Director v. M.G. and J.S.H. Date:, 2017 BCPC 156

Citation: Director v. M.G. and J.S.H. Date: 20170531 2017 BCPC 156 File No: 16652 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: A.H. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: M.G. PARENT AND: J.S.H. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.S. MARCHAND

Counsel for the Director: Mr. Scott Ellis Counsel for the Parents: Ms. R. Shoker, Agent for Mr. L. Scott, Q.C. Place of Hearing: Kamloops , B.C. Dates of Hearing: May 24 and May 25, 2017 Date of Judgment: May 31, 2017 INTRODUCTION [ 1 ] A.H. was born on [omitted for publication]. Her parents are M.G.(1) and J.S.H. A.H. was removed from her parents on March 3, 2017. [ 2 ] In the Director’s view, A.H. had been or was likely to be harmed due to her parents’ neglect and her parents were unable or unwilling to care for A.H.

The Director believed no less disruptive measure was available or appropriate. [ 3 ] The Director’s concern is that M.G.(1) lacks the capacity to meet A.H.’s needs and that J.S.H. has mental health issues which make him unable to meet A.H.’s needs.

The Director only removed A.H. after M.G.(1) and J.S.H. had accessed substantial services, a Safety Plan had failed and the parents withdrew their consent to an Extended Family Plan. [ 4 ] The Director seeks an interim order placing A.H. with A.H.’s maternal aunt, K.D., under the Director’s supervision. [ 5 ] M.G.(1) and J.S.H. acknowledge that, at the time of the removal, they were new parents who lacked parenting skills but maintain that they have since acquired the skills necessary to meet A.H.’s needs. [ 6 ] M.G.(1) and J.S.H. highlight the importance of establishing a close parental bond in these early months.

They say there are sufficient community resources involved in A.H.’s care such that A.H. can be safely returned to them under the Director’s supervision. As an alternative, M.G.(1) and J.S.H. ask that A.H. be placed in the care of M.G.(1)’s father, M.G.(2), under the Director’s supervision.

ANALYSIS [ 7 ] At this, the presentation, stage of the proceedings I must determine under s. 30(1) of the Child, Family and Community Service Act (“ CFCSA ”) if the Director had reasonable grounds to believe that A.H. needed protection and that either her health and safety was in immediate danger or that no less disruptive measure would have been adequate to protect A.H. I am not to determine whether A.H. was actually in need of protection. Rather I must determine if there is some evidence, which, if believed, could result in a finding that A.H. was in need of protection.

I must take the Director’s case at its highest and resolve any factual disputes in the Director’s favour unless the facts presented by the Director are clearly wrong or untrue. The Director has to establish a real risk of harm to A.H. which is a “much lower” standard than a balance of probabilities. [ 8 ] If a real risk of harm is established then I can make an order to address the protection concerns.

Under s. 35(2) of the CFCSA , the options range from a return to the parents to placing A.H. in the interim custody of the Director. [ 9 ] Taking the Director’s case at its highest and ignoring, as I must, any conflicting evidence presented by M.G.(1) and J.S.H., I have no hesitation in concluding that A.H. faced a real risk of harm if she was not removed. The evidence adduced by the Director, which I must take to be true, establishes the following: 1. Following her birth, A.H. was gaining weight at a concerningly slow rate, while in her parents’ care. She was failing to thrive; 2.

M.G.(1) has cognitive challenges associated with having a full scale IQ of 59; 3. J.S.H. has significant mental health issues, including PTSD, depression, intermittent impulse control disorder, and a history of multiple concussions such that he has difficulties controlling his emotions, struggles to maintain focus and has beliefs which are not based on reality; 4. Because of their challenges, both M.G.(1) and J.S.H. have had difficulty learning, retaining information and putting into practice new skills, including some essential parenting skills, shared with them by various service providers; 5.

A.H.’s failure to thrive relates to her parents’ inability to meet her needs by, for example, failing to recognize her hunger cues and failing to feed her an adequate amount for an adequate duration an adequate number of times each day; 6. The Director put a Safety Plan in place which involved M.G.(1) and A.H. living with K.D. so K.D. could supervise A.H.’s feedings; 7. The Safety Plan was successful in the sense that A.H. immediately began gaining weight at an appropriate rate. Unfortunately, the Safety Plan only lasted one week as M.G.(1) left K.D.’s residence and returned to her residence with J.S.H.; 8.

The Director then put an Extended Family Plan into place which involved A.H. remaining in the care of K.D. but this plan failed when the parents withdrew their consent to the plan; and 9. During the course of the Director’s involvement, M.G.(1) suggested her father as an appropriate supervisor or placement for A.H. but M.G.(2) did not present himself to or communicate with the Director to enable the Director to assess whether that was so.

