QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 287 Date: 2008 07 21 Docket: F.S.M. No. 91 of 2003 Judicial Centre: SASKATOON, Family Law Division BETWEEN: IN THE MATTER OF HEARING UNDER THE CHILD AND FAMILY SERVICES ACT, AND IN THE MATTER OF “KATIE”, BORN APRIL 1, 1993 “HANNAH”, BORN JUNE 17, 1994 “BOBBY”, BORN JUNE 2, 1996 (The names of the children have been changed to pseudonyms) Counsel: P.L. Tallis and Jack Hillson for the Minister D. J. Mullord, Q.C. for the mother JUDGMENT WILSON J. July 21, 2008 [1] Katie, now 15 years old, Hannah, now 14 years old, and Bobby, now 12 years old, were apprehended from their mother, S.D., (the “mother”), on March 2, 2006. The Minister seeks an order pursuant to s. 37(3) of The Child and Family Services Act, S.S. 1989-90, c. C-7.2 (the “Act”), placing the children in the care of the Minister until each child turns the age of 18 years. The mother is opposed to the Minister’s request for long term orders for the three children. The mother takes the position that the children are not “children in need of protection” pursuant to s. 11 of the Act and that the children should be immediately returned to her care. If, however, determine that the children are children in need of protection, the mother proposes that make short term supervisory order under s. 37(1)(a) of the Act, returning the children to the mother’s care under supervision and conditions. THE ISSUES [2] The questions I must answer are as follows:1. Are the children, Katie, Hannah and Bobby, or any of them, children in need of protection pursuant to s. 11 of The Child and Family Services Act?2. If so, what is the appropriate order to be made, respecting each of the children, pursuant to s. 37 of the Act? LEGISLATIVE FRAMEWORK [3] As set out above, the Minister seeks an order under s. 11 of the Act declaring Katie, Hannah and Bobby to be children in need of protection. Subsections (a) and (b) of s. 11 are the relevant subsections in this matter. Those subsections read as follows: 11 child is in need of protection where: (a) as result of action or omission by the child’s parent: (i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer serious impairment of mental or emotional functioning; (iii) the child has been or is likely to be exposed to harmful interaction for sexual purpose, including involvement in prostitution and including conduct that may amount to an offence within the meaning of the Criminal Code; (iv) medical, surgical or other recognized remedial care or treatment that is considered essential by duly qualified medical practitioner has not been or is not likely to be provided to the child; (v) the child’s development is likely to be seriously impaired by failure to remedy mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur ... [4] In the event that find Katie, Hannah and Bobby to be children in need of protection, must then make an appropriate order under s. 37 of the Act. The relevant subsections of s. 37 read as follows: 37(1) Subject to subsection (2), if the court determines that child is in need of protection, the court shall make an order that the child: (a) remain with, be returned to or placed in the custody of his or her parent; (b) be placed in the custody of person having sufficient interest in the child; or (c) remain in or be placed in the custody of the minister for temporary period not exceeding six months. (2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanently committing the child to the minister. (3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (a) child is in need of protection; and (b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child were permanently committed to the minister; order that the child be placed in the custody of the minister until the child attains the age of 18 years. [5] In making an order under s. 37, am directed by subsection 37(4) to consider the best interests of the child. In addition, may consider the recommendations of “the officer” which, in the case before me, is the Minister of Social Services. [6] Section of the Act sets out the factors that must consider when determining the best interests of child. Section reads as follows: Where person or court is required by any provision of this Act other than subsection 49(2) to determine the best interests of child, the person or court shall take into account: (a) the quality of the relationship that the child has with any person who may have close connection with the child; (b) the child’s physical, mental and emotional level of development; (c) the child’s emotional, cultural, physical, psychological and spiritual needs; (d) the home environment proposed to be provided for the child; (e) the plans for the care of the child of the person to whom it is proposed that the custody of the child be entrusted; (f) where practicable, the child’s wishes, having regard to the age and level of the child’s development; (g) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; and (h) the effect on the child of delay in making decision. [7] With this legislative framework in mind, now turn to consideration of the evidence in this matter. EVIDENCE AT TRIAL [8] The trial in this matter commenced on January 7, 2008 and heard evidence over period of two weeks. The mother of the children was represented by counsel and presented case at trial. The father of Katie and Hannah, S.T., did not appear at trial. On the first morning of trial, the child protection worker was in contact with S.T., by telephone, as it was anticipated that he would appear for trial. The worker, Ms. Wall, advised the court that S.T. indicated he was unable to attend the trial as he was ill. S.T. advised Ms. Wall that he did not wish to be part of the proceedings and was not taking any position in the proceedings. The father of Bobby, J.W., did not appear, and was not involved in these proceedings prior to trial. [9] During the trial of this matter, the Minister called 18 witnesses including one expert witness. For the mother, five witnesses testified, including two experts and the mother herself. do not intend to repeat the evidence of each witness and will, instead, refer to testimony of the witnesses on the relevant factual matters under consideration. [10] The mother is the mother of three children, all of whom are in the care of the Minister, having been apprehended on March 2, 2006. The child, Katie, born April 1, 1993, and the child Hannah, born June 17, 1994, are residing in the foster home of Annette Saccucci. The child, Bobby, born June 12, 1996, resides in therapeutic foster home with Margaret Claypool. [11] The father of Katie and Hannah is S.T. As said above, he did not attend trial because he is ill. S.T. has terminal cancer. S.T. currently resides in Leask, Saskatchewan and has not had much contact with the children since the apprehension in March, 2006. However, during certain periods of the children’s lives, S.T. was very involved parent. S.T. and the mother lived together in common-law relationship from 1989 to 1994. They then resumed cohabitation, as “roommates”, in 2005 in the mother’s home in Saskatoon. S.T. was at the home when the children were apprehended and, as set out later in my judgment, S.T.’s behaviour, and the mother’s acquiescence of his behaviour, was one of the reasons the children were apprehended. [12] The father of Bobby is J.W. The mother and J.W. were together for short period of time in and around 1994/1995. At the time Bobby was born, J.W. was incarcerated. According to the mother, her relationship with J.W. was abusive. J. W. has had little, if any, involvement with his son, Bobby, since his son’s birth. [13] The mother was born on April 18, 1975 and is now 33 years old. The mother has two siblings, namely Will and Joe. The mother’s parents separated when the mother was in grade and in early 1992, her father died. The mother has fairly close relationship with her mother, the children’s maternal grandmother. The maternal grandmother lives in Saskatoon with her son, Will. [14] The mother met S.T. while living in Grande Prairie, Alberta. When the mother was 16 years old, she left with S.T., then 23 years old, and moved to Edmonton, Alberta. S.T. became involved in criminal activity and was arrested in Calgary. The mother then returned to Grande Prairie to live with her mother. However, in January of 1991, the mother moved with S.T. to Saskatoon. [15] The first child of the mother and S.T., Katie, was born on April 1, 1993. Katie was born with severe disabilities. Doctor Jo Nanson, an expert in clinical psychology with particular expertise in neuro-psychology, provided the court with information respecting Katie’s difficulties. In addition, heard from Katie’s family doctor, Dr. Anne McKenna, who has worked with the mother and Katie since Katie’s birth. [16] Katie was born with Goldenhar Syndrome, disorder characterized by anomalies of the face, ears, eyes and vertebrae. Katie was born with no outer ears and no lips. After birth, Katie underwent surgery for cleft lip and palate. Katie has severe hearing loss and has bone conduction hearing aids which she wears as headband. In Dr. Nanson’s report dated September 9, 2006, reference is made to the various specialists who have been involved with Katie since her birth. Dr. Gordon, psychologist at the Alvin Buchwold Child Development Program, has determined that Katie functions at approximately 1/2 to year level. Katie has no speech, requires constant supervision, is not toilet trained, has mild cerebral palsy, and walks with spastic gait. Dr. McKenna testified that Katie is not likely to live past her early twenties as renal failure is significant risk for child with Goldenhar Syndrome. [17] The mother herself has some medical problems. The mother was diagnosed with Type diabetes at the age of 13. Unfortunately, according to Dr. McKenna, the mother does not monitor her diabetes closely. As result, during pregnancy, the mother had to be admitted to hospital number of times. The mother admitted to Dr. Nanson that she does not check her blood sugar on regular basis, nor does she strictly follow diet. Further, the mother disclosed that she does not have regular family doctor and simply uses walk-in clinic if she is not feeling well. The mother told Dr. Nanson that she does not believe that she needs any medical help to manage her diabetes. [18] The Ministry became involved with the mother and Katie the day after Katie was born. Katie’s maternal grandmother, who had moved from Alberta to Saskatoon to assist the mother, was available as resource. However, the Ministry believed the mother could use some additional support. The mother was hostile to workers from the Ministry, an attitude the mother has maintained since 1993. The mother was prepared to accept parent aid and the mother signed number of parent aid contracts over the period from November, 1993 to April, 1995. She was not, however, happy to have the Ministry involved, and never has been. [19] The mother and S.T. had their second child, Hannah, on June 17, 1994. Shortly thereafter, S.T. left the mother’s home. The mother testified she was glad he was gone. According to the mother, the mother’s relationship with S.T. was an emotionally abusive relationship and the mother was stressed out as result of the constant fighting. [20] After S.T. left the mother’s home, the maternal grandmother moved into the home to help assist with the care of Katie and Hannah. Later that fall, the mother commenced relationship with J.W. This relationship was short-lived, ending in November, 1995, and was marked by violence. The mother became pregnant and the child of the mother and J.W., Bobby, was born June 12, 1996. [21] Prior to Bobby’s birth, the Minister