IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Nova Scotia (Community Services) v. J. E.,
2010 NSSC 422
Date: 20101112
Docket: SFHCFSA 049202
Registry: Halifax
Between:
Nova Scotia (Community Services)
Petitioner
and
J. E., M. A. and S. A.
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: Justice Lawrence I. O’Neil
Heard: *September 29, 30, 2008
*October 1, 2, 3, 2008
June 14, 15, 16, 17, 18, 23, 2010
July 6, 7, 23, 24, 28, 2010 in Halifax, Nova Scotia
*evidence admitted pursuant to s.96 of the Children and Family Services Act, S.N.S. 1990, c.5
Oral Decision: August 20, 2010
Counsel: Cindy Cormier for the Minister
Tanya R. Jones, for the Respondent, J. A.
Lola Gilmer, for the Respondent, M. A.
S. A., Self Represented
By the Court: (Orally)
Index
Introduction ............................................................................................... para. 1
Legal principles
- outside date for conclusion of proceedings......................................... para. 7
- identifiable risk and burden of proof.................................................. para. 8
- options for this disposition................................................................ para. 9
- criteria to be applied....................................................................... para. 11
Minister’s Involvement - A Chronology...................................................... para. 13
Profile of Children..................................................................................... para. 20
- C. E. (D. O. B. February *, 2000)
- J. A. (D. O. B. May *, 2004)
The Minister’s Concerns ........................................................................... para. 24
The Minister’s Pleadings..................... - Exhibit 1: October 17, 2006 - June 22, 2007 para. 28
- Exhibit 2: September 19, 2007 - December 5, 2007......................... para. 34
- Exhibit 3: January 10, 2008 - May 23, 2008.................................... para. 37
- Exhibit 22 continued: June 2009 - March 31, 2010........................... para. 44
2008 & 2010 testimony of access facilitators, family skills workers and education personnel para. 54
Educators’ Evidence 2010 ........................................................................ para. 73
Profile of J. E. .......................................................................................... para. 83
DVD record of access visits - 2010 ........................................................... para. 93
Findings ................................................................................................ para. 102
-cocaine use................................................................................... para. 113
-stability of residence...................................................................... para. 116
-structured routine.......................................................................... para. 117
-abusive relationship....................................................................... para. 118
-marijuana use............................................................................... para. 120
-J.A.’s diagnosis and J. E.’s parenting ............................................. para. 122
S.22(2)(a) and (b) - risk of physical harm,
failure to supervise and protect........................................................ para. 134
S.22(f) and (g) - risk of emotional harm..................................................... para. 135
S.22(j) and (ja) - risk of physical harm caused by serious neglect................. para. 140
Best Interests Criteria ............................................................................. para. 143
Conclusion ........................................................................................... para. 149
- access......................................................................................... para. 153
- primary care................................................................................ para. 165
Introduction
[1] The Respondent, J. E. (D.O.B. June *, 1981) has two children C. E., 10 years of age and J. A. , 6 years of age. M. A. is the father of the younger child and S. A. is that child’s paternal grandmother, i.e. M. A.’s mother.
[2] This matter was first before the court on October 24, 2006 for an interim hearing under the Children and Family Services Act, S.N.S. 1990, c.5, hereinafter, also referred to as the “CFSA” or as “the Act”. As a result of that appearance a supervision order was put in place. The children remained with the Respondent, J. E. subject to the supervision of the Minister of Community Services, also referred to as “the Minister”. Since then, the children have been in the temporary care of the Minister of Community Services and subject to additional supervision orders when the children remained in the care of the Respondent, J. E.
[3] The proceedings have gone on for more than 3 ½ years because of so‑called rollovers that effectively extended the time lines for completing the proceedings. On two occasions, the maternal grandmother put forward a plan to assume care of the children but subsequently abandoned the plans.
[4] The Minister of Community Services is now asking the court to order that the child J. A., born May *, 2004, be placed in the permanent care and custody of the Minister of Community Services. The proceeding involving the older child C. E. expired on April *, 2010. C. E. is not a subject of this or any other child protection proceeding. She remains in her mother's care.
[5] At the commencement of this hearing on June 14, 2010, the paternal grandmother was putting forward a plan to care for the children pursuant to the Maintenance and Custody Act, R.S.N.S. 1989, c.160, hereinafter also referred to as the “MCA”. The parties agreed that the proceeding under the Maintenance and Custody Act, would be consolidated with this proceeding. However, in the course of the hearing, the court was advised that the paternal grandmother was withdrawing her “MCA” application for primary care of the children, but nevertheless wished to maintain her request for time with the children over the summer and at other times during the year. The court interprets the request of the paternal grandmother as a modification of her application under the Maintenance and Custody Act, not a withdrawal of her application in its entirety. The court therefore views itself as having jurisdiction to make an order under the Maintenance and Custody Act should it deem such an order in the child's best interests.
[6] Evidence in this matter was heard in June and July 2010 and earlier evidence taken in September and October 2008 forms part of the record of this proceeding, as provided by s.96 of the “CFSA”.
Legal principles
‑ outside date for conclusion of proceedings
[7] The Children and Family Services Act provides that proceedings involving children must be completed within identifiable time frames. These time frames vary, reflecting the age of the child. As has already been noted the proceedings involving J. A. are at the outside time limit. J. A. is now six years old. This proceeding commenced on October 17, 2006 (Exhibit 1); by virtue of section 45 it was to be completed within 18 months but two rollovers resulted in new proceedings and therefore, new outside dates. Given that this proceeding commenced before the expiry of the time limit, the time frame for completion was extended by the court on the basis of an assessment of the best interests of the child.
‑identifiable risk and burden of proof
[8] The Minister must establish on a balance of probability that the child, J. A. is in need of protective services because of a substantial risk to that child; the specific risks being identified are described by paragraphs b., g., and ja of section 22 of the Children and Family Services Act. Notwithstanding, the stated grounds upon which the Minister relies for a finding that the child is in need of protective services, it may base its case on any other risk outlined in section 22 should there be evidence to support the same.
‑options for this disposition
[9] Section 42 of the “CFSA” outlines the orders the court may make following a disposition hearing. However, at the conclusion of a final disposition hearing, at the outside time limit, the court has only two options. The court may dismiss the Minister's case or the court may order that the child be placed in the permanent care and custody of the Minister. The court does not have jurisdiction, after a final disposition hearing, to craft an outcome, that would require the Minister to provide services. Such an order would require an extension of the statutory time limit and that is not possible on these facts. The most that the court can order is that the Respondents have access to the child following the permanent care and custody order, as provided by section 46 of the Act.
[10] The child will be placed in the permanent care and custody of the Minister or the child will be returned to the care of J. E. No other plans for the primary care of J. A. are before the court. The court does have jurisdiction to place conditions on the primary care of J. E., given that it also has jurisdiction under the Maintenance and Custody Act by virtue of the application of the paternal grandmother.
‑ criteria to be applied
[11] Throughout its deliberations the court must have as its paramount consideration the best interests of the child. This directive is contained in section 2(2) of the Children and Family Services Act. Section 2 (1) identifies the purposes of the Act to be the protection of children from harm; the promotion of the integrity of the family and assuring the best interests of children.
[12] Section 3(2) gives a list of circumstances that assist in determining what the best interests of the child are. The text of this sub section is reproduced at para 106 following. Section 3(2) must be read with s. 22 (2) of the CFSA, reproduced in part at paragraph 104.
Minister’s Involvement - A Chronology
[13] The Department of Community Services first became involved with J. E. when the child C. E. was only six weeks old; in 2000. At that time, J. E. was a resident of *, having been evicted from her mother's home.
[14] In August of 2003, the Department was once again involved in J. E.’s life. At that time, it was alleged that J. E. was being abused and was smoking marijuana on a daily basis.
[15] In January 2004, her file was referred to long‑term services. J. E. subsequently maintained a residence, obtained day care and she developed some supports. She ended her contact with M. A. Her file was therefore closed in July 2004.
[16] The Agency once again became involved on June 16, 2006. A referral reported that she was using marijuana, using vulgar and aggressive language with the children and failing to supervise them. Her home was also described as dirty, cluttered and hazardous. J. E. was viewed as having poor coping skills and a lack of regard for the interests of the children. The file was once again closed on August 11, 2006 because some progress in addressing the Minister’s concerns had been made.
[17] In September 2006, J. E. was identified as being involved in an act of violence at her apartment building and as having been the object of threats from a boyfriend. In addition, the children were found unsupervised and J. E. was apparently incapacitated. When J. E.’s mother attempted to assist, J. E. is described as having become angry and aggressive and assaulted her mother. It was within this context that she was determined to be using crack cocaine with her boyfriend. The circumstances caused the Minister to make an application to have the children declared in need of protective services. This was the beginning of the current proceeding.
[18] On October 24, 2006 after an interim hearing, a supervision order was put in place. The children were to remain in the care of J. E. subject to the supervision of the Agency. Mr. T.C. was to have no contact with the children. For the past three and one half years or more, the Minister has been playing a management role in the life of J. E. and her family.
