QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 44 Date: 2009 01 23 Docket: F.S.M. 50 of 2005 Judicial Centre: Regina, Family Law Division IN THE MATTER OF HEARING UNDER THE CHILD AND FAMILY SERVICES ACT, AND IN THE MATTER OF N.S., BORN […] 2005 D.S., BORN […] Counsel: Jill Drennan for the Ministry of Social Services Bruce K. Campbell representing N.O.S. H.H. representing herself JUDGMENT OTTENBREIT J. January 23, 2009 INTRODUCTION [1] H. H. is the mother of two children, N.S. and D.S. N.O.S. is the father of the children. The Ministry of Social Services (the Ministry) seeks a six month order pursuant to s. 37(c) of The Child and Family Services Act, S.S. 1989-90, c. C-7.2 (the “Act”) with respect to the two children. Both H.H. and N.O.S. appeared at the hearing. Although N.O.S. was represented, H.H. was not. N.S. was born […] 2005 as shown on Exhibit P-1-Tab A-1 and is nearly four years old. D.S. was born […] 2007 as shown on Exhibit P-1-Tab A-2 and will soon be two years old. [2] D.S. was apprehended by the Ministry when he was born. Both N.S. and D.S. were the subject of consent order for six months on October 2, 2007. Both children have been in care for most of their lives. The Ministry requests a six month order with a proviso that it be for the purposes of allowing the Ministry to make long term placement plans for both children. [3] H.H., the mother, is not seeking a return of the children to her directly but supports the position of N.O.S., the father, who asks that the children be returned to him in his care. N.O.S. proposes that he will continue living with the mother H.H. and the children while the mother first attends to getting her addiction problems under control and then he proposes to address his own addiction problems. [4] The Ministry filed book of documents marked Exhibit P-1 with each document tabbed therein. References to tabs refer to this exhibit. HISTORY OF THE PARENTS [5] N.O.S. was born on […] 1986 in Regina. N.O.S. presently lives with his father on the […] First Nation. He grew up on the […] First Nation just north of Regina and resided there with his father until he was teenager. He has four brothers and one sister and he is third in the sibling line. N.O.S. is at the present time not working or in school. He has grade nine education and shovels snow for Elders on the reserve. He plans to return to school. N.O.S. has substantial criminal record which was tendered as Exhibit P-3 by the Ministry. This includes 16 offences as youth. His youth offences were primarily property crimes, especially vehicles, and failures to comply with the dispositions made with respect to his offences. The convictions for youth offences are dated between May of 2000 and June of 2004. [6] N.O.S. also has an adult record related to property offences but primarily related to failing to comply with recognizances and probation orders. His last conviction was in January of 2006 for which he received total of seven months incarceration. [7] N.O.S. testified at the hearing and readily admitted that in his past he stole property, took cars and committed break and enters. He indicated that his friends were doing it. [8] Although he met H.H., the mother, at an early age, they did not really establish relationship until late teenagehood when they both started going to Alcoholics Anonymous (A.A.) meetings. They started living together and both were using intravenous drugs. N.O.S. was using once every two weeks. N.O.S. became involved in gang activity when he spent time at the correctional centre and after he was released. He testified that he stopped hanging around with gang members after his daughter N.S. was born and got beat up because he left the gang. He testified he has not been involved in gang activity recently. N.O.S. and H.H. have lived together at various residences on and off since N.S. was born. [9] The Ministry called Staff Sgt. Dave Wyatt who tendered Regina Police Service computer record of police involvement with N.O.S. This shows 64 entires with respect to dealings with N.O.S. These entries include all dealings which the Regina Police Service had with N.O.S. including the times that N.O.S. was arrested and the times he was suspect. His most recent contact with Regina City Police Service was when he was arrested and charged regarding the theft of an auto on June 21, 2008. The Regina City Police Service computer records show number of calls related to domestic violence. There are, however, no charges or convictions respecting domestic violence. [10] N.O.S., on September 16, 2005, signed Parental Services Agreement (PSA) for the period September 16, 2005 to December 16, 2005 respecting N.S.. These included conditions that H.H. and N.O.S. would attend parenting program of their choice and inform the social service worker of which one and that H.H. and N.O.S. would attend Narcotics Anonymous (N.A.) or A.A. once per week. There were additional conditions that they would both find suitable housing and work cooperatively with the Ministry. N.O.S. signed another PSA on April 28th covering the period April 28th to August 28th of 2008. The purpose of this PSA was that the parents would not expose their children, in this case both N.S. and D.S., to drug use or domestic violence so the children would continue to live in safe environment and have appropriate care. This PSA is found at Tab B-27. Additionally, N.O.S. agreed to attend anger management and participate in and complete parenting class and remain drug free and provide all drug screen results as well as work with the KidsFirst Program and attend and complete treatment. [11] Respecting domestic violence, N.O.S. denies that he has ever hit H.H. and indicates that when they argue, he attempts to get away and avoid the argument. N.O.S. says that he took parenting course for approximately two months and went every Wednesday. This happened before D.S. was born. He was not able to provide any certificates that he completed any course of programming although he indicates that on the parenting course he asked for certificates but they did not provide any. He has taken and completed courses on safe food handling and cooking. N.O.S. indicates that he did not take anger management courses because there was no anger management facilitator. [12] N.O.S. has been on the methadone program since at least January of 2007. Records consisting of result report form, patient medication profile and charting records, track sheet and notes from the Harm Reduction Methadone Program are found at Tab B-32. Dr. Harris, medical doctor working at the Harm Reduction Methadone Program in Regina who was admitted as an expert in the analysis and interpretation of toxicology screens for individuals who are using methadone to overcome addictions, testified with respect to both the involvement of N.O.S. and H.H. with their clinic. The tracking sheet respecting the urine screens of N.O.S. show that since January of 2007, N.O.S. has tested positive for opiates only once in January of 2007, ritalin twice in December of 2007 and January of 2008 and cocaine three times in November and December of 2007 and January of 2008. N.O.S. has tested positive for cannabinoids consistently throughout the period between January of 2007 and the first of December, 2008 when the record ends. Dr. Harris testified that N.O.S. has been on the methadone program for some time and compared to other clients of the clinic, N.O.S. is doing very well and above the average. Dr. Harris testified that methadone is substitution therapy to help the craving for those who want to stop using intravenous drugs. Methadone is intended for opioide addictions although other addictions tend to benefit from the interaction. Dr. Harris testified that an indication of