became concerned about the mother’s ability to care for Katie and Hannah. The Ministry was in contact with Dr. McKenna and asked Dr. McKenna to encourage the mother to work with parent aid. Dr. McKenna did advise the mother that the mother should voluntarily work with parent aid or it was likely the children would be apprehended. Dr. McKenna testified at trial that she thought the mother was coping fairly well and was not neglecting the children. Dr. McKenna acknowledged that Katie had very special needs and challenges which would be even more difficult for teenaged mother. [22] After Bobby was born, the Minister had some concerns regarding possible failure to thrive. According to Dr. McKenna, Bobby was not experiencing difficulties and was growing well. [23] Dr. McKenna continued to provide medical services to the mother and the children throughout the time period from 1997 to 2003. The Ministry had concern in January, 1999 as result of Katie having injuries to her face. It was determined that Katie’s injuries were as result of self-harm but the Ministry believed the mother was not always on top of the children’s medical needs. The mother used parental aid services in the spring and summer of 2003. The mother’s file at the Minister’s office was closed on June 24, 2003. It appears she was managing to care for the three children with the assistance of the maternal grandmother. [24] The Minister’s file was re-opened in the late fall of 2003. Katie was placed on apprehended status on November 13, 2003. Hannah and Bobby were placed on apprehended status on November 17, 2003. Katie was found to have significant injuries, including bite marks on her face which, of course, could not have been self-inflicted. [25] The mother had commenced relationship with man by the name of J.M. in the summer of 2002. The mother testified she married J.M. and, at the time of trial, remained legally married to him. J.M. was suspected of assaulting Katie. Alternatively, there remains possibility that the bite marks were as result of Hannah biting her sister. [26] An order was made by Wright J., December 23, 2003, directing pre-trial conference be held in early January, 2004. Wright J. ordered that the mother was to have access with the children for minimum of three times per week for minimum of four hours. Wright J. allowed the access to occur at the mother’s home on the condition that the children not be left unsupervised in the presence of J.M. at any time during the access. [27] On January 6, 2004, the pre-trial did not proceed as an agreement was reached. The three children were returned to the mother’s care pursuant to s. 37(1)(a) of The Child and Family Services Act. The supervision of the mother was ordered to take place for period of six months and conditions were placed on the mother for the six month period. The mother and J.M. were ordered to attend anger management and parenting classes, allow parent aid into their home, work cooperatively with the Minister, and ensure all of the children’s medical needs were being met. [28] In and around the late fall of 2003, Bobby was diagnosed with attention deficit disorder. According to Dr. McKenna, she did not originally prescribe medication for Bobby because the mother did not want any street drugs in her home. However, by March of 2004, Dr. McKenna made determination that Bobby should take Ritalin for his condition. As set out in Dr. McKenna’s letter of March 8, 2004, to worker for the Ministry, the type of Ritalin prescribed was Concerta, type of drug that cannot be used on the street. will deal with the issue of Bobby’s medications, and the mother’s attitude towards the same, later in this judgment. [29] When the children were returned to the mother in early 2004, parent aid worked with the mother until the fall of 2004. The Ministry continued to stay involved with this family through the execution of number of Parental Services Agreements (“PSA’s”). After the father of Katie and Hannah, S.T., returned to live with the mother in November, 2005, concern arose regarding S.T. According to Christine Kelleher, the child protection worker assigned to this file, the Ministry had the mother and father agree that S.T. would have no unsupervised time with the children. [30] Ms. Kelleher testified that this condition, regarding S.T., formed part of the PSA because of S.T.’s conviction for physical abuse of another child. have evidence before me that S.T. was involved in relationship with another woman, namely Emma, and it was child of Emma’s that S.T. assaulted. It is not disputed that S.T. breached the condition of the PSA allowing only supervised time with the children, Katie, Hannah and Bobby. According to Ms. Kelleher, when the workers learned that S.T. was transporting Katie to school with no supervision, and upon getting reports from S.T.’s parole officer, neighbors and the children, all confirming that S.T. spent time alone with Katie, the Minister determined an apprehension was appropriate. [31] This court proceeding was launched by the Minister by way of notice of protection hearing. The Minister sought three month order pursuant to s. 37(1)(c) of the Act. The mother objected and the matter was set for pre-trial on May 16, 2006. The pre-trial did not proceed. Smith J. made an unusual fiat indicating that in light of the “unfounded, unreasonable, and unbelievable allegations advanced by the mother”, this matter should proceed directly to trial. He did not say what the mother had alleged. On June 5, 2007, Smith J. granted consent order regarding disclosure by the Minister to the mother’s lawyer. management pre-trial conference was then held on October 30, 2007. Trial dates, for January, 2008, were set. The Children [32] As set out above, Katie was born with Goldenhar’s Syndrome and has significant physical and mental disabilities. The nature of those disabilities was described above as provided through the testimony of Dr. Nanson and Dr. McKenna. [33] When Katie was born, the mother and Katie’s father, S.T., were residing in an apartment on 22nd Street in Saskatoon. The maternal grandmother lived approximately block away and provided assistance to the mother to take care of Katie. The maternal grandmother acknowledged that it was difficult to care for Katie given her many problems. However, she testified that the mother learned how to deal with feeding plate required because of Katie’s cleft palate and essentially took full responsibility for Katie’s care. [34] Jean Berndt, who was the principal at Mayfair School in Saskatoon from 1998 to 2002, testified regarding Katie’s attendance at Mayfair School for two year period from 2001 to 2003. also heard testimony from Mindy Waldner, the teacher aid assigned to Katie. Ms. Berndt testified that Katie was in special program at Mayfair School but was in normal classroom with full-time teacher’s aid. Katie had significant needs as Katie could not speak and was not bathroom trained. Sign language communication and some toilet training was part of Katie’s regular programming while Katie was at the Mayfair School. [35] Ms. Berndt described Katie as being happy some days, and very unhappy on other days. On her difficult days, Katie would hit and bite herself, scream and could lash out and hurt her teacher assistants. [36] Ms. Berndt had some difficult times with Katie’s mother during this period. According to Ms. Berndt, the mother would call, use bad language, yell at Ms. Berndt and threaten to sue the school. Ms. Berndt testified that she advised the mother she would not deal with her unless it was in respectful manner. The mother was able to alter her behaviour and deal appropriately with Ms. Berndt. [37] Ms. Berndt had some concerns over the mother’s care of Katie. Specifically, Ms. Berndt was concerned that, despite the school’s several requests to the mother, the mother did not proceed to get new batteries for Katie’s hearing apparatus, nor did the mother recognize that Katie’s leg splints were no longer fitting and required readjustment. Eventually, Ms. Berndt handled the hearing aid issue and took Katie to physiotherapist where Katie was measured for new leg splints. The mother was not present. [38] Ms. Berndt acknowledged that, during this period of time, the mother was attempting to complete course at SIAST. Ms. Berndt testified that she most often dealt with J.M., the mother’s common-law partner, regarding issues relating to Katie. If Katie was sick, it would be J.M. who would attend at the school to bring her home. According to Ms. Berndt, the mother asked the school not to call the mother at SIAST, Kelsey Campus, as she didn’t want to be disturbed. [39] Ms. Waldner, Katie’s teacher aid for the time period Katie was at Mayfair School, testified that she worked with Katie all day doing modified work. Although Ms. Waldner did see some development during the time she worked with Katie, it was quite minimal. Katie’s behaviour remained self-abusive and difficult to control. Katie lashed out at Ms. Waldner, leaving her bruised. [40] Ms. Waldner testified that, on occasion, Ms. Berndt, Ms. Waldner and others would have group meeting with the mother to discuss Katie’s progress. It was Ms. Waldner’s view that the mother was reluctant to admit Katie had any limitations and that the mother was often “short” or “rude”. When the mother was told that Katie walked on her tiptoes, and that they should try to work on this issue, the mother’s response was that Katie could be model. Ms. Waldner knew the mother was joking but felt the mother truly didn’t understand how limited Katie was and how difficult it was for the school to cope with Katie’s needs. [41] Ms. Waldner said Katie’s hygiene was an issue. Ms. Waldner said that on some days, Katie smelled strongly of urine and had diaper rash. On occasion, the batteries in her hearing aid had gone dead and, clearly, the mother had either not noticed or failed to replace the batteries. Ms. Waldner testified that she was able to teach Katie to wash her hands after going to the washroom. Katie was very excited when her hands smelled like soap. [42] Ms. Waldner was shown series of photographs of Katie dated November 12, 2003. The photographs depict bruising on Katie’s cheekbone and bite marks on her cheek, ear and nose. It was after this day that Katie was apprehended and the order of Wright J. was made December 23, 2003. Unfortunately, this was not the first time that Katie had arrived at school with significant injuries. [43] Ms. Waldner testified that in February, 2003, Katie arrived at school with severe black eye. Ms. Waldner was of the view that Katie didn’t have the strength or accuracy to self-inflict the injury on her face. When the mother testified, she said that J.M. told her the injury must have occurred at school. [44] Under intense cross-examination regarding the February, 2003 and November, 2003 injuries suffered by Katie, the mother acknowledged that J.M. had been violent with the mother. However, the mother testified that she had never seen J.M. hit any of the children. The mother admitted that it was likely J.M. was responsible for Katie’s injuries and that the mother was endangering the children by not dealing with J.M. appropriately. According to the mother, she has changed. She testified she would no longer put the interests of man before her children. [45] After Katie was apprehended in early March, 2006, Katie, along with her sister, Hannah, were placed with foster family in Rosthern, Saskatchewan, approximately 60 kilometers north of Saskatoon. The foster mother and father, Annette and Rick Saccucci, live on farm, seven miles outside of Rosthern. They have horses, cattle and hay land. [46] Ms. Saccucci testified that