[19] The chronology of court interventions is as follows:
October 17, 2006: protection application filed
October 24, 2006: supervision order put in place after interim hearing
November 9, 2006: interim hearing completed; supervision order continued
December 12, 2006 : variation of the interim order; supervision order continued
January 8, 2007 : children found to be in need of protection, protection hearing completed and supervision order continued;
February 28, 2007 : application to vary the supervision order, children placed in the temporary care of the Minister
March 7 , 2007 : M. A. made a party to the proceedings, temporary care order continued
April 4, 2007 : disposition hearing completed; children ordered to remain in the care of the Minister
June 29, September 26 and December 5, 2007 : disposition order reviewed, children to remain in the temporary care of the Minister of Community Service
January 17, 2008 : Minister presents its plan for permanent care of the children; the court is advised the maternal grandmother wished to present a plan for the children; the care of the children continued with the Minister
February 28, 2008 : review hearing, children continued in the temporary care of the Minister
March 20, 2008 : "rollover" of proceeding; existing proceeding terminated; new proceeding commenced so that the plan of the maternal grandmother could be assessed; temporary care of the children continued
May 26, 2008 : court advised that the maternal grandmother was no longer putting forward a plan, temporary care of the children continued
May 29, 2008 : trial adjourned at the request of the Respondents
July 8, 2008 : settlement conference held; trial dates set for late September and early October 2008
September 4, 2008 : pretrial held
September 29, 30; October 1 and 2, 2008: trial proceeded but discontinued; settlement reached that would once again have the maternal grandmother assume care of the children, temporary care of the children continued
November 24, 2008 : review of temporary care order resulted in the children being placed with the maternal grandmother subject to a supervision order
March 3, 2009 : review of supervision order, maternal grandmother once again advises that she cannot continue to care for the children
March 9, 2009 : pretrial, M. A. advises that he would like to put forward a plan for the care of the children
March 13, 2009 : further pretrial, children remained in the care of the maternal grandmother subject to a supervision order
March 18, 2009 : children once again placed in the temporary care of the Minister
March 19, 2009 : time lines extended, outside date for completion of the final disposition hearing was March 20, 2009
April 14, 2009 : pretrial, court alerted to settlement
April 28, 2009 : rollover effected to extend the time lines, Minister now plans to return the children to J. E. subject to a supervision order
May 27, 2009 : review of temporary care order, plan for return of the children outlined
July 15, 2009 : review of order, supervision order continued, children remained in the care of J. E.
October 13, 2009, December 4, 2009 and February 22, 2010 supervision order reviewed and continued, children remained in the care of J. E.
March 31, 2010 child J. A. taken into care
April 3, 2010 order pertaining to the child C. E. expires; C. E. remains in the sole care of J. E.
April 8, 2010 time lines extended for completion of final disposition proceedings, court advised that the Minister is now applying for permanent care and custody of J. A.
Profile of Children
‑ C. E. (D.O.B. February *, 2000)
‑ J. A. (D.O.B. May *, 2004)
[20] The children were taken into care in February 2007. The parental capacity assessment dated November 19, 2007, focussed on the parents but also referenced the circumstances of the children at that time. Wendy Green, a clinical social worker and Lise Godbout, a registered psychologist described the children's circumstances at the time of their being taken into care as follows (at page 7 and 46, Exhibit 4 Tab 6):
*******
Since the children's placement in care, J. A.’s teeth were noted to be in very poor condition, with a referral required to a pediatric dentist at the IWK health Centre. His behaviour has been among the most challenging behaviour noted by his experienced foster parent. Speech and language delays are of concern, with attention being brought to this area by the foster mother and by the family skills worker working with the parents. Although the [*] Daycare did not report any outstanding behavioural concerns prior to the apprehension, continued reports of J. A.’s soiling bedrooms with faeces have been noted. He struggles with time-outs and can have very powerful temper tantrums. He required constant supervision. C. E., for her part, has settled well into the school, though can be a picky eater. C. E. will overeat the food she does like and continued to soak her nighttime pull-ups.
********
C. E. and J. A.’s foster mother reported that when the children were first in foster care, C. E. spoke for J. A. They have now developed their own interests. The foster mother described C. E. as a somewhat sensitive child who will lie when not taking responsibility for something she has done wrong. The foster mother ceased C. E. from wearing pull-up diapers at night and she has wet her bed twice since that time. Reportedly C. E. would “scream and holler all night” for the first three months in foster care. On one occasion, C. E. reportedly said to her foster mother she had a dream that she, the foster mother, had been killed.
C. E. began grade 2 in the English program this year, following grade 2 and primary in French immersion. She was keen to practice her English regularly. C. E. has reportedly made unexpected comments about “people who must be going in the room to have sex”. C. E. will often talk about wanting to look pretty for her mother.
J. A.’s first 3 months in foster care were marked with behaviour disruption and defiance. He reportedly smeared faeces on his bed and in his bedroom, he would wake 4 to 5 times at night. He would also slam his foot into the wall. J. A. is now completely toilet trained and wakes much less often during the night. He attends preschool and does well with independent play and socialization. The foster mother has weened him from his soothers.
[21] Exhibit 27 is a report dated March 13, 2009 following a psychological assessment of C. E. by David Cox, Psychologist. He concluded at page 12:
C. E. has a positive and adaptive temperament, which has prevented the development of significant behavioural and emotional dysfunction as a result of the disruption in her early history. The few problem behaviours she has presented are fairly typical adjustment reactions to adverse circumstances and changes in her life, and have tended to resolve themselves rather than becoming more aggravated or entrenched.
C. E. can, at times, appear needy and attention-seeking. This does not seem to be a significant problem at this point. It will be important to ensure that she experiences stability and security in her family situation; that adult caregivers are perceived as capable of enforcing routine and behavioural expectations; and that unnecessarily needy or attention-seeking behaviour is not reinforced by attention or success in getting C. E. what she wants.
The results of this assessment do not suggest the presence of fundamental learning weaknesses or disabilities which will interfere with C. E.’s longer-term academic progress. In fact, she has a number of strengths in areas which are associated with academic success, including working memory, comprehension, math concepts and problem solving, and non verbal reasoning and problem solving. There are some delays in the development of her reading skills which appear to reflect the disadvantages and instability she experienced during her early elementary school years, including her initial enrolment in French Immersion. She will benefit from continuing Resource and other supports to help advance the development of her reading skills.
[22] Exhibit 22 at tab 9 is the review application filed by the Minister on November 25, 2009. Attached to the accompanying affidavit of Ms. Jewers as Exhibits "A" and " B" are two reports of Ms. Woodin. Exhibit "A" is a treatment report dated October 7, 2009 pertaining to C. E. Ms. Woodin described C. E. as follows:
C. E. presents as a cooperative, pleasant, eager to please child. Self‑esteem is the present focus of treatment in addition to addressing past trauma, attachment injury, and re‑adjustment to returning to her mother's full‑time care. Joint sessions with her mother may be further required to continue to give C. E. permission to express her experience freely without concern or worry that she will be removed from her mother if the past events are shared with a “reporter” for the department of community services.
I recommend that C. E. continue to attend therapy weekly during the next contract period, as she has not been able to attend on a consistent basis to date and thus rapport building is not as secure as it could be. This trust is in its infancy to complete trauma work.
[23] Exhibit 33 contains further treatment reports for J. A. and C. E. prepared by Ms. Woodin and dated April 21, 2010 . Ms. Woodin testified on June 15, 2010.
The Minister's Concerns
[24] At page two of the parental capacity assessment prepared by Wendy Green and dated November 19, 2007 (Exhibit 4, Tab B), agency concerns were correctly identified as drug use, relationship issues, criminal history, child neglect and lifestyle issues.
[25] In a July 11, 2008 letter to counsel for the Respondents (Exhibit 11) the Minister restated its concerns as they related to the parenting of the Respondent, J. E. The Minister was insisting upon a realistic plan for J. E. to address her long‑standing addiction to drugs and a plan for her to maintain a drug‑free lifestyle. In its letter, the Minister referenced the recommendations from the parental capacity assessment dated November 2007. It recommended that J. E. enter a detoxification program; that J. E. seek clinical treatment for childhood neglect and trauma and that she undergo a full psychological assessment. The Minister also expressed concern with respect to J. E.'s approach to parenting, her choice of intimate partners, her housing situation and her general lack of follow through with services.
[26] In its pre‑hearing brief, the Minister repeated these concerns. The following two paragraphs of the Minister's submission at page 2, read as follows:
It is the position of the Minister of Community Services that J. E. has not addressed any of the long‑standing agency concerns. These concerns would include J. E.'s long‑standing depressive mood and/or anxiety, her approach to parenting, her choice of intimate partners, her apparent reliance on deception and manipulation and control and avoidance, and her long‑standing addiction to drugs.
Specifically, it is the position of the agency that J. E. has been either unwilling and/or unable to provide adequately for J. A.'s needs due to a possible combination of ongoing mental health issues, personality patterns, lifestyle choices and/or addiction issues. It is the position of the agency that J. E. continues to rely on her long‑standing coping mechanism and does not possess sufficient self awareness to work with professionals in an open and supportive manner.
