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

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: M. K. and R. P. v. Newfoundland and Labrador (Child and Youth Services), 2018 NLCA 34 Date: June 7, 2018 Docket Number: 201601H0089 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: M. K. AND R. P. APPELLANTS AND: MANAGER OF CHILD AND YOUTH SERVICES, ZONE A RESPONDENT Coram: Welsh, White and O’Brien JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Family Division 201502F0199 (2016 NLTD(F) 22) Appeal Heard: November 22, 2017 Judgment Rendered: June 7, 2018 Reasons for Judgment by: White J.A. Concurred in by: Welsh and O’Brien JJ.A. Counsel for the Appellants: Both Self Represented Counsel for the Respondent: Krista M. Atkins Page 2 White J.A.: [1] This is an appeal from a decision of a judge of the Supreme Court of Newfoundland and Labrador, Family Division granting continuous custody of the appellants’ grandchildren to the Manager of Child and Youth Services (CYS) and dismissing the appellants’ application for custody. BACKGROUND [2] K. P. is the mother of two children who were aged seven and fifteen at the time of the protective intervention hearing. M. K. and R. P., the appellants, are Ms. P.’s parents and the children’s grandparents. The appellants have been separated for approximately 15 years and live in separate residences but maintain a friendly relationship. [3] The children were removed from Ms. P.’s care by CYS on October 28, 2013. CYS filed an application for continuous custody of the two children on December 4, 2014. A protective intervention hearing was held in Supreme Court Family Division in May 2016. Ms. P. opposed the application. The appellants supported the mother in her position but filed an application under the Children’s Law Act, RSNL 1990, c. C-13, for custody of the children in the event the children were not returned to their mother’s care. The appellants’ application was heard at the protective intervention hearing. The judge granted the Manager’s application for continuous custody of the two children and dismissed the appellants’ application for custody. [4] Upon finding that the children were 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, the judge stated “it becomes necessary to determine how to promote their best interests and what is the appropriate order to be made under the Act” (2016 NLTD(F) 22 at para. 171). [5] The judge noted that the orders available under the Act, in the circumstances of this case, were a continuous custody order, a temporary custody order or a supervision order. She considered granting an order placing the children in the temporary custody of the grandparents: 172 In considering a temporary custody order, the Court has the option of placing a child with another person significant to the child under the supervision of the Manager. In this case, such a placement could be considered with either or both of the grandparents pursuant to section 32(2)(b) of the Children and Youth Care and Protection Act. Page 3 173 The philosophy of the Act is to provide a limited period of time wherein a child remains under the care of the Manager. If the time limits of the Act were strictly followed, a child would spend no more than 12 months in the care of the Manager prior to a final decision being made and permanency planning commencing with respect to their future care. 174 In considering the best interests of a child, the importance of stability and continuity in the child's care as well as the child's physical, emotional and developmental needs are considered relevant factors under the Act. These children have now been in the care of the Manager for more than thirty months, since October 2013. [6] The judge provided the following reasons for her determination that the best interests of the children would not be met by placing the children in the custody of the appellants: 180 Ms. K. has demonstrated repeatedly that she deals with issues in an angry and hostile manner, similar to her daughter. Although it is an understandably difficult situation for the family, Ms. K. has not been putting the children's needs above her own and has exposed them to her own explosive reactions. Given her training and experience she should have been able to model more appropriate behavior in the presence of her grandchildren. Mr. P. responds to the situations in a calmer manner, however, he is unable to demonstrate any insight into CYFS' concerns. He continues to defend Ms. K. and Ms. P's actions and does not understand the risks that they pose to the children. Mr. P. is of the understanding that the children are not impacted by these types of incidents. 181 It is my finding that the grandparents demonstrate little insight or acknowledgment of any of the factors that place [the children] at risk of harm. Neither of them have assisted or encouraged their daughter to seek and receive the therapy which has been recommended for over two years to assist in her reunification with the children. Furthermore, there is an unrealistic expectation that everything will change when the boys come home and that, somehow, together or separately, they will be able to parent these children who have very challenging needs. [7] Given her finding that the best interests of the children would not be served by placing the children in the temporary custody of the appellants under the Children and Youth Care and Protection Act, the judge also dismissed the appellants’ application under the Children’s Law Act, as the same principle of the best interests of the children applied, stating: 186 Having reviewed the evidence, it is my