she was overwhelmed when Katie first came into her home. Katie was very agitated and was hitting both Ms. Saccucci and her husband, Rick. For the first three months that Katie was in the care of the Saccuccis, she had temper tantrums, broke chairs, bit and punched at both foster parents. Ms. Saccucci testified that Katie required medication to soothe her and that her sister, Hannah, was fully aware of what medications Katie required. [47] Katie had severe lice when she first moved into the home of the Saccuccis. Ms. Saccucci testified that the nits were six inches down each hair shaft which meant the lice had been problem for over year. Ms. Saccucci spent hours picking the nits and it was close to month before Katie’s head was clear. [48] Ms. Saccucci testified that in the two years Katie has been in her home, she has seen great improvement. Katie is, according to Ms. Saccucci, no longer having temper tantrums and outbursts and appears to be comfortable with both Ms. and Mr. Saccucci. Katie shows affection and “asks” permission to hug them by using her limited sign language. Although Ms. Saccucci says she tried initially to potty train Katie, it simply hasn’t worked. Katie will come to Ms. Saccucci if she has dirty or wet diaper, but has been unable to learn how to approach Ms. Saccucci prior to using her diaper. [49] Ms. Saccucci describes Katie as very obedient child who asks permission for food, water or to play outside. Ms. Saccucci believes the placement of Katie in her care has been highly successful and testified that she would be willing to continue to care for Katie until Katie reaches the age of 21 years. Ms. Saccucci explained that although most foster care arrangements end when child reaches the age of 18, in light of Katie’s special needs, she can stay with foster family until the age of 21. Further, an application can be made for further assistance, when Katie is 21 years old, and it may be possible for Katie to stay in the Saccucci household for as long as she lives. [50] After Katie moved to the home of the Saccuccis, she commenced school in Hague. Katie’s special education resource teacher from March, 2006 until the end of June, 2007 was Andrea Woods-Fehr. Ms. Woods-Fehr said Katie was confused on her first day at the school and, initially, often came to school upset. Katie would “tantrum”, hitting her own face or others. Over time, Katie settled in at the school and began learning more sign language. Ms. Woods-Fehr indicated that Katie can sign for her needs like food, drink or the bathroom but must point to pictures for feelings and emotions. [51] Ms. Woods-Fehr said that Katie no longer has tantrums but still will self-harm on occasion. On the positive side, Katie has become interested in her own appearance. Katie likes her nails painted, new clothes and looking pretty. [52] Ms. Woods-Fehr indicates that Katie is in physical therapy program which has improved her balance and core strength. Katie’s gross motor skills have improved although her fine motor skills remain an issue. [53] Ms. Woods-Fehr testified that there is both junior and senior program at the Hague school. Katie is now with students of her own age group in the senior program. Katie can sort bottles and cans as part of the program through Valley Action. According to Ms. Woods-Fehr, Katie can stay at the Hague school until she is 21 years old. [54] Under cross-examination, Ms. Woods-Fehr gave evidence that there is similar program for child with Katie’s needs at Hugh Cairns school in Saskatoon. [55] Hannah is, as set out previously, now 14 years old. Of the three children, Hannah is the only child without any medical problems. Although there is some testing being undertaken regarding Hannah’s hearing, there is no evidence before the court that Hannah suffers from any other medical disabilities. At the time the children were apprehended in March, 2006, Hannah was attending Caswell school in Saskatoon. Hannah was in grade 5/6 class. According to her teacher, Jana Scott-Lindsay, Hannah worked very hard in class, had lots of friends and was very nice girl. Unfortunately, Hannah struggled little with her school work and, particularly, with language arts. [56] Hannah and her younger sibling, Bobby, both attended Caswell school. According to Ms. Scott-Lindsay, Hannah took care of Bobby. For example, Bobby would, on occasion, come to Hannah’s class and ask for her. Hannah always helped him and, in fact, on one occasion gave him his medication for ADHD. [57] When Hannah was apprehended in March, 2006, she was placed, with Katie, in the home of Annette and Rick Saccucci. Ms. Saccucci testified that Hannah was upset at first and didn’t have an understanding of why the three children were apprehended from the care of their mother. It became clear to Ms. Saccucci immediately that Hannah was more concerned about her sister Katie than she was herself. Hannah would get upset at Ms. Saccucci for not looking after Katie’s needs before any of the other children in the home were looked after. On one occasion, Hannah told Ms. Saccucci, that Katie needs to be fed first before anyone. [58] When Hannah arrived at the Saccucci home, like Katie, her hair was full of lice. When Ms. Saccucci had Hannah checked out at the community centre, they indicated it was likely the lice had been in her hair for over year. When asked if it bothered her, Hannah said “no, you get used to it”. [59] Ms. Saccucci testified that Hannah really hated the Ministry and felt the Ministry was to blame for her mother not getting an education. Hannah told Ms. Saccucci that the Ministry just rips families apart and called her worker, Christine Kelleher, “family destroyer”. [60] The tension between Ms. Saccucci and Hannah continued for few months regarding Ms. Saccucci’s care of Katie. Hannah wanted to parent Katie and was concerned about the level of care Ms. Saccucci was providing for Katie. Finally, Ms. Saccucci testified she told Hannah she was the adult and the parent and it was her job to look after Katie, not Hannah’s. [61] Ms. Saccucci testified that after Hannah was with her for awhile, she warmed up. It appeared to Ms. Saccucci that Hannah began to accept that Katie was not Hannah’s responsibility. Ms. Saccucci believes that Hannah no longer feels need to be mother to Katie and is now being child. [62] Ms. Saccucci testified that Hannah loves spending time outdoors doing chores and being with the animals. Hannah loves horseback riding and being with the cats and dogs. When Ms. Saccucci asked Hannah about the future, Hannah expressed desire to be vet assistant. Hannah told Ms. Saccucci that she loves school and never had chance to stay in one school long enough to care about school. It was clear to Ms. Saccucci that Hannah does know about the court proceedings. Hannah told Ms. Saccucci that part of her wants to go home to her mother, and part of her wants to stay forever with the Saccuccis. [63] Ms. Saccucci testified that when Hannah talks of her birth family, she mostly talks about her younger sibling, Bobby. Hannah is worried about Bobby because Bobby doesn’t live in the same home as Katie and Hannah. Ms. Saccucci said that Hannah sees Bobby once per month and is aware that she can call the foster home where Bobby is living, at any time, to talk to Bobby. [64] Ms. Saccucci says that Hannah sometimes comes away depressed from her visits with her mother. Hannah has told Ms. Saccucci that she is very mixed up and just wants everyone to be happy. She has also told Ms. Saccucci that she doesn’t want to go to soup kitchens anymore like she did when she lived with her mother. [65] Ms. Saccucci testified that she is not opposed to Katie and Hannah’s mother coming to visit at the farm. Further, she indicated she would be willing to take Bobby overnight for visit if she felt Hannah needed to spend some time with him. Finally, Ms. Saccucci testified that she would be willing to assist with Hannah seeing her father, S.T. Ms. Saccucci was aware that S.T. was ill and, if appropriate, was willing to assist with visit for Hannah with her father. [66] With respect to Hannah’s schooling in the Rosthern district, Hannah was provided with special education resource teacher at the Rosthern school. Brenda Epp began working with Hannah in March of 2006. At the time of trial, Ms. Epp had worked with Hannah for almost two years. Ms. Epp said that Hannah initially kept to herself, was scared, cried easily and was reluctant to try new things. Ms. Epp has noticed significant change in Hannah. Hannah now has more friends, is more confident academically, plays basketball, sings, and gets along well with the other children at school. [67] Similar to the evidence received from Ms. Saccucci, Ms. Epp said Hannah appears very concerned about her brother, Bobby. She expressed worry about his care in his foster home. After Hannah was given the opportunity of meeting Bobby’s foster mother, she felt better and told Ms. Epp that Bobby was in good home. [68] Mary Middleton is counsellor/social worker employed by the Saskatoon Health Region. She has counselled Hannah, seeing her approximately once every four to six weeks. According to Ms. Middleton, Hannah is delightful, intelligent child. Unfortunately, Ms. Middleton also testified that Hannah was highly parentified. According to Ms. Middleton, Hannah has all the adult skills of caretaking for other children, making meals, cleaning and generally taking on an adult role. [69] Ms. Middleton says Hannah has changed over the course of the year Ms. Middleton has worked with Hannah. Hannah is more confident, and now has belief that she will graduate high school. Ms. Middleton testified that when she first started working with Hannah, it was all about who Hannah could please as opposed to what Hannah wanted for herself. Hannah has told Ms. Middleton that she would prefer to remain with the Saccucci family but wants to have lots of visits with her mom. She has expressed great love for her mom but expresses desire for the Saccucci home. [70] Hannah has told Ms. Middleton that her life with her mother was difficult. Hannah told Ms. Middleton about moving constantly from house to house and school to school. She described homes where there were rats and mice and the fact that she had to sleep on the floor. [71] During cross-examination of Ms. Middleton, Ms. Middleton was shown number of cards, drawings and other writing that Hannah prepared while living in the foster home. The drawings show Hannah saying how much she loves her mom and dad and wishing she could go home. These drawings were done when Hannah was first moved into foster care. It appears Hannah has stopped expressing desire to go home. [72] According to Ms. Middleton, Hannah has expressed concern that her mother has new boyfriend. Hannah didn’t give Ms. Middleton his name but mentioned his existence number of times to Ms. Middleton. [73] heard testimony from Lucille Spriggs, Hannah’s teacher for the school term September, 2007 to June, 2008 and from Lisa Hryciuk, the school counsellor at Rosthern High who runs self-esteem group for girls. Both Ms. Spriggs and Ms. Hryciuk testified that, for the most part, Hannah is doing well. [74] Ms. Spriggs described Hannah as friendly girl, who fits in well, and has many friends. Ms. Hryciuk also testified that Hannah has good social group and seems to fit in well at school. Ms. Spriggs says that Hannah does require some extra help with her schooling but it is realistic for Hannah to believe that she will complete high school and be able to proceed on to SIAST or other post-secondary education. [75] Both Ms. Spriggs and Mrs. Hryciuk testified that Hannah talks about her foster parents and the farm and doesn’t, very