[ 10 ] I am satisfied that this background provided reasonable grounds for the Director to believe that A.H. needed protection, that A.H.’s health was in immediate danger and that no other less disruptive measure was available and adequate to protect A.H. [ 11 ] The real issue is what order I should now make. [ 12 ] The parents’ proposed orders have some merit but both of their options involve risk.

If I return A.H. to M.G.(1) and J.S.H., A.H. would have an opportunity to bond more closely with her parents but I would be relying on her parents to care for A.H. without direct supervision for extended periods of time when they have not demonstrated an ability to do so. At best, M.G.(1) and J.S.H. have made modest improvements in highly controlled situations with very close oversight and assistance.

I would then be relying on the regular contacts the parents and A.H. would have with their various service providers to identify any problems and to intervene if necessary. [ 13 ] If I place A.H. in M.G.(2)’s care, again A.H. would have an opportunity to bond more closely with her parents but I would be relying on M.G.(2) to care for A.H. with no independent evidence regarding his ability to do so. The parents note that the Director followed a similar course of action when placing A.H. with K.D. prior to completing their due diligence regarding K.D.’s ability to care for A.H.

Beyond M.G.(2), I would also be relying on the regular contacts the parents and A.H. would have with their service providers to identify any problems and to intervene if necessary. [ 14 ] Both options proposed by the parents are, by design, based on optimism over caution and are reactive rather than preventative. Further, any future interventions under either of the parents’ proposals would be highly disruptive to A.H. [ 15 ] The Director’s proposal is not perfect.

There appears to be conflict between K.D. and the parents which, if unresolved, will continue to limit the parents’ time and opportunity to bond with A.H. at a critical time in A.H.’s life. On the other hand, unlike M.G.(2), K.D. now has an established track record of meeting A.H.’s needs. I can rely on her.

As for the parents’ time with A.H., M.G.(1)’s access to A.H. will remain unlimited and J.S.H. can have very regular contact with A.H. [ 16 ] While I recognize that family is the preferred environment for the care and upbringing of children and that many support services are already in place and being utilized by the parents, under s. 2 of the CFCSA , I must give paramount consideration to A.H.’s safety and well-being. [ 17 ] After carefully considering all of the circumstances, I am unable to conclude that M.G.(1) and J.S.H.’s proposals would adequately address the serious protection concerns raised by the Director.

I have concluded that the Director’s proposed order, with a modification, is the least disruptive way to address the protection concerns. The modification will be to require the Director to assess M.G.(2) as a primary caregiver and require the Director to place A.H. with M.G.(2) if satisfied it would be safe and appropriate to do so. I understand the process of assessing M.G.(2) would take four to six weeks which, while at a critical juncture in A.H.’s life, is still a relatively short period of time. Protecting A.H.’s health and welfare is certainly worth that extra time.

I also note that the assessment period will have to involve the Director and others observing A.H. with her parents and M.G.(2) so there will be opportunities for the parents to increase their time with A.H. during the assessment process. ORDER [ 18 ] For these reasons, I make an interim order that A.H. be placed in the custody of K.D. or, as set out below, M.G.(2), under the supervision of the Director with the following terms and conditions: 1.

K.D. shall allow the Director or his delegate access to her home at any time, 24 hours per day, 7 days per week, including weekends and holidays without prior notice or consent; 2. The Director and his delegate shall have direct and private access to A.H. at the discretion of the Director; 3. The Director shall have access to any documentation prepared by doctors, Infant Development, Public Health or other medical professionals and other service providers involved with A.H.; 4. K.D. shall ensure that any visits between A.H. and her parents are supervised and approved in advance by the Director or his delegate; 5.

The Director or his delegate shall promptly assess whether A.H. can safely be placed in the custody of M.G.(2); 6. If M.G.(2) consents and, in the Director’s exclusive opinion, can adequately address the Director’s protection concerns, the Director shall place A.H. into the custody of M.G.(2) under the same conditions as set out above for K.D. [ 19 ] Before closing, I want to commend M.G.(1) and J.S.H. for being open to receiving all supports and services offered. I know they love and adore A.H. and want the very best for her.

I also know they will work hard to become the best parents they can be and I wish them every success in their efforts. [ 20 ] I thank the parties, their witnesses and counsel. [ 21 ] This matter is adjourned to June 22, 2017 at 9:30 a.m. at the Courthouse in Merritt for commencement of the protection hearing. ________________________________________ L.S. Marchand Provincial Court Judge