finding that the best interests of the children would not be served by having the children cared for or being placed in the custody of their grandparents under either the Children and Youth Care and Protection Act or the Children's Law Act. Page 4 187 Both pieces of legislation operate on the same basic general principle which is that the best interests of the children must take priority over any other considerations. Given my finding that the children are in need of protective intervention and recognizing that I do have the option of providing for a temporary custody order with the grandparents under the supervision of the Manager, it is my finding that the best interests of the children would not be served by making that type of order given my review of the evidence and circumstances which I have previously outlined. Given that conclusion, it is unnecessary for me to explore the grandparents' application for custody under the Children's Law Act any further. [8] The appellants appeal the judge’s decision dismissing their application for custody of their grandchildren. ISSUES [9] The issues as outlined by the appellants in their factum and argued on appeal can be summarized as: 1. Was there a breach of Mr. P.’s section 14 Charter rights due to the Court not providing a hearing device at the protective intervention hearing? 2. Did the judge err in not admitting certain documentary evidence at the protective intervention hearing? 3. Did the judge err in preferring the respondent’s evidence over that of the appellants? 4. Was there a proper assessment of Ms. K.’s parenting ability prior to the protection intervention hearing? STANDARD OF REVIEW [10] The standard of appellate review in child protection proceedings was outlined in T.R. v. Newfoundland and Labrador (Child, Youth and Family Services), 2014 NLCA 19, 348 Nfld. & P.E.I.R. 96, where Mercer J.A. stated: 18 Whether procedural fairness was observed is an issue of law and accordingly the applicable standard of review on appeal is that of correctness. Appellate deference to a trial decision respecting child protection applies to "fact-based and discretionary family law decisions unless manifest error is found" (see Grimes v. Grimes, 2012 NLCA 68, 329 Nfld. & P.E.I.R. 29, at para. 24). Where the standard of correctness does not apply, while the role of the appellate court “is not to retry the case in the sense of making its own findings of fact and substituting its opinion for that of the trial judge, nevertheless it is part of the Page 5 function of appellate review to review the record generally to satisfy itself that there is evidentiary support for the conclusion which the trial judge reached.” J.B., Re (1998), 166 Nfld. & P.E.I.R. 1 (NLCA) at para. 141, see also para. 43. [11] Section 9 of the Act outlines the paramount consideration in child protection proceedings and must be considered upon appellate review: This Act shall be interpreted and administered in accordance with the principle that the overriding and paramount consideration in a decision made under this Act shall be the best interests of the child or youth. ANALYSIS Hearing Issue [12] Mr. P. submits that his rights under section 14 of the Charter were breached as he was not provided with a hearing device at the protective intervention application. Section 14 of the Charter provides “A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter”. [13] The appellant submits that he suffers from hearing loss and required a hearing device to enable him to hear the proceedings at the protective intervention application. Mr. P. and Ms. K. were each represented by counsel at the hearing. Mr. P. maintains that he advised his counsel that he required a hearing device for the purpose of the proceeding and that his counsel confirmed there would be a device available. Mr. P. submits that, on the day of the proceeding, the court clerk informed him that the device was being used in another courtroom and was not available. Mr. P. admitted before this Court that he choose to proceed with the application without the assistance of the device. The request for the hearing device was not addressed on the record. [14] Counsel for the Manager submits that the Manager only became aware of any potential issue with Mr. P.’s hearing on the last day of witness testimony when the following exchange occurred between Mr. P. and the judge during cross-examination of Mr. P.: The Court: … so my question was that Mr. Sheppard testified that he believed that Ms. [P.] did have mental health issues. Mr. P.: Yeah. Page 6 The Court: So- Mr. P: I didn’t hear much of that, either, honestly, because I just didn’t hear it. The Court: Are you having some hearing issues? Mr. P: Yes, I, I do have hearing issues. I got a hearing issue, yes. The Court: Okay – Mr. P.: It was requested for some kind of, before the start, for some… some... I don’t know if it’s equipment or not, my lawyer asked about it, and the very first day the equipment, there’s only two pieces of equipment, they were in use down at the other court, I don’t know where, and I never heard anything about that after. The Court: Oh, I didn’t know that, sorry about that Mr. [P.], I would have talked louder. Mr. P.: Oh no, I heard most of what you said but some people I didn’t quite hear everything. The Court: Okay. Well let’s just talk about Mr. Sheppard now, or Dr. Sheppard I guess I should say… [15] The Manager argues that this ground of appeal should not succeed primarily because Mr. P.’s hearing impairment was not brought to the attention of the judge until it was too late to be accommodated and stated that “accommodation