[27] The affidavits forming part of these pleadings also identify the concerns of the Minister.
The Minister's Pleadings are chronologically
organized in four bound volumes :
- Exhibit 1 October 17, 2006 ‑ June 22, 2007;
- Exhibit 2 September 19, 2007 ‑ December 5, 2007;
- Exhibit 3 January 10, 2008 ‑ May 23, 2008 and
- Exhibit 22 October 3, 2008 ‑ June 1, 2010
Exhibit 1: October 17, 2006 ‑ June 22, 2007
[28] In its protection application dated October 17, 2006 the Minister sought an order providing that T. C. would not reside with or have contact with C. E. or J. A.; that J. E. be referred for individual counselling and therapy; that J. E. also submit to random urine drug testing and finally, that she be referred for completion of a substance abuse assessment. The Minister's application was supported by an affidavit of Brian MacAuley, a long‑term social worker employed by the district office of the Department of Community Services. At that time, the court was provided with complaints received by J. E.’s landlord and drug testing results. (The case recording reports provided, describe the Agency's involvement with J. E. beginning March 29, 2000, up to and including October 13, 2006.)
[29] In support of the Minister’s application to vary which was to be heard December 12, 2006, Ms. Jewers filed an affidavit sworn to December 4, 2006, on behalf of the Minister. Her affidavit described J. E.’s home as being in disarray; the presence of Mr. T. C.'s brother and her affidavit described evidence of drug usage. On December 12, 2006 the interim order was varied.
[30] The matter came before the court on January 8, 2007 for a protection hearing. J. E. consented to a finding that the children were in need of protective services. The children remained with her, subject to a supervision order.
[31] The children were taken into care on February 21, 2007. The matter was again before the court on February 28, 2007. At that time, the supervision order was varied to provide for the children to be placed in the temporary care and custody of the Minister. The variation application and affidavit supporting this change are dated February 26, 2007. The affidavit of Ms. Jewers describes the Agency’s concerns as relating to drug use in the home, a lack of appropriate supervision of the children, the lack of cooperation on the part of J. E. with random urine drug testing and the fact that at least one toxicology report recorded a positive finding for cocaine and cannabis. In addition, the filings alleged that J. E. was maintaining a relationship with M. A., the father of J. A. M. A. has a record for violent offenses.
[32] On March 1, 2007, the Minister filed its plan for the children's care; in anticipation of the disposition hearing scheduled for March 7, 2007. The Minister repeated its concerns for the children as outlined above. On April 4, 2007, the disposition hearing was completed and the children remained in the care of the Minister. Subsequent reviews of this disposition occurred on June 29, 2007; September 26, 2007 and December 5, 2007. At the December 5, 2007 appearance, the court was advised that the Agency plan now called for permanent care and custody of the children.
[33] The Agency had changed its position from that put forward in the various affidavits filed since April 2007. In her affidavit sworn June 22, 2007 Ms. Jewers referenced positive tests for cocaine in March and April 2007; housing concerns and misbehaviour by J. A. while in the care of the foster family. Exhibit 2 contains the pleadings for the September and November 2007 appearances.
Exhibit 2: September 19, 2007 ‑ December 5, 2007
[34] In her affidavit sworn to September 19, 2007, Ms. Jewers reported that J. E. was having difficulty attending access visits; that J. E. was not regularly attending, to provide samples for random urinalysis and that toxicology reports tested positive for marijuana use.
[35] In her affidavit sworn November 27, 2007 Ms. Jewers reviewed the recommendation of the parental capacity assessment completed earlier that month by Ms. Green and Ms. Godbout. Ms. Jewers observed that J. E. was being directed to set appropriate boundaries with her children and to learn new ways to address temper tantrums. Concerns were expressed about J. E.’s parenting style, as observed in the course of her access visits. In addition, J. E. is described as resisting a requirement to travel to * to see the children because it was too difficult for her. Ms. Jewers also reports that J. E. states she has no relationship with M. A.
[36] The recommendations from the parental capacity assessment are reproduced in the affidavit of Ms. Jewers. Also attached to this affidavit are two reports from Ms. Woodin, dated September 28, 2007 and November 26, 2007, pertaining to the treatment of J. E.. The last session with J. E. prior to the these reports was June 5, 2007.
Exhibit 3: January 10, 2008 ‑ May 23, 2008
[37] In her affidavit sworn January 10, 2008 (Tab 9, Exhibit 3), Ms. Jewers relates that during one access visit, J. E. spent approximately 10 minutes on the telephone attempting to resolve a personal matter. J. E. was also described as non‑responsive to C. E. when C. E. sought her help.
[38] In her affidavit sworn to February 19, 2008 (Tab 9, Exhibit 10), Ms. Jewers reviewed the circumstances that caused the Agency to assess the suitability of the maternal grandmother as a possible placement for the children. Ms. Jewers reviewed circumstances that caused the Agency to present a plan on January 17, 2008 for the children's permanent care and custody.
[39] The plan itself is dated January 10, 2008. The Agency's rationale for seeking permanent care and custody of the children at that time is summarized on pages four and five of the Agency plan (Exhibit 3, Tab 11). It reads:
J. E. had not been cooperative with the agency and acknowledged no child welfare concerns. Up until the time that the children came in to care, J. E. appeared to take the Agency’s concerns very lightly. The Agency's previous Plan of Care, dated February 27, 2007 stated that “before the children, C. E. and J. A., can be returned to the care of their mother, J. E. must abstain for an extended period of time from the use of cocaine and cannabis, she must participate in services which are ordered by the court, and she must gain insight into the child protection issues which caused her children to come into Agency care”.
It has been almost a year since the children, C. E. and J. A. came into Agency care, and J. E. has made little progress in addressing the child protection concerns. J. E. exhibits no insight into the child welfare issues which caused her children to come into care. She continues to abuse illegal drugs and even with documentation from the toxicology lab indicating positive results, she continues to deny that she is using drugs. J. E. does not appear to have taken any steps towards addressing her addiction issues.
A parental capacity assessment was completed on November 19, 2007, in regard to J. E., M. A., and the children, C. E. and J. A. Numerous recommendations were made, however, in regard to long‑term planning for the children the assessor stated:
That J. E. enter a detoxification program to properly detoxify from whatever drugs may be in her system. Upon completion of this program, J. E. must enter the residential program to address the lifestyle and psycho social factors that are maintaining the addictive behaviour. It is considered imperative that this individual’s psychological profile be brought to the attention of the addiction professionals who will be assisting. The excuses must stop. This will challenge J. E.’s capacity for honesty and straightforwardness. Her desire to deceive, manipulate and control will be taxing for her to manage. If this recommendation is not seriously pursued and progress achieved in a timely manner (i.e. entrance into detox be pursued immediately upon receipt of this assessment), it is strongly recommended that access with the children be gradually decreased and a plan be made for permanent wardship of both children.
These recommendations were discussed with J. E. and brought to the attention of the court on December 5, 2007. J. E. was made aware that if she did not take immediate steps to address her addiction issues, that the Agency would be seeking an order for Permanent Care and Custody. To date, J. E. continues to deny that she has an addiction issue.
[40] This rationale for not leaving the children in the care of J. E. is repeated in the Agency plan dated November 14, 2008. The focus of the November 17, 2008 review application is a plan to have the children placed in the care of the maternal grandmother; subject to supervision of the Minister.
[41] In her affidavit, dated February 24, 2009 (Tab 2, Exhibit 22), Ms. Jewers reviewed the progress being made in preparing for the transfer of the children into the care of the maternal grandmother.
[42] In her April 16, 2009 affidavit (Tab 4, Exhibit 22), Ms. Jewers reports that the maternal grandmother had withdrawn her plan to care for the children. On March 16, 2009 the Agency made a decision to place the children in a foster home and to proceed to trial and to seek permanent care and custody of the children. Ms. Jewers also arrived at court with a letter from the day detox services confirming that J. E. had enrolled in a detoxification program. She also provided the court with a psychological report of David Cox, dealing with C. E.
[43] In the review application dated May 20, 2009, the Minister advised the court that the Minister was seeking to return the children to J. E., subject to the supervision of the Agency. This was a dramatic change in position for the Minister. A revised Agency plan that accompanied the review application is dated May 12, 2009 (Exhibit 22, Tab 6). The rationale for the Minister’s change in position is given at page 7:
The children, C. E. and J. A., came into care again on March 17, 2009 and were placed together in a registered foster home. The Agency's plan at that time was to proceed with Permanent Care and Custody as the Agency had no information that J. E.'s circumstances had changed.
After the children came into care in March, it appears that J. E. took steps to address her addiction to marijuana and improve her circumstances. She entered a 21 day detox program and appeared to be clean for marijuana. J. E. submitted a parenting plan requesting that the children be returned to her care. She agreed to remain involved with the Agency to participate in whatever services the Agency deemed appropriate.