often, talk about her birth home. Ms. Hryciuk did say, however, that when Hannah does talk about her birth home, there are good things about the home just like there are about her foster home. Hannah told Mrs. Hryciuk that she wanted to talk to the judge by herself because she didn’t want to hurt her mother’s feelings if she said she didn’t want to go back to her birth home. For period of time, Hannah felt she really needed to see judge. According to Ms. Hryciuk, by the time of trial, Hannah was comfortable with letting judge decide for her. [76] As set out previously, Bobby was diagnosed as having ADHD by Dr. McKenna and has had some difficulties as result. Bobby was attending school at Caswell school in Saskatoon when the initial testing for ADHD was done. Bobby was in grade at the time. There is evidence before me that Bobby had less problems at school or, as the mother stated, fewer “meltdowns” when he was on his medications. There is also evidence, however, that the mother was uncomfortable with the side- effects of Ritalin stating that “Bobby was just not Bobby”. The mother testified that she would stop providing the medication as she didn’t like to see Bobby “flat”. [77] heard testimony from Brent Wachs, Bobby’s teacher at Caswell, for the 2006 calendar year. Mr. Wachs described Bobby as “great guy”, nice boy, who was nice to teach. Mr. Wachs testified that prior to Bobby being apprehended in March, 2006, he had many more meltdowns. It was Mr. Wachs’ belief that Bobby’s mother was not providing the prescribed Ritalin. After Bobby’s apprehension, Mr. Wachs said Bobby was totally different student. He was able to concentrate in class and seemed more settled and happy. Mr. Wachs testified that he was aware Bobby’s foster parents were providing Bobby’s medication. [78] Mr. Wachs only had one meeting with Bobby’s mother which was not pleasant meeting. The mother accused Mr. Wachs of having called Social Services. Mr. Wachs testified that he did not contact Social Services about Bobby. Mr. Wachs testified that after some discussion, the mother did calm down and they had successful meeting. [79] During Bobby’s time at Caswell school, school social worker, Lori Alderson, was assigned to assist with Bobby. Ms. Alderson became involved in January, 2006. It was Ms. Alderson that initially dealt with the issue of Bobby’s medication. Ms. Alderson testified that the school believed medication was required because of Bobby’s extreme behaviour. Ms. Alderson testified Bobby was crying easily, was aggressive with other children, was easily frustrated and reacted violently to direction. [80] Ms. Alderson testified that she was only able to work with Bobby with the consent of the mother. Ms. Alderson said that, initially, the mother objected to any involvement of social worker, advising Ms. Alderson that she wasn’t comfortable. Eventually, Ms. Alderson did assist and was instrumental in having Bobby commence his Ritalin prescription. [81] Shelly McConnel-Harder is teacher at River Heights School in Saskatoon. Bobby was registered for school at River Heights for the fall of 2007. At the time, Bobby was in the care of Margaret Claypool where he had resided since his apprehension in March, 2006. [82] Ms. McConnell-Harder testified that Bobby was struggling with his school work although Bobby was trying very hard. According to Ms. McConnell-Harder, Bobby was in grade class but was doing modified program including reading at grade 2-3 level and math at grade 3-4 level. With regard to Bobby’s behaviour, Ms. McConnell-Harder noted no behavioural concerns stating that Bobby was cooperative and respectful. Ms. McConnell-Harder described Bobby as being quiet child, much more of follower than leader. Ms. McConnell-Harder advised that due to Bobby’s academic difficulties, an educational assistant was assigned to work with Bobby. [83] As set out above, Bobby has been in the home of Margaret Claypool since his apprehension in March 2006. Ms. Claypool’s home is therapeutic foster home located in Saskatoon. [84] Ms. Claypool advised that Bobby adjusted well to her home and, with the exception of one “meltdown”, in the first couple of days at her home, Bobby has not had behavioural problems. Ms. Claypool provides Bobby with slow release Ritalin to assist with his ADHD. [85] Ms. Claypool testified that Bobby talks great deal about his sister Hannah. According to Ms. Claypool, Bobby really missed Hannah when he first came to Ms. Claypool’s home. He told Ms. Claypool that it was Hannah who always said goodnight and got him up in the morning for breakfast. Bobby also told Ms. Claypool that Hannah gave him his medications. Bobby also disclosed to Ms. Claypool that he had broken into home, on the west side of Saskatoon, and got caught. heard evidence regarding this criminal activity from number of witnesses. [86] In late August 2005, when the mother was attending school full time, Bobby got into some trouble with another boy. Apparently, Bobby broke into woman’s home and vandalized the home. It appears the mother dealt appropriately with Bobby’s behaviour. The mother had meeting with the police and insisted that Bobby apologize to the woman whose home he entered. According to the mother, she also applied for counsellor at mental health but couldn’t get an appointment until the spring of 2006. Bobby was apprehended prior to proceeding with counselling at mental health. [87] Ms. Claypool testified that Bobby was not, now, running with bad crowd and he understands that stealing is wrong. Bobby is respectful of the other children’s rooms and never takes anything from the other children. Ms. Claypool fosters five children in total. With respect to the Ritalin, Ms. Claypool testified that she does not maintain Bobby on the Ritalin during summers or week-ends as he seems to have enough activity during those times. Ms. Claypool utilizes the Ritalin for school days. [88] Ms. Claypool testified that she would be willing to care for Bobby on long-term basis. Ms. Claypool testified that Bobby has become an important member of the family and that Ms. Claypool would not request any change with respect to Bobby’s residency. The Experts [89] The Ministry referred the mother to Dr. Jo Nanson, registered doctoral psychologist, for psychological assessment. Dr. Nanson prepared the assessment, dated September 9, 2006, as well as an updated report dated January 2, 2008. At the time Dr. Nanson prepared her first report, the mother was continuing to live with the father of Katie and Hannah, S.T. By the time Dr. Nanson completed her second report in January of 2008, the mother was involved in new relationship with man by the name of P.Y. The mother and P.Y. started dating in November 2006 and commenced common-law cohabitation relationship in January 2007. [90] Dr. Nanson was qualified as an expert without objection from the mother’s counsel. Dr. Nanson was qualified to give opinion evidence in the area of parenting assessments and clinical psychology. Her report, and more specifically, her recommendations therein, were arrived at after Dr. Nanson met and tested the mother and observed supervised visit with the children, the mother and S.T. Dr. Nanson also reviewed the investigation record of the Minister regarding this family. [91] Dr. Nanson administered the Personality Assessment Inventory (“PAI”) and indicated that the mother provided valid profile. To clarify, there was no evidence that the mother was responding randomly or appeared to be creating an inflated impression of herself. According to the clinical scales, the mother has high level of paranoia and borderline features. The mother has poor control over her emotions and has intense angry outbursts. The mother is angry and suspicious and, at the same time, anxious and needy. Unfortunately, the mother blames her children for being in foster care, feeling that they have abandoned her. Dr. Nanson testified that her reading of the PAI is that the mother’s profile belongs in the category of borderline personality disorder. Such disorder, according to Dr. Nanson, is not treatable with medication and is difficult to treat in psychotherapy. Dr. Nanson’s report indicates that psychotherapy requires long-term skilled therapy and the client needs to be open to change. At the time of her first report, Dr. Nanson reported that the mother was not willing to change, nor did the mother see any need to change. [92] Dr. Nanson reported that the complexity of the parenting that the mother’s children require needs to be understood. Dr. Nanson states, at p. 11 of her report, dated September 9, 2006 as follows: .. [Katie] requires constant supervision and cannot be left unattended for minute, while awake. She has no awareness of danger and no hearing. She requires help with all activities of daily living; dressing diapering, feeding etc., just like toddler. She is likely to remain at this level for the remainder of her life. [Hannah] and [Bobby] are emotionally needy and also demand great deal from [the mother]. [The mother] has few emotional resources of her own, and has little experience from her own childhood of adequate parenting. She has complex health needs of her own, which she does not accept or understand. According to Ms. Raczynuski, [the mother] has difficulty establishing and maintaining household routine, with regular meals, bedtimes, etc. Both she and her children need this level of structure. suspect that [the mother] has only experienced this type of structure when she was in foster care, and therefore reacts negatively to any attempt to re-create the conditions of foster care. [93] Dr. Nanson further concludes that the mother appears locked into an angry rebellious state of development that most people leave behind in their mid to late teens. According to Dr. Nanson, the mother lacks the insight to understand that she is the author of much of her own misfortune. Further, and importantly, the mother depends on Hannah for emotional support and to act as co-parent for the other children. [94] According to Dr. Nanson, the mother made it clear to Dr. Nanson that she would not accept either the Minister or court limiting her access to S.T. The mother did not see S.T. as risk to the children. This is no longer an issue as S.T. is no longer in the mother’s or the children’s lives. [95] Dr. Nanson concludes her September 2006 report with the following recommendation: would recommend that the three children remain in care, until [S.T.’s] health status is clearer. If [the mother] chooses to remain with him once he is well again, then her contact with her own children should be limited to supervised visits. If she can establish home without him and remain out of another violent abusive relationship for period of six months, then consideration could be given to returning the children to her gradually; [Hannah] first for period of no less than three months, then [Katie] for another three months, and finally [Bobby] if she is coping with the other two adequately. Independent assessment of the children and close monitoring of their school placements will be needed during this time. [Bobby] is the highest risk child in the family because of his acting out behaviour, and the fact that he is the product of violent abusive relationship. [96] It is clear that Dr. Nanson believed re-unification of the children with their mother was possible. However, certain steps would need to be taken by the mother before re-unification commenced. Dr. Nanson’s recommendations changed somewhat after her review of this matter in early 2008. [97] In early 2008, Dr. Nanson again asked the mother to complete the PAI. The mother’s profile showed considerably less psycho-pathology than on