DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2020 BCPC 295

Citation: British Columbia (Child, Family and Community Service) v. F.A.R. 2020 BCPC 295 Date: 20201218 File No: F19103 Registry: Port Coquitlam 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: M.J.R. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: F.A.R and J.M.R. PARENTS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. BROWN CFCSA MATTER RESTRICTION ON ACCESS s. 3(6) Provincial Court Act

Counsel for the Director: O. Nowland Counsel for the Parent: K. Quong Place of Hearing: Port Coquitlam , B.C. Date of Hearing: December 15 and 16, 2020 Date of Judgment: December 18, 2020 [ 1 ] THE COURT: This is my oral decision and in the event that a transcript is requested, I reserve the right to make any necessary editorial changes which would not however change the substance of my decision. Background [ 2 ] The presentation hearing in this matter took place earlier this week on December 15th and 16th, 2020. Due to scheduling constraints and in the interest of having this

summary proceeding concluded at the earliest opportunity to confirm the child, M.J.R.’s, legal status, I have considered the evidence and come to this decision over a very compressed time period. As a result, I will not provide as much detail in these reasons as I would have, had there been a longer turnaround time. I assure the parties, even had I had more time, my decision would be the same. [ 3 ] The child at issue, M.J.R. (M.), was born [omitted for publication]. His parents are F.A.R. (Mr. R.) and J.M.R. (Mrs. R.). M. was formally removed by the Director on September 18th, 2020.

The removal did not, however, change M.’s placement, which, since September 20th, 2019, has been with his paternal grandparents through a series of extended family program agreements. I will refer to those as EFP agreements. [ 4 ] After a series of three-month EFP agreements, the parents, wishing to have M. returned to their care, were not prepared to sign a further extension in September 2020.

This is what led to the Director’s decision to formally remove M. and the commencement of legal proceedings under the CFCSA - the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 . [ 5 ] The Director seeks an interim order under s. 35(2)(

d) that M. remain in the custody of his paternal grandparents under the supervision of the Director. The parents say that M. can be safely and unconditionally returned to their care under s. 35(2)(

c) or, in the alternative, be returned to them under the Director’s supervision pursuant to s. 35(2)(b). [ 6 ] On behalf of the Director, the two social workers who have had conduct of the file, Ms. Carlson and Ms. Ballard, were called as witnesses. Ms. Carlson became involved with the family in August 2019 when the Director was first notified by BC Children’s Hospital, until April 2020 when Ms. Ballard took over. Ms. Ballard remains the social worker with the conduct of the file. [ 7 ] The parents, Mr. R. and Mrs.

R., each also testified. [ 8 ] The circumstances that led to the Director’s involvement began in August 2019 when M. was only about two months old. During this time, the parents noticed that M.’s stool was blood-tinged and he was frequently vomiting. Mrs.

R. testified that they brought M. to their family doctor, consulted with the public health nurse, called the nurses’ 8-1-1 helpline with their concerns, and were reassured that he was fine and that they were being overly worried first-time parents. [ 9 ] On August 21, 2019, the parents became especially concerned when M.’s breathing was laboured and they observed his body stiffen. They called 8-1-1, were told to monitor M. overnight and bring him to hospital the next day, which they did.

At BC Children’s Hospital emergency department, tests did not reveal anything of note and M. was discharged home with a follow-up referral to a pediatrician. [ 10 ] On August 26th, 2019, M. was brought to Royal Columbian Hospital by ambulance after he stopped breathing while his father was giving him a bottle. While Mrs. R. was on the phone with 9-1-1, Mr. R. began administering CPR and splashed M. with cold water to try to stimulate him. When paramedics arrived, Mr. R. ran to let them in and Mrs.

R. continued with chest compressions. [ 11 ] According to the narrative set out in the October 11th, 2019 report of Dr. Kang which was entered as part of Exhibit 1, after initial testing at Royal Columbian, M. was transferred to BC Children’s Hospital for ongoing care. M. was admitted to the ICU where he was treated and stabilized. Initial test results raised concern that M. may have suffered non-accidental injuries.

