s head hit his mother’s arm, but that was not considered to be something that would be significant enough in and of itself to sustain that kind of injury. There was also the evidence of the mother rushing into the bathroom with N. in her arms and accidentally banging his head on the side of the door. And, as well, there was some reference to him having excessively forceful bowel movements and they thought the strain might have contributed to his injuries. But none of those explanations explained the degree of injury that the child sustained. Those injuries were so significant and so severe that none of those incidents would be sufficient to explain it.
[35] There was also some suggestion of J. throwing toys at him, dropping them on him in the crib, but that too was not an explanation.
[36] So, certainly, there is absolutely no doubt that the child actually suffered physical harm while in the care of his parents. Whether or not that injury to N. was intentional, or whether it was unintentional and in a moment or during moments of frustration when a parent might have lost his or her temper, the fact remains that N. was seriously injured while in his parents’ care. The injury was inflicted while in their care, there were no other caregivers, so that the only conclusion is that it had to be inflicted by one of the parents and that the other parent did not, would not or could not protect the child from physical harm by the other parent. There is the maxim that counsel would be familiar with, res ipsa loquitur - the thing speaks for itself.
[37] So, the question then is: with that information what does the court do? There is very little evidence as to how the respondents parented their children in the home. The only information the court has available to it is what the parents provided themselves. This is not a situation where the agency was involved with this family prior to June 13th, 2008. There were no child protection concerns reported before N.’s birth, there were no prenatal concerns, nothing reported at his birth or in the follow-up care in the eight weeks before he was brought in on the 12th of June, nor even when he was hospitalized at four weeks except for the reference to the fact that the parents were not there. So the only independent view of their parenting was provided after the children were taken into care, and then it was only in a very controlled and limited setting.
[38] What we do know is that Ms. M. and Mr. R. were a young, isolated couple with an eleven month old child, living in an apartment and they had another child born within a year of the birth of their first child. There were significant problems in their relationship. It was strained to begin with and one can only imagine how stressful it was after the birth of N.. This new baby suffered significant difficulties in terms of feeding, etc., and then eventually sustained this significant brain injury that presented at the hospital, which occurred at the hands of one or both of his parents in the family home, with the other parent seemingly unable to protect the child from harm.
[39] Because of this serious inflicted brain injury, and I make no determination on how it came to be, whether it was unintentional or deliberate, and how it occurred, the result is that we have an infant with some very high needs.
[40] Ms. M. and Mr. R. have another child, a toddler, J., and they are about to have a third child and it will be their third child in less than two and a half years. I have been somewhat repetitive in working through this but I will say it again: the child has suffered the physical harm and that, coupled with his congenital problems, requires significant parental and professional intervention and treatment. In listening to the evidence, he requires extraordinary parenting. Ms. M. and Mr. R. have little in the way of community and family support to assist them with the extreme demands of parenting these two young children. They also have work demands. The child also has some significant developmental conditions which will require ongoing intensive care and supervision. When one considers the task of doing that with two small children, it would be virtually impossible to meet the needs of N. with three small children under the age of three.
[41] The mother acknowledged in her evidence that the father would become frustrated with N. and she would encourage him to be gentler or she would take over to alleviate his frustration. She has also indicated that she is very committed to her relationship with Mr. R. and has no intention of leaving the relationship. Therefore, I can only conclude that the child N. has not been adequately protected while in their care, and there does not appear to be any evidence of insight or changes in their approach to parenting which would suggest that N. could be adequately protected in their care. Because there is no acknowledgement of a problem, there are no services and there have not been services in place to address the problems. There are no alternative family or community placements and it would appear that no consideration of leaving Mr. R. and going to * with the children has been given any real consideration by the mother.
[42] So the circumstances that led to the child N. being taken into care have not really changed. There is no acknowledgement that anything untoward happened and therefore no reason for remedial action to be taken.
[43] The agency’s plan is for permanent care and custody of the two children with adoption. The plan would be for a sibling placement. There is little evidence before the court on the likelihood of the prospect of these two children being placed together for adoption, but there was evidence that there are adoptive families willing to do so. The court is mindful, however, that N. is a young child with very high needs and that places some special challenges towards adoptability. Any parent who assumes care of this child will have to have all of the attributes and abilities that the current foster parent has and has acquired, which have not in any of the evidence before the court been demonstrated by the parents. Priority has to be given to the child, there is a multitude of appointments that need to be kept, there is an extensive medication regime that is very carefully timed, that has a significant affect on the child’s sleep. He requires a highly organized, calm and stable environment and the requirement that the parent be focussed totally on the needs of the child.