the previous assessment. However, Dr. Nanson’s report indicates that the mother’s highest clinical evaluation continued to be on the borderline scale. The mother continued to show clinically significant elevations on subscales for negative relationships and self-harm. In addition, her treatment scales indicate the mother has high levels of aggression with irritability and quick-temperedness. [98] Dr. Nanson summarized the mother’s status in January 2008 as being one of continuing to struggle with authority figures and lack of insight into her own contributions to her current situations. Dr. Nanson concluded, at p. 11 of her report, as follows: do not feel that [the mother] is ready to resume full time parenting of any of her children at the present time. would concur with the recommendations of Dr. Farthing’s report that she has individual psychotherapy with therapist experienced in treating personality disorders. This would have to be individual psychotherapy, rather than the generic group programs which [the mother] has attended in the past and plans to attend in the future. While concur that the family therapy would be useful for [the mother] and her two younger children, this in and of itself would not be sufficient psychotherapy for Sarah to modify some of her personality traits, which continue to get her into difficulties as parent, and in her relationship with the Department of Social Services. continue to be concerned about [the mother’s] physical health and her cavalier attitude towards the management of her Type diabetes. Contrary to what she told Dr. Farthing, there was objective evidence during my assessment that she was not monitoring her blood sugars on regular basis and was not making an effort to change her behaviour in response to abnormal blood sugar levels. She remains at high risk for adverse consequences of Type diabetes. would recommend that [the mother] have minimum of one year individual psychotherapy with therapist experienced in treating personality disorders before consideration is given to returning her children to her. [99] In her conclusions as set out above, Dr. Nanson refers to Dr. Farthing’s report, report submitted into evidence by the mother. deal with Dr. Farthing’s report later in this judgment. [100] While testifying at trial, Dr. Nanson said that she was delighted to find out that the mother’s three children were continuing in the same foster homes where they were initially placed when apprehended in March, 2006. Dr. Nanson talked about stability for the children and stressed that there should be no attempt to move any of the children back into the care of the mother until the mother had participated in intensive therapy for period of at least one year. It was Dr. Nanson’s opinion, however, that given the age of the three children, and all the circumstances of this matter, the recommendation of the Minister for long-term order for each of the three children is preferable choice for the children. [101] Under cross-examination, Dr. Nanson indicated that she had real concerns about Hannah going back into the home of the mother as she believed that Hannah would revert to parenting Katie and Bobby. Further, Dr. Nanson testified that supervised visits should continue for the mother but that unsupervised visits could be considered in the future. Dr. Nanson remained concerned about the mother’s anger and the possibility that the mother may promise the children future that may not come true. Thus, her recommendation is for continued supervision, for now. With regard to the two children of S.T. having contact with S.T., Dr. Nanson believed it was very important for Hannah to see S.T. before he dies. Dr. Nanson recommended that any visitation be supervised and set up appropriately so that Hannah understands more about S.T.’s illness and could handle the visit. Dr. Nanson did not think it was as important for Katie to see S.T. [102] Dr. Gerry Farthing prepared psychological report regarding the mother and noted that, as result of psychologically assessing the mother, he was able to make specific recommendations about her psychological functioning as it pertains to the capacity to parent the three children. Dr. Farthing’s report was prepared between April 20 and May 30, 2007. Counsel for the mother requested the report. In preparing his report, Dr. Farthing reviewed affidavits previously filed by the worker, Christine Kelleher (formerly Raczynski). In addition, he met with the mother, her current common-law partner, P.Y., and attended supervised visit. Like Dr. Nanson, he administered psychological tests including the PAI administered by Dr. Nanson. [103] During his interview of the mother, he spent some time discussing with the mother her current relationship with P.Y. As set out on page 10 of his report, Dr. Fathering relates that the mother stated she likes P.Y. because they like to use marijuana together and he is not abusive. The mother advised Dr. Farthing that she is now comfortable with the men in her life because they are not violent or abusive whereas the men in her past, Bobby’s father, J.W., and her husband, J.M., were both abusive. [104] The mother told Dr. Farthing that she had hopes to complete an automotive mechanic’s course at Kelsey. The mother says she was in the course but her schooling was interrupted by the apprehension of the children. The mother believes she was trying to better herself by taking automotive training and was so interested in her course that she let some complaints regarding the children slip by her without attending to them. The mother told Dr. Farthing that she was angry that her plan to better herself was interrupted by the Ministry. [105] Dr. Farthing interpreted the various tests he conducted with the specifics of the results being set out on pages 15 to 21 of his report. He summarized the test data by stating that the mother demonstrated her personality functioning is characterized by difficulties. According to Dr. Farthing, there are indicators of Axis II diagnosable personality problems. From the MMPI-II, Dr. Farthing states that the mother may show impulsive behaviour, rebelliousness and poor relationships with authority figures. From the MCMI-II, the interpretation is that she has histrionic-like disorder or at least strong personality traits. Dr. Farthing states that her anti-social outlook makes her unwilling to trust others. [106] Dr. Farthing recommends the mother attend therapy before the mother’s children be returned to her care. He was also of the view that she should commence school immediately and not wait until she has completed therapy and the children are moved back into her care. It was Dr. Farthing’s belief that it would be valuable for the mother to complete schooling so as to provide her with more confidence and become better role model for the children. He did not agree with the mother’s plan that she should stay at home, undertake therapy, start parenting the children, then proceed on to school. [107] According to Dr. Farthing, and as set out on page 31 of his report, the ideal scenario for the mother is as follows: The ideal scenario for [the mother’s] current functioning is as follows. She should be enrolled full time in her automotive course with proper child care in specialized settings for after-school programming. She should have stable consistent relationship with no violence. She should be trained in the areas of current parenting deficits identified in the observations of he [sic] visits with the children and she should accept that she has deficits in personality functioning. She should have at least one weekend night of respite care, preferably by her mother if her mother’s health permits. She should have Parent Aid for Saturdays. She should recognize her tendency to be flippant with authority and work on her ‘my way of [sic] the highway attitude. She needs to accept that her children may have been helped considerable [sic] by the foster parents and that domestic violence is very bad for them. She should be assisted to obtain her treaty status if that, indeed, is her birthright. Many of the problems she has encountered with violent men are likely poverty related in that she does not have resources other than her own home to pursue her sexual interests and that has lead her to take risks by bringing men into her home early in her assessment of them. And of course, there is the history of “saving money” if “friends” live together. [108] In his testimony at trial, Dr. Farthing testified that he was somewhat more optimistic about the mother’s ability to change than Dr. Nanson. He did, however, acknowledge that if the Minister, or this Court, had any doubt, it should be resolved in favour of the children. He acknowledged that, as far as he was aware, the children had progressed well in foster care. It was Dr. Farthing’s view that if was to order re-integration of the children into the mother’s home, the integration should be monitored with the Ministry having the ability to make quick decisions about the children remaining in the mother’s care. Dr. Farthing suggested that he would not immediately move the children into the mother’s care. Although he might move them into her home somewhat quicker than recommended by Dr. Nanson, he would still want to see that the mother has started intensive therapy before slow integration is attempted. [109] Dr. Farthing also prepared psychological assessment of S.T. The assessment, dated December 16, 2007, was submitted into evidence. However, there was little testimony regarding S.T. given he is no longer in the picture. do not intend on reviewing the report on S.T. other than to note that Dr. Farthing had concerns regarding S.T.’s possible abusive behaviour to children. Although Dr. Farthing did not conclude that S.T. would be abusive to children, he noted that S.T. demonstrated past “overdoing” of punishment for which S.T. was adamant he did nothing wrong. Dr. Farthing concluded that S.T., if he was going to be involved in the children’s lives, should receive assistance around anger control and impulsive behaviour. The Mother and her Family [110] Some information about the mother’s early childhood and family of origin has already been included in the facts as set out above. However, the mother provided significant evidence during her time on the witness stand regarding her feelings about the Minister and about her plans for the future. In addition, heard from the maternal grandmother and from the mother’s current common-law partner, P.Y. [111] It is clear that the mother has strong dislike of the Ministry and that her dislike of the Ministry goes back to her own mother’s feelings about government involvement in family life. The maternal grandmother had very difficult childhood. The grandmother was apprehended and placed in foster care when she was approximately two years old and was both physically and sexually abused in various foster homes. She was adopted at the age of 10 and later became involved with drugs and alcohol. The grandmother has been clean since 1974, year prior to the birth of her first child, the mother in the matter before me. Given the grandmother’s past involvement with Social Services, it is not surprising that the grandmother has strong dislike of the Ministry. Further, the grandmother acknowledged that it was possible her hatred of the Ministry has flowed to her daughter. [112] The mother was of the view that there was no reason for the Ministry to apprehend the children in March, 2006. The mother admitted that S.T. came back into the children’s lives in the summer of 2005 and that she allowed him to move in with her and the children. She further acknowledged that S.T. breached condition of