stability in the program is an indication that the patient is allowed to carry the methadone medication home. The record with respect to N.O.S. that the program counsellors have consistently trusted him to carry home his methadone medication. However, N.O.S. did have some relapses. Dr. Harris testified that single opioide screen in January and the two ritalin screens did not present any concerns to him. He indicated that N.O.S. provides screens generally twice month and the results are very consistent compared to other patients. Dr. Harris also testified that the cannabis use was not concern and that N.O.S. appears to be stable patient despite relapses. [13] Joe Vandale, who is counsellor at the Harm Reduction Methadone Program and has worked with N.O.S. and H.H., indicated that although N.O.S. has left the program the odd time, he has always come back to restart. He indicated that in March and April of 2008 N.O.S. was doing well since he was allowed to carry further doses and appeared to be given 1-6 carry schedule. Mr. Vandale indicated that N.O.S. had attempted to set up some treatment at the MACSI Centre in Saskatoon in November of 2007 but left the treatment before it was completed. N.O.S.’s explanation was that he had injured his eye and they refused to give him medical treatment. Mr. Vandale indicated that on objective indicators, N.O.S. was doing well apart from his screens. He did not seem to be avoiding dealing with matters. Mr. Vandale indicated that N.O.S. was already addressing his opiate addiction and that the next step would be attending A.A. and anger management. Mr. Vandale testified that the screens are an indicator of how well N.O.S. is doing and that he has progressed. He indicated that relapse is learning experience and not failure. It depends on what triggered it. [14] With respect to the positive screen for N.O.S. for cocaine in May of 2008, Mr. Vandale indicated that he talked to N.O.S. about this and his explanation was that he didn’t use cocaine, it was merely slip not relapse. [15] H.H. has had involvement with the Ministry with respect to the children from the date of birth of N.S. N.S. was born addicted as result of the drug use of H.H. N.S. was apprehended at birth as was D.S. H.H. did not testify and her history can only be gleaned from the documents which have been filed as exhibits and the testimony of others. [16] The registration of live birth for N.S. found at Tab A-1 shows that H.H., the mother, was born on […] 1985 at Regina. H.H. has lived with N.O.S. on and off since the birth of N.S. at various residences. [17] The Regina Police Service record for H.H. tendered by Staff Sgt. Wyatt is found at Tab B-30. This shows 122 entries dating from August of 1991 to the most recent entry in June of 2008. In May of 2008, she was arrested and charged with violations relating to no contact with N.O.S. The Regina Police Service Occurrence Record documents various dealings with H.H. either with respect to charges, arrests, as complainant or as witness. [18] H.H. has entered into number of PSA’s. The first one is dated February 21, 2005 and covered the period February 21, 2005 to May 31, 2005. It related to N.S. and as condition required H.H. to complete detox and treatment, work with the KidsFirst Program and provide drug screens. The next PSA was dated March 14, 2005 and covered the period March 14, 2005 to June 30, 2005. It required H.H. to contact Alcohol and Drug Services to complete an assessment and follow through with their recommendations. H.H. was to reside with N.S. in her mother’s residence and work with Families First and attend parenting classes. The worker at the time, Sharese Cyr, provided an assessment referral for H.H. through the Alcohol and Drug Services Regina Health District. This is found at Tab B-8 and details H.H.’s chemical use history. B-8 indicates that H.H. was 14 when she began smoking pot and doing ritalin and alcohol. She then quit for time between the ages of 15 and 16 and then began using T’s and R’s and then started using morphine then quit until the summer of 2004 when she started using morphine. It also showed that she had number of charges with respect to assault causing bodily harm and robbery and incarceration from August to October 2004. B-8 indicates that H.H.’s previous treatment was in 1992 and 1993. [19] H.H. did provide drug screens from time to time to the Ministry. The drug screen in April of 2005 tested positive for cannabinoids and benzodiazepines [20] The next PSA signed between H.H. and the Ministry is dated April 11, 2005 and covered the period of April 11, 2005 to July 11, 2005. This PSA required H.H. to continue to work with Healthiest Babies and to register and participate and complete an ADS program at an appropriate agency. [21] further PSA was entered into on April 20th covering the period April 20 to July 20. This PSA updated the one done nine days before. H.H. agreed to leave N.S. in the care of her mother when she has to leave the home. H.H. again agreed to work with someone from Four Directions Addiction Counselling. [22] Residential Services Agreement was signed by H.H. whereby the Minister would provide services for N.O.S. and assist H.H. in addressing addiction issues and preparing for family reunification. [23] On September 16, 2005 both the father and H.H. signed another PSA with the provisos that H.H. would attend addictions assessment and that both parents would attend parenting program of their choice as well as submit drug screens and attend N.A. and A.A. once per week. This PSA covered the period September 16, 2005 to December 16, 2005. During that time, H.H. provided drug screen that was positive for opiates as well as cannabinoids on September 26, 2005. [24] H.H. entered into another PSA dated January 10, 2006 with conditions very similar to past PSA’s. This covered the period January 10, 2006 to May 10, 2006. Tab B-20, long term/permanent ward form and annual review, was signed on January 24, 2007. It recommended that the Ministry apply for permanent wardship of N.S. This showed that N.S. had been in care from May 2, 2005 to January 24, 2007. The parents had weekly two hour supervised visits with N.S. at the Ministry. [25] On April 19, 2007 H.H. entered into another PSA promising to participate in parenting classes, continue with the methadone program and take other programming. This was to cover the period April 19 to August 19, 2007. The father also signed PSA dated April 28, 2008 showing the period April 28, 2008 to August 28, 2008 whereby the father agreed to participate in and complete parenting class and attend anger management as well as remain drug free and provide all drug screen results. The father also agreed to work with KidsFirst and attend and complete treatment. [26] Tab B-32 contains the Harm Reduction Methadone Program notes provided by various doctors and workers for N.O.S. These notes cover the period January 8, 2007 to December 3, 2008 and documents the father’s contact with the Harm Reduction Methadone Program. The notes indicate on October 8th that the father refused to provide screen on October 6th and left cold screen on October 7th as well as left cold screen on October 19th. Joe Vandale testified that cold screen is questionable because when the sample for the screen is given it should come out at body temperature and it is provided to the program personnel immediately. cold screen may indicate that it has been sitting too long or that it was not given at the clinic. Between the period November 11, 2007 and November 23rd, the father had number of no-shows and on November 22nd, was officially off the program. By December 11, 2007, the father was back into the clinic wanting to restart and the notes indicate that he advised