DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2017 BCPC 461

Citation: British Columbia (Child, Family and Community Service) v. S.M.S. 2017 BCPC 461 Date: 20170607 File No: F16868 Registry: Abbotsford 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: Z.K.S. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: S.M.S. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. GAFFAR

Counsel for the Director: R. Caldwell Counsel for the Parent: D. Klassen Place of Hearing: Abbotsford , B.C. Dates of Hearing: May 15, 2017; May 19, 2017 Date of Judgment: June 7, 2017 INTRODUCTION [ 1 ] This matter concerns a young child named Z. The Director of Child, Family and Community Services (the “Director”) seeks a finding that the Z is in need of protection pursuant to s. 40 of the Child, Family and Community Service Act (“ CFCSA ”). If I make that determination, the Director then seeks a continuing custody order.

Such an order would permanently remove Z from his mother, S.M.S. (“SS”), and place the Child in a foster parent setting, pursuant to s. 49(4) and (5) of the CFCSA . The Director’s hopeful long-term plan is that Z will eventually be adopted by his current foster family. [ 2 ] I will now refer to Z.K.S as “Z”. He was born on [omitted for publication]. He was removed from SS’s care on December 17, 2015, when he was [omitted for publication] years old. Z is currently [omitted for publication] years old and has essentially been living with the same Ministry-approved caregivers since his removal.

I am informed that his father is deceased. [ 3 ] The Director seeks a finding that the Z was in need of protection on December 17, 2015 and at the present time, essentially due to the his mother’s unwillingness and/or inability to care for Z. Her situation is grounded in her substance abuse and related lifestyle. For generally the same reason, coupled with SS’s conduct and lack of improved parenting skills over the past two years, the Director submits that the situation has not changed sufficiently since Z entered the care of the Ministry in December 2015 to present day.

Accordingly, the Director takes the position that Z cannot be returned to SS now or within a reasonable period of time. [ 4 ] This matter is now at the Protection Hearing stage of the Child, Family and Community Service Act (“ CFCSA ”) process. SS did not attend these proceedings. I have heard the evidence of the social worker, Deborah Schlitt, who has been dealing with this family since September 2015.

I have also reviewed several related court orders, Ministry of Children and Family Development (“MCFD”) reports and assessments, and parenting-support worker notes. [ 5 ] Most, if not all, of the evidence in this proceeding constitutes hearsay, either in documentary or testimonial form. After a careful review of both forms of evidence, I accept the hearsay evidence as sufficiently reliable to make my findings, for the purposes of this hearing: s. 68(2)(a). Observations appeared to be noted down in a relatively contemporaneous manner, from which the witness (social worker) refreshed her memory.

Many events were not observed first hand by Ms. Schlitt. I accept that the details of Ministry interactions with this family were required to be and were regularly recorded, such that they could be reviewed by the necessary social workers, Ministry supervisors and the court. Given SS’s non-attendance at these proceedings, counsel for SS was not in a position to challenge the contents of the documents. BACKGROUND [ 6 ] In order to render my decision, it is important to understand the background events concerning the parents and the Child.

I have accepted the following as facts. [ 7 ] SS is now [omitted for publication]. Over the four-year period in which she dealt with the MCFD, SS provided information about her background and substance abuse. SS began using heroin at a young age. Approximately two years before Z was born, SS was able to maintain sobriety. Unfortunately, she relapsed into drug use just before Z was born. SS made the appropriate decision to attend (on her own) to the specialized ward for mothers with substance use issues at the Children’s Hospital.

She was [omitted for publication] years old when Z was born. [ 8 ] After Z was born in [omitted for publication], SS reached out to the MCFD for assistance in caring for Z once she left the hospital and in dealing with her substance use issues. SS cared for her child in the community, with the assistance of MCFD support services (three family service workers) and a friend. SS engaged with those services for approximately two years.

She maintained her sobriety during that time. [ 9 ] On July 17, 2015, the now [omitted for publication] year old Z was found unattended, wandering in his pyjamas on the streets of [omitted for publication], BC, by the police. The social worker sent by the MCFD to the police station recognized Z. Shortly thereafter, SS attended the station. SS indicated that she had a recent drug relapse. [ 10 ] The MCFD and SS entered into a Voluntary Care Agreement on July 17, 2015. SS agreed to enter substance use treatment with her son. Until those arrangements were finalized, Z initially remained with Ministry caregivers.