his release from jail, on the charge of assaulting child, and was re-arrested and jailed again. When he was released in late January, early February, 2006, the mother says she let him come back into the home partly because Hannah wanted him to live with the family. According to the mother, she told Hannah that S.T. might not be around much as he might be in jail sometimes. The mother explained she was simply preparing Hannah for possible disappointment in the future. [113] The mother admits that she signed an agreement with the Ministry that S.T. could have supervised access only with the three children. The mother says she fully intended to follow through with that agreement but admits she didn’t do so. The mother didn’t see S.T. as threat to the children as S.T. was never physically abusive to the mother nor was he physically abusive to Katie, Hannah or Bobby. It appears the mother knew that S.T. was spending time with the children unsupervised but didn’t feel it was concern so she didn’t feel it was necessary for the Ministry to apprehend the children. The mother testified that after the children were apprehended in March, 2006, she initially had visits once per week which increased to two visits per week for two hours at time. The mother acknowledged that the visits were decreased to once per month for period of two hours because the mother threatened to physically harm the worker, Ms. Arcand. [114] As set out in my discussion of the expert testimony in this matter, the mother was attending an automotive mechanic’s course in the fall of 2003 when the three children were first apprehended due to the injuries to Katie. It was during this period of time that the mother was residing with J.M. The mother quit attending the course as result of the children’s apprehension. The mother started the automotive mechanic’s course, once again, in September, 2005. During this period of time, she was living with S.T. The mother stopped attending the course in March, 2006 when the children were apprehended for the second time. At the time the mother stopped attending, she had completed seven months of 10 month course. [115] On the evidence before me, it is clear that the mother believed that the two apprehensions, both occurring while she was in school, were an attempt by the Ministry to ensure that the mother never completed her schooling. The mother told number of people, including Hannah, that the Ministry had plan to stop the mother from getting an education. The mother accepts, now, that there was no such plan. However, the mother remains of the view that the apprehension in March, 2006 was not necessary. [116] The mother says that she wants to complete the Kelsey course and, in fact, she was registered for the fall 2006/spring 2007 session. The mother says she didn’t attend because she was in and out of court regarding the apprehension of the children. However, the mother went on to testify that she can’t return to school until she has paid back both student loans outstanding from her two attempts at completing the automotive mechanic’s course. [117] With respect to where the mother would live, if the three children were returned to her care, the mother isn’t sure. The mother says she does not want to live at the grandmother’s home as her brother, Will, has temper problem and it simply wouldn’t work to reside with him. The mother acknowledges that she has moved constantly since the children were apprehended, having lived in eight different places from December, 2007 to January, 2008. Further, there is evidence before me that, while raising for the children, the mother and the children moved from home to home necessitating move from school to school for the children. [118] In addition to unstable living arrangements, the mother has had numerous relationships, most of which have been abusive. The mother was with S.T. for five years and then again for approximately six months before the children were last apprehended. The mother had relationship with J.W., Bobby’s father, for short period of time. The mother admits that J.W. was physically abusive. The mother then had relationships with two other men, P. and T. According to the mother, T. was verbally abusive. The mother then had relationship with J.M. for three years. The mother characterized this relationship as abusive. Finally, the mother is now living with P.Y. The mother says that P.Y. is not abusive and that he would be good care giver for the children if they were returned to the mother’s care. [119] P.Y. testified and seemed like nice man, although nice man with problems. P.Y. has criminal record for break/enter/theft dating back to 1996 and fraud conviction in early 2007. P.Y. testified that he has children from previous relationships, two of whom he sees and one he doesn’t. His two oldest boys live with his parents and have lived with them for approximately 12 years. P.Y. said he would be willing to assist the mother with the care of the children and he is willing to take whatever classes or courses the Ministry may suggest be taken. [120] The mother was questioned about her care of Katie, Hannah and Bobby. With respect to Katie, the mother said Katie was hard to look after but after Katie started on the drug, Risperdal, her behaviour seemed to get better. The mother appeared to brush off questions regarding her inattention to Katie’s hearing aid and leg splints, saying the hearing aid didn’t work lot of the time and was frustrating for everyone. As regards the lice in Katie’s hair, accept the mother’s evidence that she tried to deal with the lice on number of occasions. Unfortunately, the mother found it difficult because Katie would fight her when she was attempting to pick out the nits. The mother testified that she wasn’t aware of any nits in Katie’s hair in and around the time of Katie’s apprehension. [121] With respect to Hannah, the mother admitted that Hannah assisted the mother with the care of both Katie and Bobby. The mother suggested that it was nothing more than helping out and that Hannah had good social life away from the home. The mother admitted that Hannah did “good portion” of changing Katie’s diaper and did assist in the mornings by getting breakfast ready or helping Katie dress. [122] With respect to Bobby, the mother admitted that she didn’t like having Bobby on Ritalin and, for long time, she would simply stop giving the medication to him. The mother acknowledged that in February, 2006, she was contacted by the school social worker about Bobby’s Ritalin. The mother acknowledged she had “let it go” as she felt that she just wanted “Bobby to be Bobby”. [123] The mother said she was surprised to find out that Bobby was in trouble with the law. The mother did, however, acknowledge that Bobby roamed the streets when he was approximately nine years old because the mother was attending school and couldn’t keep full track of him. As stated earlier, the mother did behave appropriately when the break and enter was brought to her attention. [124] The mother has taken some steps since the children were apprehended to become better parent. have evidence that the mother completed 10 week course of anger management from Mid-October to Mid-November, 2007. It is important to note that the mother took this course without being directed to do by the Minister. In addition, the mother completed Boundaries course from September, 2007 to the end of November, 2007. The mother said that this course taught her how to create healthy relationship with someone and that you shouldn’t trust anyone until you have known them at least one year. [125] In addition to the courses as set out above, the mother made an appointment at mental health and saw Nancy Jones once. The mother expressed interest in attending for psychotherapy, as recommended by both Dr. Nanson and Dr. Farthing. The mother said she didn’t know where to go for the psychotherapy and hadn’t really looked into it. [126] The mother said that if the children were to come back into her care, she would not go to school for awhile but would take therapy and look after the children. It was the mother’s view that Katie could be moved into school in Saskatoon, as could Hannah. The mother felt it would be best for Katie to come home first even though both Dr. Nanson and Dr. Farthing thought it might be best for Hannah to come home first. [127] The mother ended her testimony by telling me that she would do whatever it took to get her children back. When asked what she would do regarding visiting the children if left them in the care of the Minister, she said she would never abandon her children. She testified she would continue to visit regularly. As to when she believed the children should be returned to her, the mother wanted the children back immediately. She then said she knew it wouldn’t happen overnight because she had work to do. [128] The grandmother also testified that she would never abandon the children. It was the grandmother’s testimony that, even if were to leave the children in foster care, the grandmother would always visit and would always be there for the children. THE INTERIM ORDER [129] After hearing argument on January 18, 2008, made an interim order, pursuant to s. 35 of the Act. My interim order reads as follows: am reserving my decision in this matter. However, am making the following interim order, pursuant to s. 35, which interim order shall remain in place until my final decision is rendered: 1. The children, [Katie] and [Hannah], shall remain in the care of the Minister of Social Services, and in their current foster home; 2. The child, [Bobby] shall remain in the care of the Minister of Social Services, and in his current foster home; 3. The mother [S.D.], will continue to have supervised access with all three children. However, the mother’s access shall be increased to every second week, with each visit being for period of two hours. The maternal grandmother, [S.D.,Sr.], may attend the visits, as well as the mother’s brothers, [W.] and [J.], as long as these visits remain in the best interests of the three children. During the visits, no one is to discuss this trial, or the possible future living arrangements of the children, with the children, or in front of the children. 4. Arrangements shall be made for the child, [Hannah], to have one supervised access visit with her father, [S.T.], which visit shall take place as soon as reasonably possible, given [S.T.’s] precarious health situation. 