that he went on binge and reported using 200 mg of morphine daily and also cocaine. There were further no-shows by the father between December 23rd and January 18th as well as various no-shows later in January and in February. [27] The note dated February 29th indicated that the father would be starting anger management and life skills courses on the Reserve on March of 2008. However, by March 3rd, the father indicated that the anger management program was cancelled due to only few candidates and he was asking to be referred to other programs. [28] The notes further indicate that on November 12, 2008, the father called to report that he was going to treatment in Lebret on November 15th. However, on the 14th he called wanting to go to MACSI as the NADAP treatment centre refused him as he was on methadone. Joe Vandale contacted MACSI in Saskatoon and they had cancellation and accordingly arrangements were made for the father to attend on November 18th for the program. [29] The Harm Reduction Methadone Program notes for H.H. can be found at B-31 and covers the period October 4, 2005 to December 17, 2008. The note on January 12, 2005 indicates that the writer arranged to have H.H. attend detox but she declined. The note dated May 24, 2006 indicated that H.H. had been on an alternate methadone program since March of 2006. On September 13, 2006, notes indicate that H.H. wanted to restart the methadone program and was referred to the Parliament Clinic. On January 8, 2007, the note indicated that H.H. came into the clinic and reported that she was using 200 mg of morphine daily. She was six months pregnant at the time with D.S. H.H. reported that she did go to detox the year before but did not manage to stay abstinent. [30] The notes indicate that H.H. had number of no-shows at the clinic in December and November 2007 and went off the program. She went off the program and had to restart. In April of 2008, the notes indicate that arrangements were made to have the parents go to MACSI in Saskatoon for 28 days but they did not go due to babysitting issues. The notes on November 26, 2008 indicate that H.H. advised that she wanted referral to detox, that she had relapsed using cocaine. number of workers had worked with both the parents. The worker who originally worked with the parents was Sharese Cyr. Ms. Cyr attended to the hospital upon N.S.’s birth. At that time, H.H. admitted to using IV ritalin and marijuana prior to the birth. At that time, when H.H. was in the hospital with N.S., Ms. Cyr spoke to her about plan for drug and alcohol treatment and talked about options. At that time, H.H. was noncommital regarding treatment. The Ministry decided that N.S. would be discharged to H.H.’s care under PSA dated February 1, 2005. During the time that Ms. Cyr dealt with H.H., she was concerned about H.H.’s failure to follow through with the parenting services and noncompliance with the PSA’s. Ms. Cyr advises that when she talked to H.H. on March 14th, H.H. indicated she was smoking pot and using morphine the previous week. Ms. Cyr prepared the drug and alcohol assessment referral marked Tab B-8 and did work to facilitate treatment for H.H. but H.H. did not follow through. [31] Holly Murray has been the worker on this matter since July of 2007. During her involvement with this matter, both children have been in the care of foster parents and the natural parents had been visiting the children at the office for unsupervised visits once week. She reported that generally the visits were going well and in August of 2007, there was some overnight visiting. Ms. Murray made the decision to return the children to the parents in September of 2007 on conditions that the parents submit screens and that they continue on the methadone program as well as take anger management in the case of the father and the children attend the Children First Program. This resulted in six month supervision order dated October 2, 2007 for both children. Ms. Murray checked on the children on November 19th and December 17th and the children appeared well. In the month of January of 2008, she had contact with both the father and the mother. The father reported that the mother was using drugs heavily and often did not know where she was. H.H. herself called on January 21st and sounded like she was under the influence speaking slowly and her speech was slurred. N.O.S. reported on February 19th that he did not think that H.H. was on the methadone program at that time. It appears that H.H. left the father for some period in February and March and by March 1st, wanted to come back to him. Ms. Murray informed the father that if the mother were to live with him, then the kids would be apprehended. Ms. Murray testified that in March the father indicated that he would go to anger management class and get treatment. During this time, the children looked well cared for. On March 31, 2008, Ms. Murray received report from Mobile Services through an anonymous caller who indicated that H.H. and N.O.S. were drinking. This raised protection concerns. On April 18 of 2008, Ms. Murray spoke with the SAP worker who indicated that she felt both the father and the mother were trying to avoid her. This raised further concerns with Ms. Murray, however, on April 28th when Ms. Murray visited the family home, the children appeared to be doing well and PSA was signed with the father. [32] On May 28th, Joe Vandale provided drug screens to Ms. Murray. The father had tested positive for cocaine and the mother had had positive screens in April and May for cocaine. [33] When the children were finally apprehended on May 29th, they were quite dirty. During the period of June to the present, both parents visited the children consistently and the visits went generally well. [34] Ms. Murray testified that D.S. seemed delayed in his development but was otherwise doing well and that N.S. had started school. Ms. Murray indicated that her concerns were the drug use of the parents as well as their on and off again relationship. The receipt of positive screens and not following through on programming had led to the apprehension of the children and she felt that the father not attending anger management and other programs was significant. She indicated that there were no objective indicators that they were working on their issues and she recommended that the court order six month order planning for permanent placement. [35] In cross-examination, Ms. Murray confirmed that the children appeared to be well bonded to their parents and that the only time that the children appeared not to be well dressed is when they were apprehended. She also confirmed that both the father and the mother would bring new clothes to the children on their visits. She confirmed that the father indicated he would work with the Ministry with respect to the children. She confirmed that there was no indication of violence by N.O.S. since she had been the worker on the file and also confirmed that since the apprehension, she did not have particularly good working relationship with the parents. Ms. Murray admitted that she basically stopped working with the parents once the long term placement planning started. She advised that she had never been to N.O.S.’s father’s house and that the only contact with the father was at visits. She indicated that the permanency committee had explored resources with the appropriate Indian Band but the Band indicated that there were no resources on the Reserve. She confirmed that the children generally appeared to be happy when they were with the parents. She admitted that the parents need support to beat their addiction problems. [36] The witness Jamie Jones from the Ministry became involved with the matter in April of 2005. She was not