pursuant to section 14 of the Charter cannot be provided when no one knows it is needed”. The Manager also submits that Mr. P. was represented by counsel who Mr. P. submits was aware of his hearing issue and could have brought the issue to the attention of the Court. The Manager submits that the hearing impairment Mr. P. claims to suffer from is not as significant as he maintains noting that Mr. P. did not avail of the assistance of any hearing device in any prior meetings or proceedings between himself and CYS during the past four years. [16] Mr. P. submits that he did not hear all of the proceedings clearly thus he may have misinterpreted some of the information and that his ability to understand what was being said was impaired. From a review of the portions of the transcript provided on appeal containing Mr. P.’s testimony, it is clear from Mr. P.’s answers to the questions put to him that he understood those questions. He often repeated a part of the question in his answer, his answers were in direct Page 7 response and relevant to the question asked, and most often he did not ask anyone to speak up or repeat the questions. The narrative his answers created made chronological and logical sense. Mr. P. rarely asked for clarification of the questions put to him. When he did request a question be repeated or ask for clarification the judge took the necessary steps to ensure Mr. P. understood what was being asked or discussed. [17] Further, Mr. P. was represented by counsel who knew Mr. P.’s position and who did not note any impediment on the record that would impact Mr. P.’s ability to participate in the protective intervention hearing. Counsel would also have been able to clarify any particular part of the proceedings that Mr. P. may not have followed. [18] The appellants have failed to identify the portions of the proceeding Mr. P. alleges he was unable to hear, how his inability to hear those portions of the protective intervention hearing led to unfairness or how it would have affected the outcome of the appellants’ application. [19] The appellants cannot succeed on this ground of appeal as they have failed to establish that there was a breach of Mr. P.’s section 14 Charter right. The judge was not advised of the need for accommodation and Mr. P. was represented by counsel who could have noted any impediment Mr. P.’s hearing may have caused on the record, requested a hearing device on the record, or requested a postponement until such a device was available. Counsel for Mr. P. would also have been able to keep Mr. P. apprised of the proceedings thus diminishing any risk that Mr. P. might misunderstand what was happening. [20] The appellants also submitted that Mr. P. did not have time to read a report provided to him on cross-examination. There is no merit to this ground of appeal as the record shows that Mr. P. had sufficient time to review the report and neither Mr. P. nor his counsel indicated at the protective intervention hearing that he required more time or did not understand the contents of the report. Also, the appellants did not address how this may have affected the outcome of the hearing. Access Reports [21] Mr. P. and Ms. K. argued that the judge’s refusal to admit documents, specifically access reports and logs, at the protective intervention hearing was prejudicial and unfair and as such they were denied a fair hearing. Page 8 [22] The access reports and logs, prepared by an agency worker following each supervised visit between Ms. P., Mr. P. or Ms. K., and the two children over the course of three years, detailing everything that took place during the visit, were not admitted as evidence at the protective intervention hearing. The documents were disclosed to the appellants prior to the hearing. Counsel for the appellants did not request to have the documents admitted. Counsel for Ms. P., however, did inform the Court that Ms. P. sought to have all previous access reports admitted during the hearing at which time the following exchange occurred: Counsel for Ms. P.: [Ms. P.] has asked –She’s had a large number of access reports. She’s wondering if all previous access reports …could be filed with the court. …[T]here is a very large number. The Court: Do you have the access reports? Counsel for Ms. P.: Oh, yes. The Court: Why didn’t you enter them through [Ms. P.]? Counsel for Ms. P.: She’s raised the issue there. She wanted all of them filed. The Court: I know, but when she was on the stand, I mean, we didn’t go through them. Counsel for Ms. P.: No. The Court: We didn’t put them in. Counsel for Ms. P.: No, we didn’t. The Court: I don’t even have others. Counsel for Ms. P.: No. The Court: You said you’re worried I only have the bad ones. I don’t have any. Counsel for Ms. P.: Yes, … that’s been sort of a concern of [Ms. P.’s]. We just have the references to them. She’s … misunderstanding things that are going on. The Court: Yes, I’m just going to say that I have heard positive things about her visits with the children. Page 9 Counsel for Ms. P.: Yes. The Court: I have heard from testimony but not through reviewing any access reports. Counsel for Ms. P.: No. The Court: So, you know I’m not sure – Counsel for Ms. P.: I would agree there’s a lot of positive things said during the visits. The Court: Yes. Counsel for Ms. P.: And I think that would be sufficient. This was a concern that [Ms. P.] has been raising here, I think, but I would agree. A lot of positive things have been said. The Court: Do you have any comment on – you know. I have a lot of material to go through already. I don’t have positive or negative access [reports]. I have no