5. In the event any of the above becomes unworkable, prior to my final decision being rendered, leave is granted to return this matter to me by telephone conference call. [130] determined, after hearing all the evidence at trial, that the mother should have increased access to the children. As set out above, ordered the mother’s access to be increased to every second week for period of two hours. In addition, determined that Hannah should have supervised access visit with her father, S.T. was persuaded by the evidence that Hannah should see her father before his death. As set out in my interim order, advised that the matter could be brought back before me if any of the access became unworkable. did not hear anything further from counsel for the Ministry or counsel for the mother. am, therefore, assuming that the increased access for the mother commenced and that arrangements were made for Hannah to see her father. LAW AND ANALYSIS [131] It is well established that child protection proceedings involve two step process. As stated by McIntyre J. in Saskatchewan (Minister of Social Services) v. E.K.S, D.W. and C.S (1997), 1996 CanLII 7131 (SK QB), 146 Sask. R. 46, (QB) at para. 40: [40] ... First, there must be a determination pursuant to s. 36(1) as to whether the child is in need of protection as that term is defined in s. 11. If it is determined that a child is in need of protection the next step is to determine the appropriate order among the options contained in s. 37. [132] The mother argues that none of the children were in need of protection, pursuant to s. 11 of the Act, at the time of their apprehension on March 2, 2006. The mother says that the Ministry did not have adequate evidence that any of the children had suffered, or were likely to suffer, physical harm if they remained in the care of their mother and S.T. disagree. The Minister became aware that S.T. had resumed cohabitation in the home of the mother and the children. The Ministry then became aware of S.T.’s criminal conviction for assaulting the child of his previous common-law partner. The Minister reviewed the circumstances of the assault, which was essentially an “over correction” of child while the child was in S.T.’s care. S.T. was incarcerated for period of time as result of his conviction and subsequently breached his release conditions such that he served more time. Based on this information, the Ministry had legitimate concern that S.T. may pose risk to Katie, Hannah and Bobby. The Ministry acted appropriately by requesting the execution of PSA with condition therein that S.T. not have any unsupervised time with Katie, Hannah or Bobby. [133] The Ministry had evidence that S.T., and the mother, breached the terms of the PSA. They received information from the school, neighbours, the children, and importantly, the mother herself, that S.T. was having unsupervised contact with the children. The Ministry then proceeded to apprehend the children in light of their concern regarding possible harm to the children at the hands of S.T. I find that the Ministry made an appropriate determination that the children were in need of protection as a result of the failure of S.T. and the mother to comply with the PSA. The Minister had evidence that it was “likely” the children may suffer physical harm. [134] If I am wrong in my determination that s. 11(a)(i) is applicable in the matter before me, I find that all three children were in need of protection pursuant to s. 11(v), (vi) and s. 11(b) of the Act. Those subsections read as follows: 11 child is in need of protection where: (a) as result of action or omission by the child’s parent: ... (v) the child’s development is likely to be seriously impaired by failure to remedy mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur ... [135] Although the Ministry proceeded to apprehend when they discovered that S.T. was having unsupervised time with the children, there were other problems in the mother’s home. The Ministry had been involved with the mother on and off for years. The Ministry had evidence that the mother was having difficulties caring for the two children, Katie and Bobby, who had special needs. The mother’s actions could have, and likely did, impair the development of the children. Further, with respect to domestic violence, the mother herself characterized her relationship with S.T. as emotionally abusive. She testified that when she separated from S.T. shortly after the birth of Hannah, she was pleased that he was leaving as he was emotionally and verbally abusive and she couldn’t stand the arguing anymore. There is no dispute that the children had been exposed to this domestic disharmony between the mother and S.T. and the Minister had legitimate concern about S.T. reappearing in the mother and children’s lives. Finally, having reached conclusions that there was risk to the children, the Ministry determined that there was no other adult person able or willing to provide for the children’s needs as set out in s. 11(b) of the Act. [136] The mother argues that if conclude the children were in need of protection in March, 2006, should, on all of the evidence before me, conclude that the children are no longer in need of protection. The mother argues that she is no longer in relationship with S.T., has managed to stay out of any violent relationships for considerable period of time, and has taken some classes to better her parenting skills. Again, disagree. [137] acknowledge that the mother is no longer with S.T. and that any risk associated with S.T. no longer exists and will not exist in the future. S.T. has been taken out of the picture by his diagnosis of terminal cancer. note that the mother did not make conscious decision to remove S.T. from the children’s lives. In fact, in her initial sessions with Dr. Jo Nanson, the mother attempted to convince Dr. Nanson that S.T. did not pose risk to the children. The mother was still of the belief that S.T. could remain living with her and the children. It is S.T.’s illness, not the mother, who has taken S.T. out of the picture. [138] also acknowledge that the mother appears to be in relationship with man who is not abusive to the mother. Further, after having heard the testimony of both the mother and P.Y., believe the mother and P.Y. have strong relationship that is likely to last into the future. However, P.Y. has not been “tested”. P.Y. has not experienced the difficulties of parenting the mother’s three children, two of whom have severe problems. Further, P.Y.’s own history of parenting is not positive. P.Y. chose to have his parents look after his oldest two children and P.Y. has no contact with his youngest child. [139] I must determine whether there has been sufficient change since March, 2006 so as to conclude that the children are no longer in need of protection and can immediately be returned to the mother’s care. Unfortunately, cannot reach that conclusion. Indeed, the mother herself acknowledged that it would be a slow process regarding unification of the children into her home. [140] Although commend the mother for having taken the two courses, namely, anger management and Boundaries, in the fall of 2007, the mother has more work to do. The mother has not yet commenced psychotherapy which has been recommended by both Dr. Nanson and Dr. Farthing, the mother’s own expert witness. must question why the mother did not commence therapy at some point after receiving Dr. Nanson’s report, and why she waited until just before trial to take any parenting classes. It is my view that the mother continues to object to suggestions made by the Ministry to improve her parenting abilities. Although the mother appears to have come some distance in understanding she has problems, the mother continues to resist recommendations for change. She continues to fight the Ministry as opposed to cooperating with the Ministry. For these reasons, and the reasons set out above, I find that Katie, Hannah and Bobby continue to be children in need of protection pursuant to s. 11 of the Act. [141] Having concluded that the three children continue to be children in need of protection, now turn to consideration of s. 37 of the Act. The Ministry seeks an order pursuant to s. 37(3) that the three children be placed in the custody of the Minister until each child attains the age of 18 years. The mother says that more appropriate order would be short term supervisory order pursuant to s. 37(1)(a) of the Act. [142] While considering which option under s. 37 of the Act is appropriate, adopt the principles as set out by McIntyre J. in Saskatchewan (Minister of Social Services) v. L.P., [1998] S.J. No. 387 (QL Sask. QB) where he states, at para. 38 In determining whether any of the options in s. 37(1) are appropriate, the question is whether there is reasonable prospect of change within reasonable length of time and reasonable use of resources. ... [143] have had the advantage of expert evidence in the matter before me. Both Dr. Nanson and Dr. Farthing provided excellent reports for my consideration. Although Dr. Farthing is somewhat more positive about the mother’s ability to change and, therefore, appropriately parent, both experts conclude that significant work needs to be done by the mother prior to the children being returned to the mother’s care. Both Dr. Nanson and Dr. Farthing testified that the mother requires intensive therapy. In Dr. Nanson’s opinion, full year of intensive psychotherapy is required before the Ministry should consider reintegration of the children into the mother’s home. Dr. Farthing didn’t provide an exact time line but he, too, provided the opinion that some therapy must occur before we start to do staged integration of the three children to the mother’s home. [144] Dr. Farthing is of the opinion that the mother is ready to undertake the required therapy and will be open to change. Dr. Nanson is not so confident that the mother will follow through with the therapy plan or, if she does so, be able to make the necessary changes in order to effectively parent. Given the overwhelming evidence that the mother has been resistant to change in the past, and her past extreme dislike of Ministry involvement, to the point of threatening workers, have some doubts as to whether the mother can succeed. This is not to say that the mother is being dishonest when she says she will do anything possible in order to have her children returned to her. The mother loves Katie, Hannah and Bobby and she has been, and continues to be, devastated as result of the children’s apprehension. Unlike some parents, the mother has not missed access visits with the children and has remained an integral part of the children’s lives. have evidence before me that all three children love their mother and want to continue to spend time with their mother. However, I also have evidence that the children are doing extremely well in their current foster placements. [145] fear that Katie will regress if she is returned to the mother’s care. Since Katie has been in the Saccucci home, she has shown huge improvement in her behaviour. also have evidence that Katie’s medical and hygienic needs are now being met. With respect to Hannah, Hannah is now, according to all the evidence, confident child, with emphasis on the word “child”. conclude on all of the evidence that Hannah was, in fact, parentified in the home of the mother. It was Hannah that provided much of the care for Katie and Bobby which is an inappropriate role for Hannah to have played. have concerns that if place Hannah back in the care of her mother, Hannah will once again assume the role of parent to Katie and Bobby as opposed to playing the role of sibling. It is my view that Hannah is finally, for the first time in her life, focusing on Hannah as opposed to her mother or her siblings. Finally, with respect to Bobby, it is clear that Bobby is doing very well in the home of Ms. Claypool and, while not excelling at school, is doing much better than he has in the past. Further, Bobby has adequate supervision and has not been in any trouble with the law since his apprehension. have concerns that placing Bobby back in the home of the mother would de-stabilize child who requires stability and consistency. [146] In this case, the age of the three children is a critical factor. The children are now 15, 14 and 12 years old. There is not much time for the mother to take all the necessary steps she needs to take before the children are returned to her and the time the children will be reaching the age of 18 years. [147] The mother has argued that the principles as set out by Baynton J. in M.A.C. v. Saskatchewan (Minister of Social Services) (1993), 1993 CanLII 9025 (SK QB), 110 Sask. R. 81 (QB) are applicable to the case before me. was referred to paragraphs 38 and 39 of Baynton J.’s decision which read as follows: [38] Section 37 sets out the kinds of orders that can be made by the court once it has been determined