able to confirm that in March of 2005 H.H. had attended any programming. Ms. Jones continued on the file until September of 2005 dealing with H.H. During that time, H.H. admitted to using valium, marijuana and morphine. In early May, H.H. brought N.S. in indicating that neither she nor her mother could care for her. [37] Kynan Kindopp was worker on this matter from October of 2005 until May of 2007. During that time, she dealt only with N.S. When she first got involved, N.S. was living in foster home and H.H. was visiting N.S. at her mom’s house. During the time that Ms. Kindopp dealt with the children and the parents, the ups and downs in the relationship between the parents continued. Ms. Kindopp had discussion on October 27, 2005 with H.H. regarding domestic violence since it appeared at visit that she had bruise. H.H. indicated that it was as result of fall. Ms. Kindopp spoke to H.H. about domestic violence. She did not believe it was fall. It looked like she had been hit. On November 10, 2005 the mother of H.H. reported to her that H.H. and N.O.S. “were using”. In March of 2006 Ms. Kindopp saw H.H. at detox centre. H.H. looked good and she had been clean for five days. By March 20th, Ms. Kindopp had been advised that H.H. was no longer in the detox program. In August of 2006 N.O.S. reported that he had broken up with H.H. and that she was using drugs. In 2006, the parents continued to visit N.S. and members of both of the father’s and mother’s family were explored as resources without success. In February of 2007 N.S. was admitted to the Pasqua Hospital because of vomiting and diarrhea. Ms. Kindopp indicated that her recommendation at the end was to pursue permanent wardship for N.S. There were protection concerns she indicated which included domestic violence, addiction, transiency and lack of follow through. She indicated that while she was on the file, no programs were ever followed through by the parents for their addictions, parenting or violence apart from the methadone program. [38] In cross-examination Ms. Kindopp indicated that the father had always indicated his willingness to work with the Ministry. She also indicated that there was time when he was in counselling. She indicated that she never received any certificates of completion but did talk about completing the courses and following through with them with the father. She indicated that sometimes she knew where the father was living and sometimes not. She did attend at the fathers’ father’s house on the […] Reserve and indicated it was nice home. She indicated that she worked with the father to remind him that N.S. was lactose intolerant and that he had to bring appropriate snacks but thereafter the father complied with that. [39] The child N.S. was born addicted to drugs. recent picture of her found at Tab B-33 shows bright and happy child. Tab C-6 is letter dated February 22, 2005 from the Social Worker, Leanne Stefan, to Sharese Cyr and indicates Stefan’s concerns that there were risk factors posing health and safety issues to the child including active disclosed intravenous drug use of ritalin, high risk behaviour by the mother and possible gang involvement and the mother’s limited family supports. Tab C-19 contains Regina Qu’Appelle Health Region Wascana Rehabilitation Centre Psychological Assessment Report. The date of the report is May 14, 2007 and indicates that N.S. was living with her foster parents, J1. and J2. H., and had been living with them since November of 2006. N.S. attended the Y.W.C.A. daycare daily and at that time she was not playing with other children at the daycare and was physically aggressive toward them. However, the foster mother noted recent improvements regarding her ability to get along with other children and increased interaction and play and decreased aggression. summary of the assessment was that N.S. was pleasant and busy girl and her overall cognitive abilities fall within the average range. Her speech and language range also fall within the average range. Adaptively, N.S. is functioning within the high average range of abilities and overall did not present with any significant cognitive attention or adapted deficits. The report indicated that she has separation anxiety which is not surprising given her early history of not having consistent and long term caregiving environment. [40] D.S. was assessed at the Regina Developmental Assessment Clinic physical therapy assessment on August 7, 2007. The report indicated that D.S. was active and alert for the assessment and already handling well. At the time of the assessment, D.S. was 21 weeks old. This report is found at Tab C-20. The report indicates that he is demonstrating appropriate developmental skills for his age and using the developmental references demonstrating most of the skills at 20 week level. He also demonstrated some emerging skills from the 24 week level. On the motor skills level, he scored at the 25th percentile. The report found at Tab C-21 by the neonatalogist indicates that developmentally, D.S. is performing appropriately for his age. His neurological exam was normal. He was doing quite well with excellent growth with development appropriate for his age. [41] The therapy service notes from the Regina Qu’Appelle Health Region found at Tab C-23 are dated July 7, 2008. At this time, he was 16 months of age and had been with the foster family for two months. He was referred for therapy on concerns that there might be some developmental delay. He appeared to be functioning at the 16 to 18 month level on motor skills. His other skills, fine motor adaptive, were mostly at the 11 to 12 month level. It appeared that he may have hearing problem. [42] K.S.K.S. testified that she was the current foster parent for N.S. and D.S. When the children came back into care in May of 2008, she met N.S. Ms. K.S. describes N.S. as challenging girl, not sure of herself and sometimes aggressive. She does report that N.S. has strong personality and that she enjoys playing with age appropriate toys. She indicated that N.S. is not comfortable yet at her home and wants to be with her parents. [43] Ms. K.S. testified that when D.S. first came to her, he was going through withdrawal and was first on morphine and then phenobarbital for period of time. She indicated that the parents visit often and consistently and that the visits with the parents were going well. She indicated that when D.S. first came into her care, he was blank, had little expression or rarely smiled and he needed lot of people to hold him and respond to him. She indicated he was withdrawn. She felt his speech was delayed although his gross motor skills were good. She indicated that D.S. was joy to be with and that he was very busy, loves to take apples and milk and is doing everything he should so at this age. [44] The mother H.H., although present in court and part of the proceedings, declined to testify herself or call any evidence or cross-examine any witnesses. [45] The father testified that he was doing well on the methadone program and was staying away from drugs. He indicated that at the present time he was living in two story house with his father on the […] Reserve. The house has two bathrooms, four to five bedrooms and two living rooms as well as big yard and toys for children. The […] Reserve has approximately 2,000 people and has school, daycare, store and programs whereby he can get his grade 12 equivalency. The father indicated that he wanted an education. He testified that the daycare for the children was near the school and had lots of staff, one staff to two children. The school had grades kindergarten to grade 12. There was also health centre at the Reserve with dentist coming out as well as store and gas station