Z had a difficult time being separated from his mother, which impacted his sleep and fatigue levels. He displayed difficulties in speech (delayed development), eye contact, as well as arm and feet movements (flopping, stomping). His behaviour could not be managed by his caregivers at that time. [ 11 ] By August 6, 2015, SS was essentially caring for Z full time, prior to her entry into treatment. She entered into a Safety Plan with the MCFD, and was monitored by the MCFD during this time.

She agreed to work with her family support worker twice per week, remain clean and sober, undergo urine testing, and attend Z’s playgroup twice per week. SS’s urine testing was positive for amphetamines (not heroin) on one occasion. [ 12 ] It appears that SS entered the Peardonville House Treatment Centre on August 31, 2015. Z was permitted to live with her. Although SS’s engagement in the programme was initially strong, it fluctuated and diminished over time. She was unable to complete the programme due to tardiness, non-attendance and engagement issues.

SS indicated to the Peardonville personnel that Z’s health issues or inability to settle appropriately at night affected her attendance at various times. Eventually, SS was asked to leave the programme but permitted to stay a bit longer at the centre. Peardonville House listed her discharge date as October 27, 2015. She formally left the centre the day before the programme officially finished.

[ 13 ] At the end of October 2015, SS and Z returned to [omitted for publication], BC. She entered into an MCFD Support Services Agreement on November 13, 2015. She was required to enroll Z in day care to maintain community visibility. SS was supposed to enter into addictions counselling. A family support worker assisted SS during this period. [ 14 ] On December 17, 2015, SS overdosed on drugs in a house associated with drug activity. She had to be revived with Zarcan and taken to hospital. Z was found alone in another room in the house, in the vicinity of scissors.

The Director removed Z from SS’s care and placed him with his previous Ministry caregivers. [ 15 ] SS acknowledged her parenting difficulties and consented to the Director retaining interim custody of Z on December 22, 2015. She later consented to a Temporary Custody Order, permitting the MCFD to retain custody over Z for additional months. Over the next three to four months, SS visited Z regularly, twice per week. Her visits were supervised. [ 16 ] In spring 2016, her visits dwindled and she started missing meetings with her family support worker. After Ms.

Schlitt made several attempts to have SS re-engage with her support services and demonstrate consistency, SS’s visits with Z were suspended by MCFD. Because the bond between SS and Z remained strong, Z was greatly impacted by the dwindling and then suspension of visits. [ 17 ] Since spring 2016 to present day (approximately one year), SS had only one visit with Z in April 2017, for his birthday. He was profoundly impacted by the April 2017 birthday visit, and demonstrated behavioural difficulties afterwards.

ANALYSIS Underlying Principles [ 18 ] The Guiding Principles in s. 2 of the CFCSA infuse all aspects of my decisions concerning Z. The safety, well-being and best interests of Z are my primary considerations: ss. 2 and 4. Z is entitled to be protected from neglect or harm, or the threat of harm: s. 2(a). It is preferable for Z to be cared for by family members: s. 2(b). SS has been unable to do so in a consistent and stable manner since July 2015. Z’s maternal and paternal grandmothers, maternal great grandmother, and maternal uncle attended various family meetings with the MCFD in 2016 and early 2017.

By April 2017, it was clear that Z’s extended family was not in a position to assume responsibility for him. [ 19 ] The MCFD made support services available to SS (e.g. a family support worker, social workers) immediately after Z’s birth: s. 2(c). SS’s initial engagement lasted two years, but then fluctuated from July 2015 onwards. I note the need to make timely decisions for Z, so that such decisions can be implemented in a correspondingly timely manner: s. 2(g). [ 20 ] My paramount consideration is the best interests of this child (s. 4). The relevant considerations for Z include the following in s. 4(1): (

a) the child's safety; (

b) the child's physical and emotional needs and level of development ; (

c) the importance of continuity in the child's care; (

d) the quality of the relationship the child has with a parent or other; person and the effect of maintaining that relationship; . . . (

g) the effect on the child if there is delay in making a decision. [ 21 ] The best interests of the child, i.e. the safety and well-being of the child, are still balanced against the secondary but still substantial interests of his parent: Director v. Kim H. , 1999 BCPC 18 at para. 9 . Unfortunately, SS was given two opportunities on two separate days to attend these proceedings. In the absence of any plan from SS, I have obviously focused on the MCFD’s position and plan.