access reports in front of me, so, you know, that seems to be the way the parties wish to present the case Counsel for Ms. P.: Yes. The Court: Then I’m quite happy with that. Counsel for the Manager: … CYFS’ evidence, in fact, wasn’t really through direct testimony. It was in the affidavits that had been given to my friends well in advance. Anything of concern is in the affidavits themselves. I’d suggest that, to file all of the access reports, I’d say, would be, like five or six file volumes of access reports, at least. It’s a tremendous amount of paper that’s generated, given the nature of these children’s placements. The Court: Yes. Counsel for the Manager: So, it would be unfathomable to even review that in a meaningful way through the course of this hearing… The Court: Yes. ..I have heard evidence from social workers ... Ms. P, ... her father, her mother about how the access visits have gone, and I don’t need-nor do I require access reports to be filed. … Page 10 [23] Ms. P. was concerned that the judge would only hear evidence from CYS relating to the negative aspects of her visits with the children and thus wanted all access reports admitted so that the judge could see the positive aspects of her visits as well. This is essentially the same position the appellants take as they argued on appeal that the reports “would have painted a different picture than what was presented at trial” in regard to the appellants and could have affected the outcome of the protective intervention hearing. [24] The Manager submits that all access reports and logs were disclosed to the appellants and counsel for the appellants could have entered the reports through a witness to highlight specific evidence or issues. The Manager took the position that filing all of the reports would be a futile exercise as it would be “unfathomable” to expect a judge to read hundreds or potentially thousands of pages of reports with “no focus or no sense of why they are being filed.” [25] Not only did the appellants not make the request to have the documents entered at the hearing but the appellants have failed to identify what the access reports would have established or how the outcome of the hearing may have been affected had the documents in question been filed. Nonetheless, it is clear from the above portion of the transcript that counsel and the judge agreed that there was nothing to be gained from admitting all the access reports as the judge had heard about the visits through the testimony of the social workers, Ms. P. and the appellants and it was determined that this was “the way the parties wish to present the case”. There is no merit to this ground of appeal. Conflicting Evidence [26] The appellants also argue that there was conflicting evidence presented at the protective intervention hearing; that is to say, the evidence presented by the respondents often conflicted with the evidence presented by Ms. P. and the appellants and that the judge did not give appropriate weight to the appellants’ testimony. The judge addressed the conflict in evidence, stating: 150 I have considered all of the evidence presented and have referred to a great deal, but not all, of the evidence in this written decision in order to provide a context of what has been happening during the life of the children and their immediate family. This context, as well as the present circumstances, forms the basis for my conclusions. In reviewing the evidence, I certainly appreciate that particular incidents referred to can be seen differently depending on the perspective of the people involved. 151 In saying that, I find that the evidence of the mother and her parents at the hearing is different from what they reported to social workers, physicians and other Page 11 service providers at various times. For example, the mother has at times indicated that her parents should not have care of the children for various reasons; however, at the hearing, she reports a positive relationship and testified that they would be suitable placements for the children if she was not successful in her application. The mother and the grandparents report no problems with the children when at home in their care, but there are multiple reports from social workers, school officials, physicians and other service providers that there were significant issues and challenges with both children before they came into care. The mother's testimony, in particular, seemed to be whatever she thought would be most helpful to her situation at any given time. 152 For these reasons, where there was a conflict in the evidence, I have generally preferred the evidence of social workers or other service providers because their observations and interactions with this family were documented at or near the time of various incidents. … 162 In addition to the excerpts and examples I have outlined from the three social workers' lengthy affidavits and testimony, which has largely been unchallenged, and considering the medical evidence which has been provided, including psychological evidence pertaining to Ms. P., there are many more examples where it is clear to me that the children's physical needs and emotional needs have not and are not being met by Ms. P. [27] It is clear from the judge’s reasons that she considered all the evidence presented at the protective intervention hearing and preferred the evidence of the respondent to that of the appellants. The appellants have not indicated how the judge misapprehended the evidence or identified any error in the judge’s reasoning. The appellants simply assert that it was unfair and prejudicial without any further