On April 21, 2009, the Agency held a Risk Management Conference to determine if it was still appropriate to proceed with a plan for Permanent Care and Custody. The history of the Agency's involvement was reviewed and it was noted that significant progress had been made since the children first came into care over two years ago. J. E. appears to have quit using cocaine in January 2008. She has a stable residence and is not currently involved in an unhealthy relationship. The Agency continued to have significant concern about J. E.’s chronic marijuana abuse, however, it appears at this time that J. E. has taken steps to address this issue. Based on this progress, the Agency made the decision to return the children to their mother’s care under supervision of the Agency. J. E. is required to participate in random urinalysis testing, counselling for herself and the children, Family Skills Intervention, and to be available for frequent home visits by Agency representatives who will be attending the home to assess the safety of the children and to provide guidance to J. E..
J. A. returned to his mother's care for an extended access visit on May 9, 2009. C. E. will transition over the month of May, with a final return date of May 30, 2009.
Exhibit 22 continued: June 2009 to March 31, 2010
[44] Following the return of the children to J. E. in June 2009, the supervision order was reviewed July 8, 2009; October 6, 2009; November 25th 2009 and February 15, 2010. The children were once again taken into care on March 31, 2010 . The events that led to the children once again being taken into care, are described in the April 7, 2010 review application (Tab 11, Exhibit 22) and accompanying Agency Plan. The plan, however, called for only J. A. to be placed in the permanent care and custody of the Minister of Community Services. The proceeding involving C. E. was allowed to expire on April 3, 2010.
[45] Concern was raised in each of the four reviews that preceded taking the children on March 31, 2010. The concerns were: (1) the need for J. E. to not consume drugs; (2) the need for J. E. to obtain counselling for stress trauma; (3) the need for J. E. to obtain family skills training for J. A.'s behaviour and the need to establish boundaries in the home for both children and (4) the need for both children to obtain counselling.
[46] On October 6, 2009 the court was advised that 5 of J. E.’s 14 drug tests were positive; that there were scheduling difficulties pertaining to J. E.’s counsellor, Ms. Woodin; that the family skills worker had expressed some concern about the children being left unsupervised, that “grounding” was used too frequently as a discipline measure and that J. E. complained of decreased energy.
[47] On November 25, 2009 similar concerns were reported to the court.
[48] It is worth noting that in her oral evidence, the social worker, Ms. Jewers, testified that the Minister's representatives were satisfied with the progress J. E. was achieving in the summer and fall of 2009. She stated:
........She was presenting better than she ever did. She was pleasant and cooperative and was presenting that she would do whatever she needed to do in order to have the children returned to her care. And so the agency decided at that time, that we would return the children to her care under a supervision order, but there were clear expectations, which were outlined at the time and it was that she would continue to remain drug free, that she would be drug tested, that she would continue to attend to addiction services, that she and the children would attend counselling with Shanda Woodin, that she would work with family skills worker Jody Billard and these expectations were all very clearly outlined at that time, and those were the conditions under which we agreed to return the children.
Q. And then there's a further supervision order granted July 15th, removing H. E. as a party to the proceeding and C. E. is now under a supervision order as, and J. A. remains under supervision. M. A. and T. remain having no contact, individual counselling, children's counselling, random urinalysis, Capital Health involvement, family support worker continues, throughout that summer, is that correct.
A. Yes.
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MS. CORMIER: . . . And then, so how does the summer go, throughout the summer. Talk to me about that period of time when?
A. Well, the first few months appeared to be going very well. At that time, the agency, myself mostly, but other agency staff as well were in the home every week, sometimes two or three times a week and things appeared to be going well. I mean there were some concerns which were addressed. I mean nothing you know, that was alarming but there were a few things that had to be addressed in regard to, you know, having the children out late at night, not necessarily putting their needs first. Running errands as opposed to going to the playground or you know, fitting the children's activities in at the end of the day rather than focussing on them and those sorts of things. But you know, over all, it appeared to be going very well. And then towards the end of the summer into the early fall, I guess, then we started getting some positive drug tests for marijuana again and that of course was concerning. And that was brought to J. E.'s attention and she at first indicated that you now, yes she did have a couple of slips, but that it was all under control, she hadn't used in weeks. But then you know, they started as time went on, trickling in again.
Q. And, so it was in or about October 6th that Shanda Woodin's involvement was reduced to every two weeks and were there concerns with respect to?
A. There had been ongoing concerns with attending appointments with Shanda Woodin and J. E. and I have had a few conversations about that and J. E. has said that Shanda's availability was an issue, which I think to a certain extent is probably true. However, J. E.'s schedule would be much more flexible than Shanda's would and this was identified as something that was important. It was part of the case plan, it was identified as a priority and J. E. was reminded over and over again that she needs to make this a priority and that she needed to make herself available for these appointments. But she didn't, it was difficult.
Q. And there was a further supervision order October 13th, with the same conditions and J. E. did miss court that day, did she not?
A. Yes.
Q. There were concerns that the agency wanted to?
A. There were specifically the positive drug tests and the missed appointments.
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Q. Ok, and then with respect to concerns that may have developed in the new year, in 2010, can you explain what concerns, if any, you had throughout January, February and March prior to the child being apprehended?
A. Yes, well back in the fall, I think it was November was the first time that it came to, or November, December, it was the first time it came to my attention that J. A. was having some significant difficulties at school. J. E. had mentioned that a behavioural specialist was becoming involved. I spoke with the school and was informed that yes, indeed there were some significant behavioural issues, that they were working on a plan, that they had a plan in place and at that time, that it was too soon to tell how it was going to work. In the new year, you know, then didn't really hear much more about it until the new year when it was towards the end of January. It became clear that J. A. was actually unmanageable at school. And also during this time, in the month of January, Jody Billard had significant difficulty engaging J. in the family skills service. J. E. was not making herself available. She was identifying that she didn't have any issues to work on. If fact, she was reporting that things were going great. That she had no concerns or complaints and that everything was going well. But at the same time, J. A. 's behaviour took a serious decline.
Q. Ok, and was there a concern specifically expressed in or about February 1, 2010 when you spoke with B. H. regarding J. A.?
A. Yes, that B. and J., the former foster parents from * have been noticing for a few months that J. A.'s behaviour was becoming more difficult. He had always been fine. There have been no issues when he went to visit in the past. He spent a lot of time down in * after he returned to his mother's care. He always looked forward to going. They looked forward to having him and there were no behavioural issues identified until around Christmas time, they started noticing some big changes in his behaviour. And in February, they were quite concerned.
[49] At the February 15, 2010 review (Tab 10, Exhibit 22), the Minister again identified its expectations of J. E. to include further urinalysis; the need for J. E. to address past issues of trauma including a pattern of entering abusive, intimate relationships with men; the need for the children to have therapy to address any attachment issues; and the need for a family skills worker to assist J. E. to manage J. A. and to consistently implement what she was being taught; the need to provide a safe, stable home for J. A. and finally, the need for J. A. to be placed in a behavioural management program as recommended by Mr. David Cox. This program would need to be implemented in the home.
[50] The February 15, 2010 review application (Tab 10, Exhibit 22) marked a significant change in reports to the Minister concerning the behaviour of J. A. In addition to concerns the Minister had, J. A.'s school was reporting an escalation of behavioural problems involving J. A. The school had been following a behavioural modification program to address J. A.'s issues since late October 2009.
[51] At the review held on April 7, 2010 (Tab 1, Exhibit 22), the Minister advised the court that it was seeking permanent care and custody of J. A. C. E.'s proceeding expired April 3, 2010 and she was to remain in the care of her mother, J. E.
[52] The plan of care before the court on April 7, 2010 (Exhibit 22, Tab 11) , beginning at page 7, stated the following:
In November 2009, it became apparent that J. E. was experiencing some behavioural problems with J. A. The school consulted a behavioural specialist and a program was introduced in the classroom. The school reported that the program was working well until about the end of January 2010.
By January 2010 , a significant decline in J. A.'s behaviour was noted by the school and by his former foster parents, who continued to maintain monthly contact. At this time family skills worker Jody Billard was also noticing a decline in J. E.'s interest in service. J. E. and the children were not attending for therapy with Shonda Woodin and this service was terminated in February.
At page 9, the plan concludes:
...When J. A. was placed with his mother in May 2009, she was made aware that J. A. needed therapy to address the issues of trauma, loss and attachment. She did not follow through with this therapy. J. E. was assigned a Family Skills Worker to work with her on issues of parenting. She did not follow the advice provided. J. A.’s behaviour is now unmanageable and J. E. is unable or unwilling to take any steps to remedy the situation. J. A. has suffered and will continue to suffer emotional harm in his mother's care.
[53] Ms. Jewers, the social worker responsible for this file, when concluding her direct evidence on June 23, 2010 was asked the following questions and responded as follows:
Q. Ms. Jewers, do you feel that at this time, having been involved with this matter personally, since November 2006, that J. E. is able to provide a supportive environment for J. A. at this time?
A. J. E. is not able to meet J. A.’s needs in any way. She is not able to, as I said, J. A. is not able to function in her care. She doesn’t recognize what this child needs in order to do well and she's not willing to take any suggestions or advice from anyone. She admits no difficulties and I think she is very limited ability to change the approach that she currently takes with J. A.