I do not determine if the Director’s assessment was “right”; I am not, in any way, beholden to the Director: Ibid at para. 10. [ 22 ] I may consider SS’s past conduct toward Z while he was in her care when considering whether Z should be placed in the continuing care of the Director: s. 68(1) .

Section 40 – Protection [ 23 ]

Section 40 requires that I determine whether Z needs protection.

Section 40 must be interpreted in conjunction with s. 2 (Guiding Principles), s. 4 (Best Interests of the Child), and s. 13 (When Protection is Needed). [ 24 ]

Section 13 uses the term “has been or is likely to be” in combination with specified types of harm. This phrase is both retroactive and prospective.

Section 13 represents a non-exhaustive list of circumstances when a child is deemed to be in need of protection. I find that two sub-paragraphs apply to SS and Z: 1) if the child....is likely to be physically harmed because of neglect by the child's parent [s. 13(1)(d)]; and, 2) if the child's parent is unable or unwilling to care for the child and has not made adequate provision for the child's care [s. 13(1)(h)]. [ 25 ] I must adjudicate the reasons for the removal and the Director must justify the original removal: Re: S.(J.) , 1998 WL 172473 (BCPC) at paras. 3 and 7, as cited in B.B. v.

British Columbia (Director of Child, Family and Community Services) , 2005 BCCA 46 at paras. 23 and 24 . I must consider whether the child was in need of protection at the time of removal: B.B. v. British Columbia, supra, at paras. 16 and 43. If I determine that the child was not in need of protection at the time of removal, the child must be returned to the parent entitled to custody (unless the child has already been returned) and terminate any interim order made under ss. 33.2(2), 35(2), and 36(3). At this point, the Director would no longer have jurisdiction over the parties or the child.

[26] If I determine that the child was in need of protection at the time of removal, I must continue on to determine if the child iscurrently, at the time of the Protection Hearing, in need of protection. I note that s. 40 uses the present tense: “At the protection hearingthe court must determine whether the child needs protection.” The provision does not say: “…whether the child needed protection”.Likewise, s. 13 (When Protection is Needed) stipulates: “if the child has been or is likely to be…” harmed in various specified ways.The s. 13 provisions are written in both the past and future tenses. [27] In B.B. v.

British Columbia, supra, at para. 25, the Court of Appeal refers to both time periods: at the time of removal and thetime period “from” the time of removal. The Court of Appeal also noted that the s. 40 protection assessment is closely linked with thedisposition assessments under ss. 41 and 49: 25. Counsel for the Director does not take issue with the highlighted rule. Moreover, she agrees that the finding under s. 40 must bemade from the date the children were removed from their parents' care.

I agree with both propositions and thus, with the approachRounthwaite P.C.J. took to the Director's application for continuing custody of C.R. This approach has the important advantage ofproviding a baseline for the assessment of a child's needs and parents' capacities under s. 49, just as it does for one under s. 41.

Onapplications under both sections, the circumstances that led to the child's removal are fundamental to the choice of the appropriate order.…[Emphasis added.] [28] In this case, I interpret the use of the term “from the date the children were removed from their parents’ care” as the time periodafter the removal. Such an

interpretation is supported by the requirement to interpret all provisions of the CFCSA in light of s. 2 (GuidingPrinciples) and s. 4 (Best Interests of the Child), which would necessarily require the Court to consider the circumstances relating to thesafety and security of the child both at the time of removal and after the time of the removal. [29] If the child is not currently in need of protection at the time of the Protection Hearing, the child must be returned to the parent, asabove. The jurisdiction of the Director ceases.

If I determine that the child is in need of protection at the time of the Protection Hearing, Imust then move on to consider s. 49, which provides for the disposition or placement of the child given the current or ongoing need forprotection: B.B. v.

British Columbia, supra, at para. 25. [30] There is much case law in British Columbia that allows the s. 40 Protection Hearing judge to examine, “…the circumstancesprevailing at the time of removal and over the period extending from then to the time of the hearing,” in order to determine if the child isneed of protection: British Columbia (Director of Child, Family and Community Service) v. J.M., 2012 BCPC 333 at para. 39, in whichWoods, P.C.J. cites the further decisions of Superintendent of Family and Child Service v. Gilmour, [1986] B.C.J. No. 1793 (May 14,1986), Vancouver No. CC851987 (B.C. Prov.