[44] The child has had ongoing problems with growth and development even while in care. But it does appear that his condition has improved and he is extensively monitored. His circumstances will continue to evolve and be more demanding and yet the parents circumstances do not appear to have changed. The demands on their time would see yet another child introduced into this family unit. They don’t have much in the way of support and their own relationship is very tenuous. Again, had mother formulated a plan to go to * with the family, that might have demonstrated some insight and recognition that some changes need to occur.
[45] They did not meet with Dr. Bellemare personally and directly to get more information from him or to question him directly. They only had the telephone contact with him. Dad dismisses the evidence of Dr. Bellemare outright. He does not accept his opinion and he blames Dr. Bellemare, as I’ve indicated, for rushing to judgment. Further, they never met with Dr. McRoberts to learn more about N.’s ongoing conditions and what is required in his parenting. It was significant to hear Dad speak about how much he learned from sitting in court and listening to Dr. McRoberts evidence with respect to N. and his needs. Nor did they ever meet with the geneticist or get any genetic testing done when it was offered and suggested that that might be helpful to them, both in dealing with the existing situation and planning for the future.
[46] Having said all of that, there is no question in my mind that the best interests of the child N. can only be met by an order for permanent care. I am not satisfied that the circumstances that caused N. to be brought into care have been alleviated or ameliorated by the parents. He has already suffered significant physical harm and the parents are not able to protect him from harm. There is no alternate placement available to him and the circumstances that caused him to be brought into care do not appear to have changed in any way and certainly will not change within the time frame set out in the legislation.
[47] The child J.’s circumstances were and are different from those of N.. There is no medical evidence of any concerns regarding J.. The parental capacity assessment noted that there was some developmental delay with J. in that at the age of 22 months he was not speaking and at the age of 13 months he had not been introduced to solid foods, although there was some suggestion that the parents were about to do that when he was taken into care.
[48] There was evidence that he was more comfortable in his crib and did not want out of his crib when he went into foster care, and there would be some question about whether that was a comfort thing for him. However, at the same time there was evidence, and it was evidence from the parents themselves, that he was essentially left often to entertain himself while they played video games and he was barricaded in the living room. They described him as a good child, a bright child, and there were all kinds of positive things that they said about him, but they weren’t able to be very specific when they described their interaction with him and what he did do and what he was capable of doing. The overall picture that was left with the court was that the child was, to a large extent, left on his own. It was noted as well by the foster mother that he really did not know what to do with toys; that he did not engage in eye to eye contact; that he really did not seem to know how to play, and that he basically was more comfortable just being left alone in his crib. As I’ve indicated, some of that might be a self-comfort after having been removed from the care of his parents, but also there were issues with respect to language delays. However, Dr. Bellemare said that even those things that were noted about J. could be attributed to other reasons and not necessarily parental neglect. There were language delays, but at the same time we are dealing with a child who, at that point when he was taken into care, was 13 months of age, and he couldn’t hold his own bottle. There were also some concerns about anger and aggressive behaviour and that might as well have been a reaction from being detached from his parents. On the other hand it does appear that while those issues still are there and he has been referred to Dr. Pure, those circumstances seem to be improving somewhat. He also presented with a very serious diaper rash that caused the foster mother to take him to the doctor right away with respect to that.
[49] The evidence of the social worker was, however, that this family would not have come to the attention of the Minister were it not for N. being brought to the hospital and the parenting of J. does appear to be a different circumstance that the parenting of N. and the court does have to ask the question while the parenting of J. may not be perfect parenting, would it constitute good enough parenting? Are these parents capable of parenting one child at a time but not two or three?
[50] The court struggles more with the situation with respect to J. because it was not his circumstance that brought the children into care; it was the circumstances with respect to N.. However, there was a lot of evidence that indicates that the parents do not put the children’s needs ahead of their own and that to some extent they see their children as possessions or as objects of pride. They did not have in place any child focussed sleep schedule. There appeared to be very late nights, not much of a routine in place, issues with overnight work and J. being up very late at night or extremely early in the morning. There were also concerns about whether or not he was receiving adequate stimulation, Mom and Dad’s ability to put their children’s needs above their own. There was some suggestion that there were some financial priorities as well. Work was very important and necessary for them, as it is for everybody to maintain a home for the children, but at the same time it would appear that there were times that the financial concerns came ahead of the children.