Q. What about her ability to work with others who may help J. A.?
A. I think that’s very limited as well, because J. E., she has patterns of personality that sort of preclude working cooperatively with other people because J. E. always seems to feel the need to be right. That she's the one that has the answers. She's the one, regardless of what everybody else says, she knows what to do and that's what she's going to do. And she doesn't easily take suggestions from other people and I don't believe that she's able to meet J. A.’s needs. I don't think that she will ever be able to meet J. A.'s needs.
Q. And with respect to the question I asked earlier with respect to C. E. remaining in the home?
A. Yes, and that again is a very, that’s a very difficult situation was not an easy decision for the agency to make either. . . . it comes down to what we talked about earlier about you know, what you can substantiate and what you can't. The agency has concern about C. E. in J. E.'s care. However, C. E. is a different child than J. A. Her circumstances are different. She's four years older. She has lived with J. E. longer than J. A. She’s a different type of child in that, you know, she seems to be more adaptable. She keeps, C. E. keeps things in. You never really know what is going on with C. E. You know, my own personal opinion is that things are not great for C. E., but C. E. is not going to say and it's not going to come out in an outward manner. With J. A., his feelings and his frustrations are out there for everyone to see so you know when things are not going well for you. And we can establish J. A. has suffered emotional harm. Under the Children and Family Services Act, we can, under the definition of emotional harm, I think we can substantiate that this child has suffered emotional harm, evidenced by his behaviour. We can't say that for C. E. We don't have that same evidence with C. E., C. E. appears to be managing, functioning within her environment, for now. She certainly can go about her daily business and blend in and be, you know, to all terraces like any other child her age. The school report that you know, C. E. is not even a blip on the radar. They don't have any involvement with C. E. She's a well behaved child. She doesn't cause any difficulties. With J. A., J. A. acts outwardly and he is reacting to his environment. His emotional needs are not being met and this is how expresses that. It comes out in anger and frustration, because he doesn't know what else to do.
Q. Do you have anything to add to that testimony? You have noted in your testimony that J. E. had made some improvement?
A. From the beginning, yes she has. I mean she doesn't care to be, we have no evidence that she's using crack cocaine. She’s had a fairly stable residence, I mean those were, you know, long‑standing issues which have been addressed. So she has certainly made some gains from where we were in the beginning . However, she's not made enough gains to be able to parent J. A. and provide him with the level of care that he requires.
‑ 2008 testimony and 2010 testimony of access facilitators, family skills workers and education personnel
[54] In September and October 2008 the court heard several days of evidence in a permanent care and custody hearing pertaining to C. E. and J. A. Ms. Green and Ms Godbout testified but not about the children. In the course of that hearing, a then current profile of the children was presented to the court; principally by Cheryl Osmond.
[55] Ms. Osmond was the social worker assigned to address the children's needs while they were in foster care. She is described as a “children in care” social worker. The recordings of the Department of Community Services that are most relevant to the evidence of Ms. Osmond are contained at Tabs 2 and 3 of Exhibit 5.
[56] She testified that when the children came into care they were quite needy. She stated (Exhibit 21, p.534):
J. A., in particular, had a lot of significant behaviour issues in terms of there was a lot of screeching, there was a lot of concerns around food, around over eating, and that kind of stuff. J. A. did a lot of kicking and screaming, and his speech was considerably delayed, and he would become quite aggressive and quite difficult to manage, I guess.
[57] She also testified that J. A. was referred to the Nova Scotia Hearing and Speech Clinic; that he was assessed and found to have articulation phonological delays. He was found to not have speech and/or a hearing disability. He was also found to need dental work. C. E. was provided with extra resources through the school system and referred for a psycho educational assessment and referred for counselling.
[58] The court also heard from a number of access facilitators and family skills workers in the course of the 2008 hearing. The court heard from Jody Billard and Paula Nussey who are both family skills workers and were assigned to assist J. E. In addition, the court heard from two access facilitators, Heather Ingersoll and Maureen Sullivan.
[59] Ms. Ingersoll facilitated access between the biological parents and their children, when the children were in care. She described her contact with J. E. as once a week beginning in February 2007 and continuing until September 2008. Her reports are contained in Exhibit 7 at Tab 4 and Exhibit 16. She testified that the first six months he threw temper tantrums during transport. He kicked, he screamed, he threw shoes, those kinds of things. And she described changes in the behaviour as follows (at p. 194‑195 of Exhibit 21):
.... when I first met C. E. and J. A., J. A. in particular, I mean, he was two, I believe. I mean, he had no language skills, didn't know his colours. He really communicated through screaming. Now he can talk. He goes to preschool. He gets along socially with other children. He knows all his colours, and can speak full sentences. He can play pretend, those kind of things.
Q. So he's progressed?
A. He's progressed.
A. Yes. And C. E. has always been quite social with me anyway. And you know, I just notice that she's reading... she does some reading programs after school. She seems to enjoy those kind of things. And I think.... she was quite quiet usually on the way into town most of the time. Now she sings the entire day.
[60] Ms. Maureen Sullivan, a case aide, also testified. In addition to transporting the children for access with J. E. she also supervised access visits between J. E. and the children. She performed this role concurrently with Ms. Ingersoll. She described J. A.'s behaviour as quite strange in the beginning. She said he didn't care to listen, he didn't want to follow through on any discipline with mom and he had a mind of his own. She testified that he improved over six months and the change was significant.
[61] Ms. Jody Billard testified on September 30, 2008. She testified that she was a family skills worker also known as a family support worker assigned to deal with J. E.. She testified that she has a diploma in child development, a diploma in special education and a degree from Mount St. Vincent University in Child and Youth studies. As of September 30th, 2008 she was also enrolled at the School of Social Work. Her work with J. E. began in early 2007 but was interrupted by her maternity leave from June 2007 to June 2008.
[62] She reported that J. A. appeared to be delayed developmentally when she first met him and she also reported that J. E. told her that J. A. demonstrated aggressive behaviour. Following her return from maternity leave and prior to her evidence, Ms. Billard observed two access visits between J. E. and the children.
[63] Jody Billard testified again on June 17, 2010. She recalled the initial concerns for J. E. were her need for housing; her need for a detox program and J. A.’s misbehaviour. In the course of her evidence she identified a number of parenting issues.
[64] In the fall of 2008 and again in June 2010, Ms. Billard noted concerns about J. E.'s marijuana use.
[65] She testified that J. E. needed to move from a brick wall parenting style to what is known as a backbone parenting style. In her opinion, J. E. is often rigid; reacts harshly; employs grounding too frequently and often parents through guilt. She described J. E. as frequently painting J. A. in a negative light and employing negative labelling. She testified that in her opinion, J. E. has difficulty applying information she gives from their sessions. She observed that J. E. often has low energy and poor motivation.
[66] Later in her evidence however, she testified that J. E. means well, she wants to be a good parent, and she does put effort into things. She described some scheduling difficulties with J. E. but concluded that J. E. was usually available for her weekly visits.
[67] Ms. Billard reviewed discussions she had with J. E. concerning the use of restraints when J. A. was having temper tantrums. She testified that J. E. was often contradictory. She would say that things were fine with the children and then often complain about specific instances when they were not.
[68] Ms. Billard testified that:
A. .... J. A., in the times I have been around him in the office and in his home , he has not displayed any negative behaviours whatsoever.
[69] It is also significant that she also stated the following; in the context of a summary of the March 10, 2010 meeting at the school to discuss J. A.'s circumstances:
A. I just found it very concerning that this little boy had such difficulty in school and they're reporting , the school's reporting of J. A.'s behaviour was so, so severe; it was just very alarming and, you know, they were very focussed and come from the medical model where there has to be something medically wrong. That came loud and clear in that meeting. But they failed to look at J. A.'s environment and was that a response to his environment. I don't know but that was just the other piece to it as well.
[70] In my view, it is significant that Ms. Billard viewed changes in J. A.’s behaviour at school in early 2010; as consistent with concerns she had with J. E. at that time. Clearly Ms. Billard was prepared to conclude that the problems at school were attributable to the home environment. But, as has been observed, the school was interested in exploring possible medical explanations for J. A.'s behaviour.
[71] Finally Ms. Billard's notes of March 30, 2010 itemize the concerns she had for the parenting of J. E.
[72] Ms. Paula Nussey is also a family support worker and worked with J. E. beginning in August of 2007, after Ms. Billard went on maternity leave. Her evidence is based on case notes, exhibited at Tab 1 of Exhibit 5. She ended her involvement with this family in January 2008.
Educators’ Evidence: 2010
[73] Ms. J.D. testified on June 14, 2010. She was J. A.’s primary grade teacher beginning in September 2009. She continued in that role until March 2010, when J. A. was taken into the temporary care of the Minister and transferred to the * school, near the home of his foster parents.