and arcade. The Band Hall runs programs for children and the Southey RCMP is the police force. He hopes to continue in the methadone program and slowly wean himself off the program by taking lower doses. He indicates at the present time he does not have any cravings for drugs and hasn’t had any for long time. The father acknowledged that N.S. was lactose intolerant but indicates that she has gotten over it. He hopes to take the children home with him. He indicates he will not expose them to violence or drugs. He also wants H.H. to get treatment for her addictions and will continue the relationship with her if she is treated but not if she is untreated and using drugs. At the present time H.H. stays with him at the […] Reserve. Exhibit D-1 was filed which is letter dated October 20, 2008 which is letter of support for the father and the children from the Band Chief and Administration. [46] In cross-examination, the father admitted that he agreed to number of temporary orders. He indicated that he did not complete anger management but did Parenting with Focus on Fathers. He also admitted missing some days at the methadone clinic and indicated that he has complied with the court orders not to expose the kids to drug use and has never exposed the children to drug use. He did, however, admit that he tested positive for cocaine after the children were returned to him in September of 2007. He indicated that cocaine could be mixed with marijuana and that he admitted to Joe Vandale that he had slipped up on cocaine. He also admitted missing appointments at the methadone clinic in December. However, he was adamant that he did not use drugs while the children were in his care and indicates that he will not use cannabinoids if the children are returned. The father admitted that his screens for cannabinoids in the past had been positive but indicates that he is not tempted to use drugs if H.H. is using drugs. With respect to treatment, he indicated that H.H. is scheduled to go for addictions treatment and that he would be attending addictions treatment after H.H. completes her program. He confirmed that he has cancelled treatment several times. He also confirmed that he took A.A. meetings couple of times during the last six months but is not regular at N.A. or A.A. He stated that he could stay away from cannabinoids if the children are placed in his care. He also confirmed that he is still in relationship with H.H. who is expecting another child on or about April 17th. He also confirmed that if H.H. fails to go to treatment then he would not live with her and she would have to live with her mom. He denied ever being aggressive toward or assaulting H.H. despite what H.H. said about him. He confirmed that H.H. wanted the children to be in his care. He also said that while the children were in his care from time to time, he cared for them lots. He acknowledged that parenting the children on full time basis was little different that visiting them but that he has the support of his father and grandmother. He indicates that the K.S.’s have put the children on pattern and he is willing to maintain that pattern. He proposes that if he were to receive the children, he would enrol D.S. in daycare and N.S. in school and that he had already made arrangements to enrol N.S. in school. He confirmed that H.H. was to attend at MACSI in Saskatoon at the end of January for 28 day stay. He proposes to go there after that. [47] On re-examination the father indicated that although he had made mistakes in the past and bad choices, he has pushed them to the side and now has supports that he never had before for example from his father. He indicated that he was more focussed now and will do anything he has to do to take care of the children and will work with Social Services in any way. [48] L.S., the father of N.O.S., testified that as single parent he had raised five boys and one girl. His daughter still lived with him at the […] Reserve and was going to school there. He indicated that there were three bedrooms upstairs and two bedrooms downstairs with room for N.S. and D.S. should they be given to their father. He confirmed that at the Reserve there were the facilities mentioned by the father. He indicated that the father was turning his life around and wants his family back and that the Elders on the Reserve would help him do that. He also indicated that the Band supports having the children there and that his sister from Regina works with Aboriginal Family Services and would provide additional support. He indicated that he does not allow any drugs or alcohol in his home. [49] L.S.’s sister testified. She is the father’s aunt. She presently lives in Regina and has been female figure with the father’s family while L.S. was raising his family alone. She works for Aboriginal Family Services as Family Support Worker and Parent Aid. She also worked at safe shelter and for the […] Tribal Council. She indicates that her family is close and she sees the father’s family every week and has on ongoing relationship with him. She indicates that the father is good with the children and would often bring the children to her. She indicated that the […] Councillors have no tolerance policy for gangs and she has no concerns if the children are returned to the father. She confirms that L.S.’s house has no alcohol and drugs policy. She confirmed that parenting classes and treatments would be desirable and as well as developing parenting skills and that she was urging the father to take the programs. POSITION OF THE PARTIES [50] The Ministry takes the view that the children are in need of protection under s. 11 and that an appropriate order should be made under s. 32. The Ministry argues that nothing has changed and raises the concern that nothing will be different if the children are given back to the father. The Ministry indicates that there will continue to be likelihood of physical harm in the family which would affect the children’s mental and emotional involvement. They also point to domestic violence. The Ministry argues that s. of the Act is paramount over s. and that this is case where the care that the father is able to provide to the children falls below the minimal community standard. The Ministry points to N.O.S.’s criminal record and history of police intervention regarding domestic violence and criminal lifestyle on his part as well as his drug dependency. They raised the question of what would be different on this occasion. They questioned H.H.’s ability to act as parent if there is domestic violence and point to the disclosures by H.H. regarding domestic violence and bruising which was observed by the workers. The Ministry argues that there is circumstantial evidence as well as disclosure by H.H. as well as police records that indicates history of domestic violence. The Ministry points to no programming being taken with respect to domestic violence and indicates there would be danger to the children to remain at home. [51] The Ministry also points to the positive drug screens with respect to the father and the parties’ history of intravenous drug use. They point to the fact that H.H. overdosed on methadone in 2008 and both parents binged in September of 2007. They point out that between September of 2007 and May of 2008 this was the longest period of parenting done by the parties and there were difficulties with respect to screens and slips by the parties. The Ministry indicates that the father was defensive about his addictions and made repeated excuses about his failure to complete programming. This included twice attending MACSI but not following through as well as sporadic attendance at N.A. and A.A. The Ministry points out that H.H. has promised to attend programs as well but