[51] Dad saw his role as a best friend to the children, and particularly J., and spoke of playing with him. At one point there was a concern that he had with respect to the foster parent showing J. off and that J. was his child and not the foster parent’s, and he stated “J. is mine”, and of course the child is not a possession. He spoke of his love for F.M. and the children and of them being together in a bubble with him.
[52] As well, there was in the evidence a concern that the mother demonstrated a lack of appreciation and understanding of J.’s personality and his development. That came out in the psychological assessment, and it appeared from those reports that the children were seen to meet the parents’ own emotional needs versus them meeting the children’s emotional needs. While Dad appeared to have a better understanding of parenting and developmental milestones, he also had difficulties in coping with stress, and certainly stress was very high after N. was born. There was also a concern raised that he indicated that he would hesitate in future to seek medical attention for the children as a result of the horrible experience that he has had as a result of taking N. into the hospital.
[53] There was also evidence that the emotional environment for J. in the household of his parents is one full of anxiety and unpredictability with the uncertainty of his parents’ relationship. He had been exposed to arguing and tension in his parents’ relationship and it is acknowledged that while Mom was pregnant with N., Dad was involved in another relationship and that there has been incredible stress in their relationship.
[54] While they did acknowledge the need for structure for their children, it did appear that rather than the parents’ schedule revolving around the children, and in this case I’m speaking of J. because he was with them for a longer period of time, it seemed that J.’s schedule revolved around his parents’ schedule.
[55] The current stressors that the parents face, and stress certainly does appear to be something of concern in terms of Dad’s ability to cope, is the outstanding charge of aggravated assault that he faces, the instability in their relationship which continues, the financial stresses, the stress of N.’s condition that they were living with for several months, Mother’s own health, the fact that they are expecting a third child, their continued isolation, there was not much by way of compelling evidence on the part of either the mother and the father of any real interaction outside the family unit. There was some reference to getting J. involved in a play group because they saw how well he played with another child while observing him at the hospital, but they had not made any progress in terms of expanding their environment. The mother’s continued loyalty to the father, her dependence on him, and the father’s continued expression of not liking people and his world being that of F.M. and the two children. So the lack of external support still appears to be very evident and it appears that the mind set is such that their ability to move outside the sphere of their family and seek outside support is very, very limited.
[56] So the court then has to take all of that information with respect to J. and determine what is in his best interests. Certainly the preservation of the family unit is the goal if it is in the best interests of a child and not contrary to it. The court is handicapped in that we don’t know anything about their family situation except what we have learned from them. J. is just two years of age, he is non-verbal, he is a fragile child and he is totally dependent on his parents for his well-being.
[57] Less intrusive alternatives in this situation are a problem in this situation because there was a lack of acknowledgement to begin with and the need for those services because the parents didn’t perceive that there was a problem, so there really were not services that were put in place that were successful. Therapy for the mother only went on for a very short period of time and was terminated at her request. Services were provided to facilitate access and those were very successful. There was some suggestion with respect to the need for anger management and I don’t think it was through any fault of Mr. R. that it did not happen, it seems that there was maybe a glitch in getting that going.
[58] Of incredible significance in this matter is the issue of separation of siblings, and the court has to deal with the protection concerns with regard to each of these children separately and I’ve considered the case law in that regard.
[59] With regard to the decision in the Children’s Aid Society and C.L and T.C., which is a decision of the late Judge Daley back in 1996, that was a situation where the two children were actually living in separate foster homes for 18 months; they were aggressive towards each other; there was one child who had special needs and that child went into permanent care. The other child was returned to the mother. Again, it was a situation where the mother and the father were separated, the mother couldn’t handle two, she was about to have a third child, she had been in a controlling relationship but there was intensive work done and progress made, and there was minimal connection between the two siblings. In this case the two children are very close and the circumstances of the parents essentially remain the same as they did when the children were taken into care. To quote Judge Daley, “siblings should not be separated unless there are exceptional reasons to do so”.