[74] Ms. D. testified that she worked with children for 15 years in the school setting. She testified that her first impression of J. A. was that he was articulate, and fit in as a regular primary student who gave rise to no concerns in the classroom setting. She testified that J. E. first made her aware that J. A. could be aggressive and that he was seeing a counsellor. Ms. D. first observed his misbehaviour after a few weeks. J. A. could be loud and his behaviour began to escalate and this gave rise to her concern. J. A.’s transition from the school to his mother's care at the end of the day was identified as a troublesome point. At the end of October 2009, Ms. D. met with other professionals in the school system and discussed J. A.’s behaviour. There was particular concern about his aggressive behaviour and Ms. D. approached the principal, Mr. M.l. To lessen J. A.’s stress over the lunch hour, J. A. was transferred to the Learning Center lunchroom across the hall, where there existed a smaller ratio of students to teachers.
[75] Finally, Mora McKinnon, a school psychologist was asked to develop a plan for J. A. Ms. McKinnon had at her disposal, additional support services including an educational assistant, namely K.S.. A program was developed. K.S. began attending at J. A.’s classroom and she essentially sat with J. A. during school days. Ms. D. explained that a system of reinforcement was put in place so that J. A.’s good behaviour would be reinforced. Ms. D. testified that things began “falling into place” in early 2010 and there may have been one event per day involving J. A. However, in February, J. A.’s behaviour once again began to escalate. Ms. D. testified that J. E.'s level of concern was appropriate. Towards the end of February and early March, 2010, J. A.’s transition away from school became a trigger point for misbehaviour and changes were made to how the transition was to occur. Ms. D. described J. A.’s behaviour as boldly aggressive, his language as often profane and she also stated that his behaviour would accelerate quickly. She also described J. A. as bright, precocious and a lovely child.
[76] On cross‑examination, Ms. D. agreed that J. E. requested a meeting with the school staff in early March 2010, to discuss J. A.’s behaviour. In response to questions from the court, Ms. D. indicated that she had no experience implementing the plan developed by Mora McKinnon.
[77] Mora McKinnon also testified on June 14, 2010. She testified that the program she put in place for J. A. was designed to increase appropriate behaviour and to reward that behaviour. She established the program following an October 27, 2009 meeting at the school. A program for J. A. was put in place, effective November 24, 2009. She confirmed that the program was not explained to J. E. until March 10, 2010. She confirmed that in February 2010 she saw J. A.’s behaviour was escalating and another strategy was needed. In February 2010, she decided to do a behavioural rating scale, a so‑called “Connors scale” which is an assessment made available typically to a family doctor. It is the family doctor who then decides on what follow‑up is necessary. Ms. McKinnon explained that her additional investigation was with a view to identifying explanations for why J. A.’s behaviour was escalating.
[78] The court next heard from Mr. D.M.; school principal. He testified that he was familiar with J. E. and her family because C. E. had been attending the school. He confirmed that J. A.’s behaviour first came to his attention in the fall of 2009 when it was raised with him by Ms. D..
[79] Mr. M. described J. A. as being close to C. E. and that J. A. seemed to wait for his mother at the end of the day. He explained that he understood the March 2010 meeting at school was a response in part, to the concerns of J. E. She was upset that J. A.'s behaviour was not getting better. Mr. M. confirmed that there was a discussion of the need to screen J. A. for ADHD; by a medical professional.
[80] On cross‑examination, Mr. M. confirmed that the program in place at school was not designed for the home environment and that the school had no control over behaviour within the home. He testified further that J. A. was close to C. E. and it was “always endearing” when they saw each other in the hallway. He testified that when J. A. was sent to his office he would try to calm him down. He testified that he observed J. A. yelling and he would often hold him gently and that usually, after four or five minutes, he would be calm. He confirmed that there was a request that J. A. be referred to the Share Care Clinic of the IWK Hospital.
[81] As stated, Ms. K.S. was the person from the School Board Behavioural Unit assigned to sit with J. A. in the classroom. She confirmed that he would use profanity, and be aggressive and that she had restrained him. She also confirmed that J. E. would not have received training on the implementation of the behavioural plan put in place at the school.
[82] Ms. C. M. is J. A.'s teacher at his new school in *. She described a different reward system than the one used in J. A.'s former school. She described J. A. as a sweet boy. She described him as bright, wanting to do well and aware of his surroundings. She testified that he requires a great deal of attention and a lot of time. She testified that J. A. reacts quickly, and does not always understand the reaction of his classmates and therefore, can react inappropriately. She explained that once J. A. is calm and understands what is happening, he reacts well. She said that he is doing well academically, that he enjoys school and that the program she is following seems to work well for J. A. She confirmed that at the end of the day, his behaviour becomes more difficult perhaps because he is tired and more easily agitated. She described how at one lunch break he scratched an educational assistant, tried to kick her and throw his lunch bag at her. She testified that in her opinion J. A. loves going to school, that he loves structure and that he tested boundaries frequently.
Profile of J. E.
[83] J. E. was born June *, 1981. Exhibit 4 contains two reports dated May 7, 2007 and September 28, 2007 on the results of counselling of J. E. by Shonda Woodin. At Tab 6 of Exhibit 4, a parental capacity assessment of J. E., dated November 19, 2007 appears. This report was prepared by Wendy Green, a clinical social worker and Lise Godbout, a registered psychologist. Exhibit 13 is a summary of admissions made by J. E. on September 24, 2008; on the eve of a permanent care and custody hearing pertaining to her children C. E. and J. A. These documents taken together give an accurate overview of J. E.'s childhood, teenage and early adult years.
[84] J. E. became sexually active at the age of 12 or 13. Her mother had a substance‑abuse problem and entered a recovery program when J. E. was only five years old. J. E. became pregnant at the age of 14. A year later she was pregnant again. Her education ended as a consequence.
[85] Early in her life, she was in the care of a mental health professional. There are reports that she experienced symptoms of depression and this continued into her teen years, beginning at age nine. She was a victim of a same‑sex, sexual assault at seven years of age; reportedly was 15 years when raped and was again sexually assaulted at age 16.
[86] J. E. has been a regular user of marihuana since her early teen years. She began using crack cocaine in September, 2006 and says she last used cocaine on January 1, 2008. The details of her cocaine use are admitted at paragraph 22 of Exhibit 13.
[87] J. E. is described as quite gifted in non‑verbal areas (p.23 of Exhibit 4, Tab 4 - the Parental Capacity Assessment). Her general credibility is also questioned in that assessment. The authors of the assessment believe she attempts to manipulate situations and influence perceptions of her, to such an extent that this places limitations on the validity of psycho metric test measuring clinical functioning (p.25).
[88] The authors of the parental capacity report at page 26 and 27, describe J. E.’s ability to parent (as of November 2007):
J. E. has made little effort to alleviate the child protection concerns in this matter. She continues to use drugs on a regular basis. She terminated personal therapy offered to her. She does attend her visits with children regularly. However, even in her interactions with children, she doesn't seem to follow advice or guidance in parenting practices. J. E. has not been able to make enough progress to warrant the children being placed in her care this time.
J. E. was observed by Ms. Green with both children. J. E. was observed to lack in direct interaction with children. She talks and commands to the children. She did not encourage any interest in activities that promoted learning and interest. She spoke negatively to the children, once telling J. A., “you don't listen very good” and once telling C. E. the other children present at the park were “bad kids”. Once J. E. and the children were leaving, J. E. also told a concerned J. A. that the bus was leaving the other children who were at the park behind. The access facilitator appropriately interjected to comfort J. A. by saying, “the bus will be back for the kids”
[89] No update to this parental capacity assessment has been provided to the court. At the time of this assessment, J. E. was regularly using cocaine. This is no longer the case.
[90] Exhibit 13 gives a chronology of the Minister’s involvement in J. E.'s life beginning in February 1999; following the birth of her child C. E. The admissions confirm significant aspects of her drug use, her involvement in violent relationships, her neglect of her children , her lack of commitment to counselling and to drug treatment.
[91] J. E. testified July 6 and July 7, 2010. She impressed the court as intelligent, willful, prone to rationalization, committed to her children, interested in being a better parent, instinctively defensive, often lacking a broad perception of her circumstances and often lacking an understanding of how her decisions could be viewed from another perspective.
[92] The court is satisfied that she has discontinued her use of hard drugs as she testified to. The court is also satisfied that she has not yet discontinued her use of marijuana other than for short intervals; including in the weeks leading up to this hearing.
DVD record of access visits - 2010
[93] The court was provided approximately twenty hours of recordings of access visits between J. E. and her son J. A. I have watched and listened to each of these DVDs (the audio was missing on the June 1, 2010 DVD). These visits occurred after J. A. was taken into care on March 31, 2010 and in particular, they are of access visits in May and June 2010. The older child, C. E. attended most, if not all sessions with her mother.
[94] These recordings are valuable evidence. In addition to educating the court on the general logistical issues and the nature of the access venue, the DVDs, most significantly, humanized the family. Oral evidence describing the visits is woefully inadequate and incomplete.
[95] Overall this evidence is very favourable to J. E. She is interested in her children. She uses the visits to interact with J. A. and to encourage him to play with his sister. She teaches J. A. the value of sharing, the importance of playing with his sister and she teaches him that there are consequences if he engages in anti-social behaviour.
[96] J. E. is heard explaining J. A.’s separation from her on the basis of her need “to make myself a better mom for you”. This statement is repeated to J. A. at the conclusion of the May 7, 2010 access visit, after he repeatedly asks to remain with his mother and to go with her.