Ct.), Director of Family and Child Service v. Williamson and Williamson (April 10, 2001),Port Coquitlam No. F3980 (B.C. Prov. Ct.) and Re: D.M.J. and R.J., [1992] B.C.J. No. 724 (March 30, 1992), Prince George No. 21831(B.C.S.C.).

Woods, P.C.J. also notes that, “Evidence over that entire period will speak to, among other things, the possibility that thechild will be at risk of future neglect or abuse based on the pattern revealed by evidence of the recent and not-so-recent past.” (para. 39). [31] For s. 40, the onus of proof to establish that a child is in need of protection rests with the party who asserts the need forprotection. The standard of proof is on the balance of probabilities or, in other words, “The weight of the evidence must show that it ismore probable than not that the assertion being made is correct”: B.S. v.

British Columbia, (Director of Child, Family and CommunityServices), (BC CA), [1998] B.C.J. No. 1085 (Q.L.) at para. 26, (BCCA). The weight of the evidence mustdemonstrate that it was more probable than not that:

a) a past event occurred; and

b) there is a risk of the future event. (The test does notinvolve demonstrating that the actual future event will occur on the balance of probabilities): B.S. v. British Columbia, (Director ofChild, Family, and Community Services), supra, at paras. 27-28. The majority in the Court of Appeal explained further: 30. In assessing the risk of future harm, (which is called the threat of future harm in s. 2), there is room for a variable assessmentdepending on the nature of the threatened harm which is in contemplation.

A threat of harm through neglect of the child's hygiene mightwell have to be much more probable in order to meet the balance of probability test than a threat of serious permanent injury throughphysical or sexual abuse. Generally speaking, a risk sufficient to meet the test might well be described as a risk that constitutes "a realpossibility". [32] In this case, the Director has established, on a balance of probabilities that Z was in need of protection at the time of removal andcontinues to need protection at this time.

It is clear that SS’s drug use caused her to neglect Z and rendered her unable to care for Z inJuly and December 2015. Her actions made it likely he would be harmed, when he was found wandering alone on the streets of [omittedfor publication] when he was [omitted for publication] years old (July 2015) and when he was found unattended in separate room withscissors while she experienced a drug overdose in the next room (December 2015). Since Z’s removal from SS’s care in December 2015,SS has been unable to improve her circumstances and manage her drug addiction.

She has been unable to sufficiently reduce the risk oflikely harm and neglect to Z, if he was returned to her care now. [33] I am cognizant of the strong, loving bond between SS and Z. It is clear that he is confused and upset by his mother’s absence. Itis clear that she made efforts to seek help immediately before and after Z’s birth. It is important to also recognize that SS was able tomaintain two relatively stable two-year periods over the past six years. She continued to seek and accept support from the Directorthroughout this period until spring 2016.

Unfortunately, SS has been unable to regain her footing in a consistent and meaningful way. [34] The time has come to provide Z with the environmental and emotional stability he requires, given his extremely young andimpressionable age.

Section 49 – Disposition of the Child [35] Having found that Z “is in need of protection” pursuant to s. 40, I have also considered the Director’s plan of care for this childand the evidence adduced at this hearing. I must apply the provisions of s. 49. [36] First, it is clear to me that SS had notice of these hearing dates (May 15 and May 19, 2017). As I mentioned earlier, SS did notpersonally attend these proceedings. On the first morning of this hearing, she communicated with Ms. Schlitt and sought to start theproceedings in the afternoon due to transportation problems. I stood the matter down until the afternoon court sitting. SS was advised

that the hearing would start at 2:00 p.m. She did not attend. The hearing was subsequently continued onto a second day, which was heldfour days later during the same week. SS was advised of that date. She did not attend. Her counsel remained throughout the proceedingsand made best efforts to ensure that SS’s interests were represented during the hearing. [37]

Section 49 governs the disposition of the child once a protection finding has been made. I am required to place Z in thecontinuing custody of the Director if a parent is unable to or unwilling to resume care of the child: s. 49(4)(b). I am permitted, but notrequired, to place Z in the continuing custody of the Director if I find that there is no significant likelihood that the circumstances that ledto his removal will improve within a reasonable time or that SS will be able to meet Z’s needs: s. 49(a), (b).

In determining whetherthere is a significant likelihood that the circumstances will improve, I am required to consider SS’s past conduct towards Z, theDirector’s plan of care, and Z’s best interests. [38] The concept of a specified onus or burden of proof does not apply to the s. 41 or s. 49 assessment: B.B. v. British Columbia,supra, at para. 35.