has not. Regarding the father’s promise that he will not use cannabis, the Ministry indicates that L.S. does not control the father’s behaviour outside of his home. They acknowledge that L.S. has been support for the father but why would this time be any different if he has been support in the past. In short they argue that L.S. cannot guarantee that N.O.S. will not use drugs. [52] The Ministry points to nine PSA’s and several orders all with the goal of keeping the mother and father on the road to taking programming. They point to the fact that Joe Vandale has testified that they do not appear to be following up on their programming and the Ministry feels that their failure to follow through is long standing pattern of behaviour to which they will revert once the children are in their care. The Ministry argues that they had these patterns before and knew the risk of using and went back to it. The Ministry indicates that there must be an indication that the parents have altered their behaviours and that the children will no longer be in need of protection and that reasonable plans exist for change. [53] The Ministry proposes that six month order be granted and that the order include wording that it is for the purposes of long term planning. They make the argument that if this wording is not attached then there would be another trial on more permanent order later on. Social Services indicates that if the children are to be returned to the father that the October 2007 order is starting point for conditions that might be put on the father. [54] Mr. Campbell, on behalf of the father, indicated that many of the problems which the parties had were well known when the children were returned to the care of the parents. This included drug involvement, criminal record and other risk factors which the Ministry now seeks to use for its argument. The father’s counsel argued that everyone who checked on the children said that they were looking good and were dressed well. He indicated that the father did nothing wrong between September of 2007 and May of 2008 other than slip for cocaine. He also indicated that H.H. was not sophisticated woman and that despite the police reports there was no evidence of domestic violence. This report did not provide any details. He indicated that the record for domestic violence ends in 2006 and that under oath, the father denied any domestic violence. He argued further that there was no evidence of domestic violence having any impact on the children. He also pointed out the foster mother who testified indicated that the parent’s home was nice. He argued that the level of parenting did not fall below the minimal standard and that the Ministry had jumped the gun in not continuing to work with the parents. He indicated that Ms. Murray did not work with the parents after the matter went forward and that the Ministry should continue to work with parents. [55] He indicated that the father came to court and should be given lot of credit for being receptive to any direction with respect to the children. He stated that the father has tried to follow through on programming but has an explanation of why he could not; in one case an eye injury and another case lack of funding for daycare. He indicated there was no suggestion that the father was not sincere in attending programming and that this was not case of avoiding. He indicated that the Ministry has an onus of following up on the father to make sure that he attends and completes the programs. Counsel for the father made the further observation that after the order of September 2007 expired, there was no further application to re-apprehend or extend during the time that the children were being parented by N.O.S. until some time later. When the children were finally apprehended it was not because of any domestic violence. The implication is that all was well or something would have been done. He also indicated that the father’s family at the Reserve is supportive and that if an order is made giving the children back to the father that the condition be that he reside in the home of L.S. He indicated that the father is over the hump in terms of his problems. Counsel for the father indicated that any order that is made should not include any reference to long term planning. [56] The mother H.H. declined to make any argument to the court other than that she was supporting the case for the father. She indicated that she loved the children, that she has addictions and that she is dealing with them and learning from them. [57] Counsel for the Ministry asked that draw an adverse inference from H.H. not testifying in that any allegations against her are uncontroverted. [58] Section 11 of the Act defines when child is in need of protection. For the purposes of this matter, s. 11(a)(i), (ii), (v) and (vi) are germane. They 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; ... (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; ... Additionally, ss. and of the Act are relevant. Additionally, s. 37(1)(a) and (c) are relevant as well as s. 37(4)(a). These sections read as follows: The purpose of this Act is to promote the well-being of children in need of protection by offering, wherever appropriate, services that are designed to maintain, support and preserve the family in the least disruptive manner. 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 relationships 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. 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 be placed in the custody of his or her parent; ... (c) remain in or be placed in the custody of the minister for temporary period not exceeding six months. (4) In making an order pursuant to subsection (1), (2) or (3), the court: (a) shall consider the best interests of the child; ... [59] The guiding case in respect of the principles which must apply is found in Saskatchewan (Minister of Social Services) v. E.K.S., D.W. and C.S. (1996), 1996 CanLII 7131 (SK QB), 146 Sask. R. 46 (Sask. Q.B.). Paragraph 41 of this case per McIntyre J. reads as follows: [41] In determining whether child is in need of protection pursuant to any of the grounds enumerated in s. 11, Baynton J., in Saskatchewan (Minister of Social Services) v. S.E. and E.E., 1992 CanLII 8071 (SK QB), [1992] W.W.R. 289 (Sask. U.F.C.), at p. 296 states: “...(T)he issue is not whether the children might be better off, or happier, or obtain better upbringing in the care of other ‘parents’ than with their natural parents. If that were the criterion for protection order, not many children would remain with their natural parents. The issue, however, really is whether the children concerned are receiving level of parenting care that is below the minimal standard that will be tolerated in our society ...” [60] Further paragraphs of this case are germane, namely 43(a) and (b), 44 to 53 as follows: [43] Having determined the children to be in need of protection must move to the second step of determining the appropriate order under s. 37. Section 32 requires the court to approach the task as follows: (a) In determining what is appropriate the court must consider the best interests of the child within the meaning of s. and may consider the recommendations of the officer. These considerations must take place in the context of the objective of the Act as enumerated in s. 3. (b) The court must first determine whether any of the options in s. 37(1) is appropriate, that is: (i) returning the children to the parents with conditions attached if need be, including supervision by the Minister of up to one year; (ii) placing the child in the custody of person having sufficient interest; or (iii) committing the child to the custody of the Minister for up to six months. [44] In determining whether any of the options in s. 37(1) is appropriate number of principles can be taken from various reported decisions and the statute itself, keeping in mind that the decision must be reached in the context of determining what is in the best interests of the children. [45]1.