[97] The videos also allow us to view the dynamics of this family. Clearly, the two children are close to each other and they are close to their mother. J. E. demonstrates affection for J. A. and he is obviously attached to his mother. J. E. reveals her intelligence. In my view, she also demonstrates an understanding of the need for her to set boundaries for the children; to positively reinforce J.A.’s behaviour and the need to demonstrate affection for him. I do not agree that she is currently as incapable a parent as described in many of the documents pertaining to an earlier period of her life.
[98] Given the inherent limitations that arise from a need to spend one and one half hours with two children in a closed environment under supervision, the access visits were very positive.
[99] The video/audio record from May 13, 2010 contains the exchange between J. E. and J. A., wherein J. E. threatened to leave. Viewed in the context of the overall visit, a viewing of this exchange is less emotive than the description offered to the court. The reality is that J. A. was acting out, J. E. attempted to educate him that his misbehaviour had consequences, one of which would be a loss of part of an access visit. J. A. and J. E. recovered from the exchange. He resumed interaction with her, with his sister and demonstrated affection for both. May 13, 2010 was a difficult day for J. A., but there were many moments of positive interaction between J. E. and J. A. during this access visit.
[100] Other DVDs record very successful visits. J. E. was typically prepared, bringing game(s) and snacks. She showed interest in J. A. She attempted to reassure him that her relationship with him was secure.
[101] J. E. was respectful of the access supervisors. She appeared to be in good spirits. She and the older child are also close.
Findings
[102] The Minister has asked that J. A. be found a child in need of protection and that the disposition be his placement in the permanent care and custody of the Minister. J. E. argued that J. A. is not in need of protection and the proceeding should terminate and J. A. should be returned to her.
[103] S. A. and her son, M. A. both support the Minister’s application.
[104] The Minister relies upon the following sub-sections of the Children and Family Services Act supra, as a legal basis for its application: s.22(2)(b), (f), (g) and (ja). Any one of these may be the legal basis for an order for permanent care and custody. For ease of reference, they are produced below. Since s.22(2)(a) and (j) are referenced in (b) and (ja) respectively, they too are reproduced:
s.22(2) A child is in need of protective services where
(a) the child has suffered physical harm, inflicted by a parent or guardian of the child or caused by the failure of a parent or guardian to supervise and protect the child adequately;
(b) there is a substantial risk that the child will suffer physical harm inflicted or caused as described in clause (a);
. . . . .
(f) the child has suffered emotional harm, demonstrated by severe anxiety, depression, withdrawal, or self‑destructive or aggressive behaviour and the child's parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;
(g) there is a substantial risk that the child will suffer emotional harm of the kind described in clause (f), and the parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;
. . . . .
(j) the child has suffered physical harm caused by chronic and serious neglect by a parent or guardian of the child, and the parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;
(ja) there is a substantial risk that the child will suffer physical harm inflicted or caused as described in clause (j);
[105] The Children and Family Services Act requires that the ultimate decision of the court when determining the appropriate decision be that which is in the child’s best interests. (see Children and Family Services Act, s.2(2), s.42(1)).
[106] When determining the best interests of a child, I am required by s.3(2) of the Children and Family Services Act to consider fourteen enumerated circumstances if deemed relevant. I am not prohibited from considering additional relevant circumstances. For ease of reference, I reproduce s.3(2):
Best Interests of Child
3(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.
[107] Extensive evidence was received in this proceeding over eleven days in 2010. In addition, evidence received over five days taken in a discontinued 2008 proceeding involving the same child, forms part of the record. Expert reports were received, social workers case recordings and notes were also entered. Extensive pleadings with detailed affidavits have been filed since the proceeding commenced in October 2006. All Respondents testified.
[108] The court is required to assess the evidence, to determine whether the Minister has met its burden of proof, that is to establish on a balance of probabilities that the child is in need of protective services and finally, to determine by reference to the circumstances of s.3(2) what outcome is in the child’s best interests.
[109] The Children and Family Services Act proceeding is now beyond the statutory time line. Only the fact of this hearing has maintained the jurisdiction of the court.
[110] The court has only two options, i.e., to terminate the proceeding and order the return of the child or to order the permanent care and custody of the child.
[111] Should the court terminate the Children and Family Services Act proceeding and return the child to his mother, it has the additional responsibility to consider the application before it, pursuant to s.18 of the Maintenance and Custody Act, R.S.N.S. 1987, c. 160. All counsel agree that the court’s jurisdiction to consider the paternal grandmother’s request for access remains before the court.
[112] The first question is what relevant conclusions can be reached by the court on a balance of probabilities. This requires a critical assessment of the evidence as it relates to the circumstances that give rise to the alleged risk.
- cocaine use
[113] The record is clear and I am satisfied that J. E.’s use of crack cocaine in 2006, 2007 to January 1, 2008 was the most significant circumstance driving the Minister’s involvement in this family during this period. In addition to the impact of a cocaine addiction on J. E.’s personality, behaviour and capacity, cocaine use also gave rise to related concerns, such as a lack of stable housing; neglect of the children and J. E.’s involvement in a lifestyle that made her vulnerable to abusive relationships.
[114] Clearly, the Minister correctly placed the highest possible priority on having J. E.’s addiction addressed.
[115] I am satisfied that J. E. has not been using cocaine since January 1, 2008. J. E.’s success in shedding this addiction has been a significant accomplishment and has had very positive results for her and for her children.
- stability of residence
[116] J. E. now has a stable residence and has, at various times, maintained employment. Her ability to maintain employment and her willingness to work, are positive attributes. Obviously, her work obligations must complement her parenting obligations. More will be said about this later.
- structured routine
[117] J. E. has worked at meeting her children’s needs. There is no question that the children’s physical needs are being met. The children were by all accounts, suitably clothed, fed and bathed to March 31, 2010. J. E. has, over this year, diligently attempted to ensure the children arrived safely at school and were returned safely. J. E. has achieved a level of structure and routine in her household which J. A. requires and which is in his best interests. This is a significant accomplishment for her.
- abusive relationships
[118] J. E. has a history of becoming involved in abusive relationships. M. A., the Respondent, is identified as having been one of those partners. Mr. C. is an earlier one. These relationships terminated more than a year ago. Over the past year, I am satisfied that she was in a relationship with one P.K.. She was dishonest with the Minister and did not reveal her relationship with this man. The evidence does not permit me to conclude that they lived together or to conclude that the relationship was abusive or derived from drug usage. Its existence should have been disclosed to the Minister and J. E.’s failure to do so is a concern for this court.
[119] There being no evidence that J. E. has been involved in an abusive relationship over the past year, this is further cause for comfort about her current circumstances.
- marijuana use
[120] I am satisfied that J. E., as she testified to and as has been confirmed by the toxicology reports exhibited, has not overcome her addiction to marijuana. (She is either addicted or refuses to quit). I am satisfied, however, that the quantities consumed by her are small and consumed away from the children. She testified that this was so. The absence of any evidence, other than the toxicology reports, is somewhat corroborative. One would expect there to be a lingering odour of marijuana detected in the apartment, on J. E.’s clothing or even on the children’s clothing if J. E. was a heavy user of this drug. Notwithstanding the frequent contact J. E. had with the service providers, the school officials and others, it appears no evidence of marijuana use was detected. Nor are there reports of her being obviously under the influence of this drug. I am satisfied that she is no longer a heavy user and she is capable of weaning herself from this drug.
[121] Each time J. E. possesses marijuana, she is committing a criminal offence. She does not have a medical exemption, permitting her to consume it as a sleep aide. She is at risk of arrest. I am also satisfied that she does have a somewhat cavalier attitude about this habit. This is a concern for the court and is a reality that weighs against her in this proceeding. Her willingness to discontinue this habit is questionable.
- J. A.’s diagnosis and J. E.’s parenting
[122] J. A. has exhibited behavioural problems since a very young age. He continues to do so. The evidence of the staff of Ian Forsythe Elementary School confirms the extent of his outbursts on occasion. One foster family could not manage him.
[123] I am satisfied that he will continue to require the help of professionals to develop and to achieve a more acceptable behavioural pattern.
[124] The Minister’s officials attribute his behavioural problems to J. E., his mother. There are certainly reasons that would cause one to wonder if her lifestyle when J. A. was young resulted in injury to him emotionally. Perhaps his behaviour reflects the pre birth effect of drugs consumed by J. E. The Minister also argues that the existence of J. A.’s problems is evidence of J. E.’s ongoing failings as a parent. However, I am not prepared to reach that conclusion based on the evidence presented. The conclusions may be correct or they may not be.
[125] I am also satisfied that the single most significant factor that caused the Minister to take J. E. into care on March 31, 2010 was J. A.’s “relapse” in terms of his outbursts and aggressive behaviour at school. The March 10, 2010 meeting at the school was an effort by the educational system to address J. A.’s misbehaviour with a strategy. The plan of care filed in April 2010 which called for permanent care of J.A. emphasized this factor (Exhibit 22 Tab 11 at p. 7-9).