All parties to the proceedings bear the evidentiary burden of demonstrating the most appropriate care plan for a child: …The parties, whether the Director, the parents, or an interested third person, all bear the evidentiary burden of demonstrating the mostappropriate care plan for a child. Once the Director has established on the balance of probabilities that a child is in need of protectionand the court has made that determination, whether on an application under s. 41 or s. 49, the court must assess the evidence before it todetermine the appropriate care arrangement within the strictures imposed by the Act.

Until a continuing custody order is made, the dutyto determine what care arrangement is most appropriate for a child lies with the court, not with the Director or the parents, unless theyagree.

No general rule should deflect the court's attention from the necessary inquiry into the child's needs and the parents' ability tomeet them, with such support as the community is able to provide. … [39] I note that the Court of Appeal at para. 45 used terms like, “no significant likelihood of change” in the child’s needs or theparents’ capacity within 6 months or any period of time and “[t]he improbability of future improvement” in the parents’ capacity whendetermining the facts in that case. [40] The “likelihood” in s. 41(2)(

c) requires consideration of the real risk of harm to the child: J.(D.D.) v. British Columbia (Directorof Child, Family and Community Service), [1999] B.C.J. No. 1526 (Q.L.) at para. 24 (BCSC). Fisher, J. explained this future possibilitywhich must be real and substantial, not speculative, in D.A.M. v. D.M.T., [2013] B.C.J. No. 392 (Q.L.) at para. 111 (BCSC): 111. In my view, the language used in the case authorities to determine whether there is a "real risk" to the children is akin to thelanguage used to determine hypothetical or future events. As set out in Athey v.

Leonati, (SCC), [1996] 3 S.C.R. 458,such events are given weight according to their relative likelihood, or the probability of their occurrence.

A hypothetical or futurepossibility is to be taken into account "as long as it is a real and substantial possibility and not mere speculation." I see this as a properstandard to apply in a family law case such as this to determine whether there is a real risk of harm of sexual abuse of children, either inthe past or in the future. [41] The term “little prospect it would be in the child’s best interests to be returned” does not require that the situation be hopeless orimpossible to restore the custody of a parent, before a continuing custody order must be ordered.

The test is something short of completeimpossibility: R.L. v. British Columbia (Director of Child and Families), [1998] B.C.J. No. 1727 (Q.L.) at para. 41 (BCSC). [42] When considering the likelihood of future harm to the child if the child is returned to the parent, I should also consider the harma child may suffer if not returned (Dir. v.

Kim H., supra, at paras. 74-75): [74] What is the likelihood if S.H. is returned to her mom that she will suffer such harm that there is little prospect it would be in herbest interests to be returned? [75] That question in its reference to “best interests” invites, among other things, a balancing of alternatives. So in addition to askingabout the harm she may suffer if returned, I need to consider the harm she may suffer if not returned. [43] The main purpose of the CFCS scheme is to provide solutions for unsatisfactory home situations: B.B. v. British Columbia,supra, at para. 34, citing J. (L.) v.

British Columbia (Director of Child, Family & Community Services), 2000 BCCA 446 at para. 28. TheCourt must decide what should be done concerning the care and custody of children on the best, currently available evidence: [J. (L.) atpara. 34.] [44] I conclude that there is no significant likelihood that SS’s circumstances will improve sufficiently to reduce the likely harm orneglect of Z. On the evidence before me, and in all the circumstances, it is apparent that SS is currently unable to care for Z now or inthe foreseeable future.

The July and December 2015 circumstances that lead to police and MCFD interventions, due to SS’s drugaddiction, augment the risk of physical harm to Z in a real and substantial way. SS’s lack of engagement over the past year with thesocial MCFD support services continues. [45] I do not underestimate the emotional impact of this decision on Z; it will be both confusing and acute. However, I must considerhis overall and other best interests: being safe from neglect and physical harm, having a consistent and stable family life, having hisemotional needs met steadily.

The plan of care is laying the foundation for adoption, hopefully with the only Ministry caregivers he hasever experienced. CONCLUSION [46] The following is the decision of this Court. [47] The child, Z, born [omitted for publication], was in need of protection at the time of removal. [48] The child, Z, is in need of protection at the time of this hearing.

[ 49 ] The Director’s application for a Continuing Custody Order is granted. _____________________________ The Honourable Judge D. Gaffar Provincial Court of British Columbia