[sic] The welfare of the child is the paramount (but not the sole) consideration. The wishes of the parent must be given independent subordinate weight. The weight will depend on the circumstances in each case. (R.v. Saskatchewan (Minister of Social Services), 1974 CanLII 959 (SK QB), [1974] W.W.R. 388, at p. 393 (Sask. Q.B.)) [46]2.[sic] Section 37(4) does not declare that only the best interests of the child shall be considered. The implication is that the court may be mindful of other matters. As well, the list in s. is not exhaustive in determining the best interests of the child. (Saskatchewan (Minister of Social Services) v. R.G. (1990), 1990 CanLII 7428 (SK QB), 88 Sask. R. 262 (U.F.C.)) [47]3.[sic] Any determination made must be in the context of the objective of the Act, set out in s. 3. (M.A.C. v. Saskatchewan (Minister of Social Services) (1993), 1993 CanLII 9025 (SK QB), 110 Sask. R. 81; 46 R.F.L. (3d) 174 (Q.B.)) [48]4.[sic] The court may consider the recommendation of the officer (representative of the Department) but is not bound thereby. [49]5.[sic] The court, having determined the child to be in need of protection, has determined that the level of parenting care is below the minimum tolerated by society. Therefore, in determining whether an order under s. 37(1) is appropriate, including conditions which could be attached, the court must be satisfied either: (a) The parent or parents have altered his or her ways such that the circumstances which gave rise to the determination that the child was in need of protection no longer exist, or (b) The court is satisfied that there is realistic plan or reasonable basis upon which to conclude that the necessary changes can occur within reasonable time whereby the children can be safely returned to the care of their parent or parents (Saskatchewan (Minister of Social Services) v. A.J. and C.J. (1987), 1987 CanLII 4660 (SK CA), 58 Sask. R. 246 (C.A.); Saskatchewan (Minister of Social Services) v. M.L. and M.L.M. (1988), 1988 CanLII 4925 (SK QB), 71 Sask. R. 110 (U.F.C.); M.A.C. v. Saskatchewan (Minister of Social Services), supra; Saskatchewan (Minister of Social Services) v. R.G., supra.) [50] The court must look at various factors including (without meaning to be exhaustive of the possibilities) any changes in circumstance or conduct of the parent that has occurred or is proposed, any plan of corrective action that is being advanced, the nature of any resources suggested and the time frames which may be involved. The options in ss. 37(1) are premised upon reasonable prospect of change, within reasonable length of time and reasonable use of resources if needed. [51] In making an assessment as to whether an order under s. 37(1) is appropriate the court must do so on the basis of the evidence before it. As noted by the Court of Appeal in Saskatchewan (Minister of Social Services) v. A.J. and C.J., supra, at p. 251: “However, the following is self-evident. Where, as here, children have been placed into the temporary custody of the Minister, and the parents wish to have the children returned to them, they must make efforts to improve or remove the conditions or circumstances in the home which have resulted in the children being taken from the parents ...” [52] Counsel for the department said “good intentions are not sufficient” and relied upon the following observations of the Manitoba Court of Appeal in Children’s Aid Society of Winnipeg v. Redwood (1980), 19 R.F.L. (2d) 232 (Man. C.A.), at p. 234: “... The test is: what is in the best interests of these children, and not whether the mother has merely seen the light and is now prepared to be good mother, while in the past, on her own admission, she was not such. The test is whether the mother has in fact turned new leaf and whether she is now able to give to the children the care which is in their best interests. Good intentions are not sufficient. As the chief justice of this court, speaking in an unanimous decision in another case, stated so ably: ‘to give this mother another chance is to give these children one less chance in life.’” [53] The foregoing comments must be applied with caution. agree that good intentions by themselves are not sufficient. The question in every instance must be whether, on all of the evidence before the court, the court is satisfied sufficient change can occur within the context of an order under s. 37(1) such that it is in the best interests of the child to make such an order. Given the objective of the Act as set out in s. 3, permanent committal does not ipso facto follow just because the parent has not yet turned that new leaf. [61] The first issue is whether N.S. and D.S. are in need of protection. am guided by the E.K.S. case (supra) and s. 11 of the Act. am also mindful of ss. and of the Act and the interplay of those principles. [62] In my view, the children, if they are returned to N.O.S., will not receive at this time a level of parenting that is above the minimal standard that will be tolerated by our society. have reviewed the evidence as whole and specifically reviewed the evidence respecting the emotional, social and developmental status of N.S. and D.S. Both children have some difficulties which must be managed carefully to ensure their continued growth and improvement. I am not satisfied that either of N.O.S. and H.H., given their own difficulties, can provide that management based on my comments which follow. [63] The Ministry has tendered substantial evidence of criminal behaviour on the part of N.O.S. and police involvement in the life of H.H. The criminal behaviour of N.O.S. in and of itself would not disqualify him from parenting the children if the children are not exposed to that behaviour. In this case, there is only risk that the children may be exposed to such behaviour in the future. There is no evidence that N.O.S. has done so in the past. [64] The evidence of domestic violence is equivocal. N.O.S. denies domestic violence. am not satisfied that there is significant domestic physical violence between N.O.S. and H.H. The Ministry argues that the failure of H.H. to testify should result in an adverse inference in favour of there having been domestic violence. will not make such an inference. On the evidence of her lifestyle and confirmed relapse into addiction the evidence that N.O.S. inflicted bruises on H.H. is weak. There is evidence, however, of consistent fighting and disruption of their relationship in the past. This has been described as an on and off relationship. I find that the relationship is unstable. This would be considerable stress on the parents and their relational struggles would in my view along with their struggles in other areas detrimentally impact their ability to care for the children and provide minimal level of care. [65] The parents’ addictions continue to loom large in their lives and relationship. While both H.H. and N.O.S. are to be commended for their progress in this area, I am not convinced that the father’s addiction has been stabilized and is fully under control. There have been slip-ups and missed appointments at the methadone clinic. Although Mr. Vandale testifies that each slip-up is learning experience for N.O.S., in my view the cost and effects of such learning should not be visited on the children. H.H. on the evidence is even less advanced in dealing with her addictions than N.O.S. despite her best intentions. [66] The evidence as whole indicates good intentions but