[126] J. E. was a key person whose advocacy resulted in that meeting. As has been observed, however, the Minister’s underlying assumption as to the reason for the misbehaviour is not established. The court heard evidence that a “relapse” in behaviour after Christmas or after a period of time could have been anticipated given the nature of the behavioural modification strategy employed in the fall of 2009. That is not to say the strategy was inappropriate, only that it has limitations.
[127] This child may have a condition or conditions that explain in whole or in part, his behaviour. Is this a circumstance where medication would assist?
[128] I have already observed that Ms. Billard was concerned after the March 10, 2010 meeting at J. A.’s school, that the school was focussed on a possible medical explanation. Ms. Woodin also testified that she is not qualified to diagnose J. A. He is now to be assessed by the IWK.
[129] The weighing of the evidence relevant to the impact of J. E.”s parenting style on J. A., must be considered with the Minister’s position that J. A.’s older sibling, C. E. can be parented by J. E.
[130] The Minister in general terms, explains the decision to not take C. E. into care on March 31, 2010. It is pointed out that she is older, she is a different child, each child is different, etc. The Minister does not explain why that is significant in the case of J. E.’s parenting.
[131] As Ms. Jones, counsel for J. E. points out, one might expect the older child to exhibit more behavioural issues than J. A., not fewer, given she has been exposed to J. E. for a longer period.
[132] Of course, the reality is that such conclusions are outside the competence of non professionals. An explanation of J. A.’s behaviour is not provided. The court is being asked to conclude that J.A.’s current behavioural issues are due to J. E.’s parenting deficiencies. I am not satisfied that this is so. Nor is the court in a position to conclude why C. E. can be parented successfully by J. E. and J. A. can not.
[133] Does the evidence establish on a balance of probabilities, the existence of any of the grounds identified as a basis for finding J. A. in need of protection?
s.22(2)(a) and (b) - risk of physical harm, failure to supervise and protect
[134] The Minister did not assert with any degree of confidence that the evidence supported a conclusion that J. A. is at risk of physical harm or can not be adequately protected by his mother, J. E. I find that there is no reasonable basis for concluding that this risk exists.
s.22(f) and (g) - risk of emotional harm
[135] I am satisfied on a balance of probabilities that J. A. will continue to need the support of professionals in the educational and health care fields. As has been discussed, the genesis of his behavioural problems is not satisfactorily explained. I am not prepared to conclude that J. E. is “responsible” for J. A.’s behavioural problems.
[136] Nor am I prepared to conclude on a balance of probabilities that J. E. (1) does not provide; (2) refuses or is unavailable or unable to consent to (a) services or treatment to alleviate the condition.
[137] J. E. has made significant progress and is better equipped and motivated than at any time to support services/treatment for J. A. She has in fact been very vigilant of those services and treatment strategies that have been employed. She has also been critical and has found herself in conflict with J. A.’s educators as a consequence.
[138] In reality, there is no consensus among J. A.’s educators and social workers as to what treatment will work. In large measure, this flows from the unresolved question of whether a medical explanation for J. A.’s problems exist.
[139] The court has concluded that J. E.’s personality is not well suited to taking advice. She has an exaggerated sense of confidence in her opinion. Nevertheless, these attributes are not a barrier to J. A.’s treatment or his getting services. Nor are they a barrier to her learning to do things differently. The DVDs in evidence reveal that J. E. has learned to be a better parent over the past three years.
s.22(j) and (ja) - risk of physical harm caused by serious neglect
[140] In J. A.’s early life, J. E. neglected him and his sister. She was addicted to cocaine, had an unstable residence and involved herself in abusive relationships. As stated, she has made significant progress.
[141] Many of the comments under the preceding headings have application when, s.22(j) and (ja) are considered.
[142] J. E. requires more parenting help and must end her regular consumption of marijuana. Her parenting deficiencies and use of marijuana do not currently place J. A. at risk of chronic or serious neglect leading to physical harm, nor at risk of chronic or serious neglect.
Best Interests Criteria
[143] I have considered all the relevant factors outlined in s.3(2) of the CFSA and reproduced supra at paragraph 105.
[144] The Minister is of the view that J. A. would be adopted quickly if placed in permanent care. Presumably, he would then obtain a secure place as a member of a family.
[145] In my view, he has a secure place as part of J. E.’s family, in both her immediate family and her extended family. He loves his mother, his sister and the DVDs in evidence show him demonstrating affection for his maternal grandmother. J. E. has a stable residence; a predictable routine and is successfully parenting J.A.’s older sister, C. E.
[146] He seems secure in these relationships. An order for permanent care may result in the loss of these relationships and probably will. These relationships have been the constant in his life. He has experienced significant dislocation and change. An order for permanent care will end what continuity he has had.
[147] I believe the disruption of his bonds with these family members is not in his best interests. He will experience a significant loss if these bonds are broken.
[148] I am satisfied that J. A.’s physical, mental and emotional level of development can be appropriately nurtured within the family of J. E.
Conclusion
[149] Given my conclusions, the proceeding under the Children and Family Services Act is terminated. J. A. will be returned to his mother.
[150] The application of S. A., under the Maintenance and Custody Act, must now be considered.
[151] On June 8, 2010, the Respondent, S. A. filed an application under the Maintenance and Custody Act seeking leave to apply for (s.18) and seeking custody of J. A. (s.18). Her application was granted. The parties agreed that her application would be consolidated with the Children and Family Services Act proceeding pursuant to Rules 69.05 and 39.02.
[152] After hearing several days of evidence, interrupted by a weekend, when S. A. had J. A. in her care, her application for primary care of J. A. was amended to an application for access only. Had the court not terminated the Children and Family Services Act proceeding, there would be no need to consider the Maintenance and Custody Act application. Given that the child has been returned to J. E., the court must respond to the application.
- access
[153] I am satisfied that S. A. should have access to her grandson as requested. She testified. She was prepared to assume primary care of J. A. until she realized her limitations and J. A.’s needs did not make that possible. She is an experienced parent and foster parent. There is much that she can contribute to J. A.
[154] She lives in *, * adjacent to *. She visits * each summer and has a cottage in the * region that she wishes to share with J. A.
[155] S. A. has also been involved with J. A. She maintained contact with J. E. and regularly inquired about J. A and his sister, C. E. I am satisfied that she will remain involved and that her involvement is in J. A.’s best interests.
[156] J. E. will undoubtedly benefit from a respite of her care of J. A.
[157] Through S. A., M. A., J. A.’s father will also have an opportunity to remain involved in his son’s life. M. A. is not seeking court ordered access and none is ordered.
[158] S. A. will have, as requested, a period of summer block access, to be enjoyed by J. A. in *. S. A. will be required to make arrangements for travel for J. A.; J. E. and S. A. are directed to cooperate to ensure this happens.
[159] In those years where S. A. will be available in Nova Scotia to also see J. A., she may have an additional block access period of up to ten days.
[160] She shall also have reasonable contact by telephone, over the internet and through the mail. J. E. is directed to encourage and to support this access.
[161] J. E. is directed to permit such further and other access as can be arranged over the school year between S. A. and J. A.
[162] By way of obiter, given that the court does not have an application for access from H. E., the maternal grandmother, the court is of the view that J. A. should also be permitted to regularly spend time with his maternal grandmother. She has an involved history with J. A. and his sister, C. E. She has been a concerned and supportive grandmother. The Minister supported her application for primary care of J. A. and C. E. until it was abandoned.
[163] She testified in the fall of 2008. The court is satisfied that she has much to offer J. A. and it is in his best interests that she remain involved in his life.
[164] The court directs J. E. to consider establishing a weekly respite period with H. E. In addition to providing a break from her parenting demands, J. A. will benefit from time with his maternal grandmother. I am satisfied that he has an established relationship with her and that it is in his best interests that the relationship be maintained, nurtured and strengthened.
- primary care
[165] The order to flow from this proceeding will confirm that J. A. will be in the primary care of J. E. It will also direct that her primary care is subject to conditions. These are as follows:
1. That J. E. abstain from the possession and consumption of marijuana.
2. That J. E. adhere to a program to assist her to abstain from the possession and consumption of marijuana.
3. That J. E. cooperate with educational and health care professionals assessing and treating J. A.
4. That J. E. cooperate with educational and health care professionals in the implementation of a plan to address J. A.’s needs.
5. That J. E. determine the availability of parenting programs and make herself available for instruction that would assist her to meet her parenting obligations and which instruction should address the topic of parenting a difficult child.
6. That J. E. accept an offer by H. E., her mother, should it be made, to care for J. A. on a structured basis so that J. E. can get respite from her parenting.
7. That J. E. cooperate with S. A. in arranging block time access between J. A. and S. A. and cooperate to ensure regular telephone or related access between J. A. and his paternal grandmother.
8. That J. E. not accept employment that renders her unavailable to care for J. A. before school or after the supper time period or on weekends or holidays.
9. That J. E. maintain a stable residence.
10. That J. E. not permit other adults to live with her unless she has first obtained a professional assessment of the impact of such a change on J. A.
11. That J. E. make arrangements, if she has not already done so, for J. A. to be in the care of a pediatrician.
J.