K.P. v. Newfoundland and Labrador (Child and Youth Services)

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: K. P. v. Newfoundland and Labrador (Child and Youth Services), 2018 NLCA 35 Date: June 12, 2018 Docket Number: 201601H0087 Restriction on Publication: There is a Publication Ban on the names and any other identifying information of the children referred to herein, as well as the names of their biological parents, relatives and foster families pursuant to section 52 of the Children and Youth Care and Protection Act. BETWEEN: K. P. APPELLANT AND: MANAGER OF CHILD AND YOUTH SERVICES, ZONE A RESPONDENT Coram: Welsh, Harrington and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Family Division 201302F0924 (2016 NLTD(F) 22) Appeal Heard: June 12, 2018 Judgment Rendered: June 12, 2018 (Orally) Memorandum of Disposition Filed: June 13, 2018 Counsel for the Appellant: Alexandra Kindervater Counsel for the Respondent: Krista M. Atkins Page 2 Welsh J.A.: [1] K.P. appealed the decision of the trial judge declaring K.P.’s two children to be in need of protective intervention pursuant to sections 10(1)(a) and (c) of the Children and Youth Care and Protection Act, SNL 2010, c. C-12.2, and ordering that the children be placed in the continuous custody of the Manager of Child and Youth Services, Zone A pursuant to section 32(2)(d) of the Act. [2] Affidavits from K.P. and the Manager regarding the current status of the children were filed prior to the hearing pursuant to rule 9(6) of the Court of Appeal Rules, NLR 38/16. The older of the children, who is now seventeen years of age, is no longer a child within the meaning of the Act. Accordingly, the order is spent with respect to that child. Counsel agreed that the appeal is properly restricted to the declaration and order regarding the younger child. [3] At the hearing, after carefully considering all the written and oral submissions of counsel, the Court dismissed the appeal. This memorandum of disposition provides a short explanation. [4] The trial judge set out a lengthy, detailed discussion of the evidence, issues and reasons for her decision. K.P. submitted that the judge erred in three respects. [5] First, she submitted, the judge refused to admit hundreds of pages of reports of supervised access visits that occurred from October 2013 to May 2016. In fact, many positive reports of access visits were submitted, and subjected to cross-examination, during K.P.’s testimony. K.P. was represented by counsel and had received full disclosure from the Manager. As a result, counsel was in a position to choose the reports to be entered on K.P.’s behalf. The request to enter the additional voluminous reports in their entirety was made after K.P.’s testimony was concluded. The issue was not raised when K.P. was recalled to give further evidence. The reports were not included in the book of documents that was filed prior to the commencement of testimony of witnesses. Whether to decline or to permit K.P. to file the additional reports in the circumstances fell within the discretion of the judge. [6] The trial judge was satisfied that the access visit reports that were entered during K.P.’s testimony, tested under cross-examination and referenced during the hearing were sufficient to permit a fair and complete assessment. Indeed, counsel for K.P. conceded that K.P.’s purpose for filing the additional reports Page 3 had already been achieved through other evidence. In the result, there was no basis on which to conclude that the judge erred by refusing K.P.’s request. [7] The second ground of appeal was that Chris Bishop, a child management specialist, who had worked with the child, did not testify. However, his involvement was limited to addressing the child’s behavioural issues until he reached school age. At the time of the hearing, the child was of school age, Mr. Bishop’s involvement had concluded approximately nine months earlier, and Lisa Inder, a behaviour management specialist, had taken over. Two reports authored by Mr. Bishop had been filed with the Court and Ms. Inder testified. There is no basis on which to conclude that procedural unfairness resulted because Mr. Bishop did not testify. The judge had ample evidence on which to make her decision. [8] Finally, K.P. submitted that the judge should have made a further temporary custody order, rather than a continuous custody order. I begin by noting that the Act does not require the Court to exhaust every temporary order that may be legislatively permitted before making a continuous custody order. The appropriate order will depend on an assessment of the best interests of the child. In this case, the child was removed by warrant from K.P.’s care when he was four years old. In the three years following his removal, many attempts were made and services provided to K.P. to improve her parenting ability, but no meaningful progress was made. The child is now nine years old and in a stable living situation. Current information confirms K.P.’s situation has not changed. The judge’s conclusion that a continuous custody order was in the child’s best interests, and her determination regarding the possibility of reunification within the foreseeable future based on K.P.’s inability to parent or improve her ability to parent, were well supported by the evidence. [9] In the result, the appeal was dismissed. ______________________________________ B. G. Welsh J.A.