not the personal strength to take and complete programming whether offered by the methadone clinic, agreed to on PSA’s or ordered as condition by the court. This is troubling because if the parents don’t have the strength to achieve this, there is question as to whether they have the personal strength to provide the minimal care for these children required by law on day to day basis. [67] Although N.O.S. may be on the cusp of properly managing his addiction problems, find that he is not quite there yet. Further time will tell. Both parents are to be commended for their plans to take treatment immediately. [68] If the children are returned to N.O.S. I find that the children are likely to suffer physical and emotional harm if they continue to be exposed to the present addictions struggles of N.O.S. and H.H. who proposes to live with N.O.S. as they both attempt to get their addictions under control and as well their relational struggles. [69] Although L.S. has offered to provide drug and alcohol free home for N.O.S. and the children, in my view L.S. has, at the moment and it appears has had in the past, limited influence over his son N.O.S. respecting his addictions. Although L.S. can continue where possible to support N.O.S., am not satisfied that at the moment his support will allow N.O.S. to provide the minimal standard of parental care required given the evidence as whole in the absence of N.O.S. having done something further to deal with his addictions. [70] While based on the evidence as a whole the parents have had successful visits with the children while in care and had a period of some months where the children were apparently looked after by them, this does not convince me that they belong with N.O.S. The day to day stress of parenting is substantially different than visits of several hours. As well, at the moment the evidence as a whole does not convince me that the children would receive consistent care month after month despite one past success in doing so. [71] I therefore find that N.S. and D.S. are children in need of protection and should, at this point, not be returned to N.O.S. or H.H. [72] In my view, the evidence as whole indicates that the children should, given my earlier comments, not be placed in the custody of the parent under s. 37(1)(a). On the whole, the children are best placed with the Ministry for six months. [73] Although the Ministry seeks a six month order with the additional notation that it is for the purposes of permanency planning, I am not inclined to make such an order. [74] six month order is premised on reasonable prospect of change by the parents within reasonable time. am hopeful that both parents are sincere in continuing to work on their issues in the near future. In the past, neither H.H. or N.O.S. have followed through with promises and agreements respecting programming to deal with their issues. There has been lots of talk but little or no action. The six month order will give the parents the opportunity to demonstrate that they are serious about changing their lives so that their children can be returned to them. Although admittedly the Ministry has provided or attempted to provide substantial resources to N.O.S. and H.H. in the past these resources have ceased after the last apprehension as result of the Ministry’s decision to do permanency planning. This order will give the Ministry and the parents further opportunity to collaborate to try to bring about positive changes in the parents’ lives. expect that Ministry personnel will work diligently in that regard. It is worth the effort to help this family. [75] There will therefore be an order that the children N.S. and D.S. be placed in the custody of the Minister for period of six months. [76] The parents, H.H. and N.O.S., shall continue to provide drug screens on at least weekly basis or at the request of the Ministry to the Ministry. H.H. and N.O.S. shall each, during the term of this order, attend and successfully complete an addictions program and provide to the Ministry evidence thereof. Additionally, the conditions found at paragraph of the October 2, 2007 supervision order shall be made part of this judgment and the parents shall be subject to those conditions. J. R. K. Ottenbreit
The Ministry of Social Services seeks a 6 month order pursuant to s. 37(c) of The Child and Family Services Act with respect to the two children, NS is four years old and DS is two years old. DS was apprehended by the Ministry when he was born. Both NS and DS were the subject of a consent order for 6 months in October 2007. Both children have been in care for most of their lives. The Ministry requests a six month order with a proviso that it be for the purposes of allowing the Ministry to make long term placement plans for both children. The mother HH is not seeking a return of the children to her but supports the position of NOS, the father, who ask that the children be returned to him in his care. HELD: 1) If the children are returned to NOS, they will not receive a level of parenting that is above the minimal standard that will be tolerated by our society. Both children have some difficulties which must be managed carefully to ensure their continued growth and improvement. 2) Given the difficulties the parents struggle with, they can not provide that management. The Ministry has tendered substantial evidence of criminal activity on the part of NOS and police involvement in the life of HH. The criminal behaviour of NOS in and of itself would not disqualify him from parenting the children if the children were not exposed to that behaviour. There is a risk that the children may be exposed to such behaviour in the future. There is no evidence that NOS has done so in the past. The evidence of domestic violence is equivocal. There is evidence of consistent fighting and disruption of their relationship in the past. The Court finds that the relationship is unstable. The parents' addictions continue to loom large in their lives and relationship. The Court is not convinced that the father's addiction has been stabilized and is fully under control. There have been slip-ups and missed appointments at the methadone clinic. This should not be visited on the children. HH is even less advanced in dealing with her addictions than NOS. The evidence indicates good intentions but not the personal strength to take and complete programming whether offered by the methadone client, or ordered as a condition of the court. This is troubling because if the parents don't have the strength to achieve this, there is a question as to whether they have the personal strength to provide the minimal care for these children required by law on a day to day basis. 3) If the children are returned to NOS, they are likely to suffer physical and emotional harm. While the parents have had successful visits with the children while in care and had a period of some months where the children were apparently looked after by them, this does not convince the Court that they belong with NOS. The day to day stress of parenting is substantially different than visits of several hours. The evidence does not convince the Court that the children would receive consistent care month after month despite one past success in doing so. The children are in need of protection and should not be returned to NOS or HH. 4) Although the Ministry seeks a 6 month order with the notation that it is for the purposes of permanency planning, the Court is not inclined to make such an order. A 6 month order is premised on a reasonable prospect of change by the parents within a reasonable time. The parents have this opportunity to demonstrate that they are serious about changing their lives so that their children can be returned to them.