[60] The decision of Judge Williams in 1995 in MCS v. K.M.S. was a situation where the children were split up, but the circumstances were quite different and one child had been in a grandparent placement and the agency wanted to keep the siblings together. There was attachment, but they had two very different histories over two years and they formed separate attachments.
[61] This presents the obvious dilemma for the court with respect to J.. The plan that the agency has, and the court has to look at their plan of care versus the parent’s plan of care and the parent’s plan of care would be to have both children returned to their care, the court has already determined that it would not be in the best interests of N. to return to their care. The court can not bind the agency after a permanent care order to keep its obligation or to keep its intention to keep the children together, although certainly that is very clearly their intention. And the court does have some concerns about the chances of that occurring where we have the very significant needs of the younger child, coupled with some moderate needs of the older child, but the intention is there and the intention is there for adoption, and the court places reliance on that in weighing all of the alternatives that are available.
[62] It is also clear from the evidence that there is significant attachment between these two little boys and that it is a very loving and nurturing relationship. There are no guarantees in anything and the court has to struggle with a consideration of that. Because there are no guarantees that these children will remain together in the long term, would it be in their best interests to separate them now and return J. to the care of his parents? How viable is adoption for these children? It is known that long-term foster care is not in the best interests of children. That is offset by the fact that these children are still only two years old and one year of age; they are still very young; they have been together throughout and they appear to be an emotional support for each other. Justice Williams said at paragraph 83 in the K.M.S. and C.D.S. decision - I’m not going to quote it, but I will make reference to it, it’s paragraph 83. In my view, looking at all of the circumstances and what is in the best interests of J., it is my view that the risk to J. emotionally and physically of splitting him from his sibling and returning him to the care of his parents outweigh any benefits of returning him to his parents under the present circumstances. The possible long-term risk of eventual separation is out-weighed by the benefit of the Minister being able to pursue its plan for adoption. The court doesn’t have a crystal ball, but these two children are very young so there is a greater chance of adoption together at this point and the court is not in a position to experiment with the fact that it might work out with J. returning to his parents’ care. That prospect is also tempered by the fact that the birth of another child is imminent and what impact that would have.
[63] I am satisfied that there continues to be a risk of harm for J., even though he was not injured while in the care of his parents. He has some challenges and there will be ongoing challenges in parenting J. as he gets older and can’t be as easily contained as he was during the first 13 months of his life in the care of his parents. There are some ongoing issues of behaviour, aggression and anger that will require some concerted, patient parenting and the ongoing instability of the parent’s relationship will impact on his emotional well-being.
[64] Further, the court is in a position where there is really no time left for the gradual return of J. to his parents under supervision because the deadline is November the 10th, 2009. I did consider that I could possibly take into account the fact that there will be some ongoing agency involvement upon the birth of the third child and thus a potentially watchful eye which could afford some protection. The burden that I have to discharge in this situation is not that this event would help minimize the risk. The court needs to be content that the child could actually return to the care of these parents and be fine without any support whatsoever.
[65] The decision I am making therefore is premised on the understanding that the agency will move towards the adoption of both siblings together. This is a situation where this is a couple who may be able to cope with one child; certainly coping with two is problematic; and most certainly the ability to cope with three would be impossible based on the evidence before me. Therefore, I am satisfied that it is in the best interests of J. for him to be placed in the permanent care of the agency along with his brother N. with a plan for adoption of the siblings together. And I will make that order.
[66] Access in this case is another issue. Because of the scheduling issues with N. with all of the scheduling demands that he currently has, it would be my view that there would be a gradual reduction of access as the agency moves towards adoption. So I will not make a provision for access in the order but it is anticipated and hoped that access would continue until the children are placed for adoption.
[67] I did consider in looking at the best interests of the child, the provisions of s. 3 of the Children and Family Services Act and the importance of the significant physical needs of N., the emotional needs of J. and the need for the intensive care that is required to meet the needs of both of those children, as well their level of development and that the merits of the plan proposed by the agency, including the plan for adoption compared with the merits of the child remaining with the parents under the present circumstances. That the plan of care of the agency is more in the best interests of each of these children individually than the plan of the parents, and the importance of maintaining the sibling relationship.
[68] I have struggled with this decision, and I have very carefully weighed all of the evidence in coming to this conclusion and I am satisfied that the best interests of the children require this very difficult decision today.
J.