that the child is in need of protection. It is obvious that they are designed with ss. and in mind. Wimmer, J., in D.S. v. Saskatchewan (Minister of Social Services) (1993), 1993 CanLII 8947 (SK QB), 108 Sask. R. 107 (Q.B.), reviewed the purpose of the Act and in particular s. 37. He states: “It is evident from s. 37 that only as last resort should parent be permanently displaced.” He also states: “Within all of this lies the quest for what will serve the best interests of the child.” [39] An order granting custody of the child to the Minister for another nine years is relatively permanent one, even though it can be reviewed under s. 39. am not satisfied that the child’s well-being will be seriously prejudiced by granting the appellant one more chance to establish meaningful and responsible mother-daughter relationship. There is no apparent risk of physical abuse. Although there is the potential for further disruption as has occurred in the past, there is also the potential for salvaging the relationship to the substantial benefit of the child. [148] While agree with Baynton J.’s view that long term order is often permanent order, and that should resort to such orders only as last resort, the factual circumstances in M.A.C., supra, can be distinguished from the case before me. In the matter before me, Katie and Hannah have only few years before they will each reach the age of 18 years. Further, although Bobby is 12, and long term order would leave him in the care of the Minister for further six years, his current placement, in therapeutic home, will continue. It is in Bobby’s best interests that he stay in his current stable environment given his ADHD and need for consistency and stability. [149] The M.A.C., supra, decision can also be distinguished on the basis that the mother in the M.A.C. case was regularly attending counselling sessions, was attending Narcotics Anonymous, taking life skills and upgrading courses, and establishing network of friends within her church. The mother in the case before me has said she will take therapy and will take steps to change her life. However, the children were apprehended in March of 2006 and the mother has not progressed very far in her pursuit of change. [150] The Ministry has not pursued permanent order under s. 37(2) of the Act. The Minister takes the position that permanent order would be inappropriate as it would effectively preclude the mother from ongoing involvement with Katie, Hannah and Bobby. agree with the Minister’s position that permanent order is not appropriate in this case. There is ample evidence before me that the mother, and the grandmother, should continue to play substantial role in the lives of Katie, Hannah and Bobby. The mother and grandmother have close bond with the children and it would be harmful for the children to no longer have contact with the mother and grandmother. accept the evidence before me that Hannah has strong need to see her mother frequently, as well as spend time with both Katie and Bobby. In fact, all three children require time with their mother whom they love dearly. [151] I have reached the conclusion that an order pursuant to s. 37(3) of the Act, placing the children in the custody of the Minister until each child reaches the age of 18 years, is the appropriate order in this case. As pointed out to the mother, the mother will, with long term order, have the ability to make the necessary changes in her life and, if she does so, apply for variation of this order in the future. am hopeful the mother will immediately commence the extensive psychotherapy which has been recommended. Further, encourage the mother to complete her schooling as believe she is fully capable of obtaining diploma and full time employment. The mother is very strong person with strong views, but she presents as very intelligent and capable of, as he puts it, “bettering herself”. If the mother is able to satisfactorily progress, it may be possible for the mother to, at some time in the future, make an appropriate application for variation of my order. [152] The Ministry must continue to work with the mother with regards to the mother’s ongoing contact with the children. Although am not willing to alter my interim access order at the present time encourage the Minister to expand the mother’s access if the mother is progressing. would like to see the mother have visit with Katie and Hannah at the Saccucci’s home. would also encourage the Ministry to consider access for the mother with the three children, at the home of the mother on an unsupervised basis, at some point in the future. Finally, would encourage the Minister to make arrangements for Bobby to have an overnight visit, approximately once per month, at the home of the Saccuccis, so that the three siblings can spend time together. Hannah, in particular, requires more contact with her brother. CONCLUSIONS AND ORDERS [153] I have determined that Katie, Hannah and Bobby are children in need of protection pursuant to s. 11(a)(i),(v), (vi) and 11(b) of the Act. I am making an order pursuant to s. 37(3) of the Act that the children be placed in the custody of the Minister until each child attains the age of 18 years. With respect to access, order as follows: The mother, S.D., will have supervised access with all three children every second week for period of two hours. The maternal grandmother may attend the visits, as well as the mother’s brothers, as long as these visits remain in the best interests of the three children. The mother’s access to the children will continue to be supervised for the present time. However, assuming it is in the best interests of the children, the Minister shall proceed to some unsupervised access at an appropriate time in the future. [154] wish to express my thanks to counsel for the Ministry and counsel for the mother for their presentation of this case at trial and their helpful argument in this matter. also wish to thank the mother for her calm and respectful testimony in what realize was very stressful and emotional matter. Again, encourage the mother to proceed with the recommended therapy immediately. J. D. L. Wilson
The eldest daughter, 15 years old, her sister, 14 years old, and their brother, 12 years old, were apprehended from their mother on 2 March 2006. The Minister sought an order pursuant to s. 37(3) of The Child and Family Services Act placing the children in the care of the Minister until each child turned the age of 18 years. The mother opposed the Minister's request for long term orders for the three children, taking the position that the children were not 'children in need of protection' pursuant to s. 11 of the Act, and that the children should be immediately returned to her care. In the alternative, the mother proposed that the court make a short term supervisory order under s. 37(1)(a) of the Act, returning the children to the mother's care under supervision and conditions. The issues were: 1) whether the children were children in need of protection pursuant to s. 11 of The Child and Family Services Act; and 2) if so, the appropriate order to be made, respecting each of the children, pursuant to s. 37 of the Act. HELD: The children are children in need of protection pursuant to s. 11(a)(i),(v), (vi) and 11(b) of the Act. There shall be an order pursuant to s. 37(3) of the Act that the children be placed in the custody of the Minister until each child attains the age of 18 years. There shall also be an order with respect to access. It is well established that child protection proceedings involve a two step process. First, there must be a determination pursuant to s. 36(1) as to whether the child is in need of protection as that term is defined in s. 11. If it is determined that a child is in need of protection the next step is to determine the appropriate order among the options contained in s. 37.The Ministry had a legitimate concern that, based on a prior conviction for assaulting the child of a previous common-law partner, the mother's common-law partner posed a risk to the children. The Ministry acted appropriately by requesting the execution of a parental services agreement (PSA) with a condition therein that her partner should not have any unsupervised time with them. The Ministry had evidence that the partner and the mother breached the terms of the PSA. They received information from the school, neighbours, the children and, importantly, the mother herself, that the partner was having unsupervised contact with the children. The Ministry then proceeded to apprehend the children in light of its concern regarding possible harm to the children at his hands. The Ministry made an appropriate determination that the children were in need of protection as a result. If the court is wrong in the determination that s. 11(a)(i) is applicable, it finds that all three children were in any event in need of protection pursuant to s. 11(v), (vi) and s. 11(b) of the Act. The Ministry had evidence that the mother was having difficulties caring for the two children with special needs. The mother's actions could have, and likely did, impair the development of the children. Further, with respect to domestic violence, the mother herself characterized her relationship with the partner as emotionally abusive. Finally, having reached conclusions that there was risk to the children, the Ministry determined that there was no other adult person able or willing to provide for the children's needs as set out in s. 11(b) of the Act. The mother argues, in addition, that the children are no longer in need of protection. Thus, the court has to determine whether there has been sufficient change since March 2006 so as to conclude that the children are no longer in need of protection and can immediately be returned to the mother's care. Unfortunately, the court cannot reach that conclusion. Indeed, the mother herself acknowledged that it would be a slow process regarding unification of the children into her home. The mother continues to object to suggestions made by the Ministry to improve her parenting abilities. Although the mother appears to have come some distance in understanding she has problems, she continues to resist recommendations for change. She continues to fight the Ministry as opposed to cooperating with it. For these reasons, and the reasons set out above, the children continue to be children in need of protection pursuant to s. 11 of the Act. The Ministry seeks an order pursuant to s. 37(3) that the three children be placed in the custody of the Minister until each child attains the age of 18 years. The mother says that a more appropriate order would be a short term supervisory order pursuant to s. 37(1)(a) of the Act. All three children love their mother and want to continue to spend time with their mother. However, they are doing extremely well in their current foster placements. In this case, the age of the three children is a critical factor. The children are now 15, 14 and 12 years old. There is not much time for the mother to take all the necessary steps she needs to take before the children are returned to her and the time the children will be reaching the age of 18 years. The Ministry has not pursued a permanent order under s. 37(2) of the Act. Indeed, the mother and the grandmother should continue to play a substantial role in the children's lives. An order pursuant to s. 37(3) of the Act, placing the children in the custody of the Minister until each child reaches the age of 18 years is the appropriate order in this case. The mother will, with a long term order, have the ability to make the necessary changes in her life and, if she does so, apply for a variation of this order in the future.