explanation. A similar argument was addressed by this Court in R. (F.F.) v. F. (K.), 2013 NLCA 8, 332 Nfld. & P.E.I.R. 262: 19 The appellant also submits that, while the trial judge may not have made a material error nor had a serious misapprehension in his assessment of the evidence, he did not afford the appropriate weight to the appellant's evidence, and inappropriately gave greater weight to the respondent's evidence. I agree with the respondent's submission at paragraph 12 of her factum that this underlying argument is similar to that made in Cox v. Brady, 2002 NFCA 27, 212 Nfld. & P.E.I.R. 1. In that case Wells C.J.N. stated: [61] The appellant here has not established any error that can be said to be material. There is no basis for concluding that there was any serious misapprehension of the evidence by the trial judge. Instead what the appellant has done is listed some 24 separate determinations by the trial judge, quoted excerpts from the transcript relating to those 24 examples and is asking this Page 12 Court, on a reconsideration of all of that evidence, to exercise its discretion in a manner different than the trial judge exercised his discretion. While I may well have made a custody order different from that made by the trial judge, were I sitting as the judge at trial in this case, that does not permit me to substitute my discretion for that of the trial judge, on the basis of reconsidering the evidence in the manner requested by the appellant. That is the kind of reconsideration of the evidence that Bastarache J., speaking for a unanimous court in Van de Perre, specifically determined was inappropriate review by an appellate court. The appellant having failed to establish any basis for a reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion, there is no basis on which this Court can justify a reconsideration of the evidence, with a view to substituting its discretion for that of the trial judge. I would therefore decline to review the trial judge's decision in that manner. 20 The comments of Chief Justice Wells are apt in this case. This Court will not engage in a reweighing of the evidence where there was no serious misapprehension of it. The appellant's argument fails in this regard. [28] As stated in R. (F.F.) this Court “will not engage in a reweighing of the evidence where there was no serious misapprehension of it”. The appellants have not established any serious misapprehension of the evidence by the trial judge. There is no merit to this ground of appeal. Parenting Assessment [29] The appellants argue that at a trial readiness inquiry prior to the protective intervention hearing, the trial readiness judge ordered a parenting assessment in relation to Ms. K. and that the assessment was not properly completed. On appeal, the appellants filed a partial transcript of the trial readiness inquiry in which the judge refers to an assessment. The appellants have not, however, filed any type of documentation or pointed to anything on the record indicating that such a parenting assessment was court ordered or outlining the scope or nature of any such assessment. [30] The respondent submits that there was never a court-ordered parenting assessment in relation to the appellants. On appeal, counsel for the Manager explained CYS did undertake an assessment of Ms. K.’s ability to parent which included obtaining consents from Ms. K. to access information regarding her medical history, employment status, etc. and also an assessment of the suitability of her home. This was not a court-ordered assessment. The issue of the assessment arose at the trial readiness inquiry because Ms. K. had previously refused to cooperate with CYS and refused to provide the required consents. The Page 13 trial readiness judge told Ms. K., who was represented by counsel at the trial readiness inquiry, that she should provide the required consents as the Court expected CYS’ assessment of her parenting ability to be completed before the protective intervention hearing began because otherwise her application for custody may not be heard. [31] The judge hearing the protective intervention application referenced the results of CYS’ assessment of the appellants’ ability to parent at paragraphs 117 and 118 of her reasons for judgement stating “[CYS] conducted a significant other placement assessment with Ms. K. and Mr. P. and do not support placement of the children with them for a number of reasons”. She went on to list examples in support of her finding. [32] CYS conducted an assessment of the appellant’s ability to parent which, as was noted by the respondent, the Court was satisfied with. This assessment was not court-ordered nor did the Court require or order any further parenting assessment. There was no statutory requirement for a further parenting assessment in this case. The issue of an inadequate parenting assessment or request for further assessment was not addressed at the protective intervention hearing. There is no merit to this ground of appeal. CONCLUSION [33] In summary: 1. There was no breach of Mr. P.’s section 14 Charter rights; 2. The judge did not err by refusing to admit certain documents; 3. There is no basis on which to conclude that the judge erred in her assessment of the evidence; 4. There is no basis on which to conclude that there was any error in the assessment of Ms. K.’s parenting ability. [34] I would dismiss the appeal with no order as to costs. _______________________________________ C. W. White J.A. Page 14 I Concur: ___________________________________ B. G. Welsh J.A. I Concur: ___________________________________ F. P. O’Brien J.A.