M. remained at Children’s Hospital until September 20th, 2019 and during that time he underwent extensive testing and was examined by a series of pediatric specialists. [ 12 ] During the time M. was in hospital, his parents never left his side. When concerns arose that M. may be suffering non-accidental injuries, including a traumatic head injury, social workers and the police became involved. The parents were interviewed together and separately, and denied accidentally or deliberately hurting M. and said they had no knowledge of how he could have received the injuries. [ 13 ] Ms.

Carlson testified that the parents told her they thought M.’s medical condition could be from an infection or virus. Mrs. R. testified that she thought the injuries were related to birth trauma or from resuscitation efforts. Although they did not dispute the injuries identified by the doctors, Mr. R. and Mrs. R. each denied that they intentionally or accidentally harmed M. [ 14 ] As was noted on page 8 of Dr.

Kang’s October 11th, 2019 report, M. showed evidence of multiple injuries including, in layman’s words, firstly: fluid build-up on M.’s brain, requiring surgery and the insertion of a shunt to relieve the pressure. Secondly, there was retinal bleeding and thirdly, M. had fractured ribs. [ 15 ] On page 9 of his report, Dr. Kang described the findings as highly concerning and specific for non-accidental injury.

He reported that there was no alternative medical or accidental explanation, there was no evidence of biochemical disease, and that the findings were not consistent with birth trauma or the efforts made to resuscitate M.

[ 16 ] When M. was discharged from hospital he was referred to a number of healthcare and developmental resources and referred for follow-up with Dr. Kang in four-to-six-months’ time. Dr. Kang concluded his report saying no further investigations would be necessary until then. [ 17 ] The seriousness of M.’s medical condition, that his injuries appeared to be non-accidental and the concern that the parents might have harmed him, led to a decision by the Director that he would not be discharged from the hospital to his parents.

A safety plan was developed with the parents’ involvement, and the Director selected the paternal grandparents as an appropriate placement for M. [ 18 ] Ms. Carlson testified that when she met with Dr. Kang while M. was still in hospital, he believed that the rib fractures had occurred about 10 days prior to M.’s admission. Based on the healing rates of the ribs, Dr. Kang believed the injuries occurred over two incidents. He told Ms.

Carlson the head injuries were what one would expect after a high acceleration and deceleration event such as, for example, a motor vehicle accident or a baby being shaken. [ 19 ] Ms. Ballard testified that in about June 2020 she had a lengthy conversation with Dr. Kang to discuss, among other things, M.’s rib fractures. Dr. Kang advised that he had met with the radiologist in May and that the revised opinion was that the two fractures to M.’s ribs were at the same stage of healing and probably occurred at the same time. It remained the opinion of Dr.

Kang and the other members of the medical team that given the cluster of M.’s injuries, they were non-accidental. What is and is not to be determined at a Presentation Hearing [ 20 ] Counsel provided helpful authorities, which I have considered. As our courts have made clear, it is not at the presentation hearing stage that a determination is made whether a child is in need of protection. As was well said by my brother Judge McCarthy in the recent 2020 decision regarding the child M.O., a presentation hearing is to ensure that a child is not arbitrarily taken into care.

The essential issues for the court to determine are, was the removal justified and if so, what is the best way to care for the child until there is a full examination of all the circumstances at the protection hearing stage. The court must be satisfied there are objectively reasonable grounds to believe the child is at risk of harm. [ 21 ] The legal test to be decided is set out at s. 30(1) of the CFCSA .

The Director must show there are reasonable grounds to believe the child needs protection and that the child’s health or safety is in immediate danger or that there are no other less disruptive measures available to adequately protect the child. Section 35(1) requires the Director to provide at the presentation hearing a written report that includes the circumstances of the removal, an interim plan of care and any less disruptive measures that were considered prior to removal. [ 22 ] Section 35(2) sets out the four orders available to the court at the conclusion of a presentation hearing:

a) an interim order that the child be in the custody of the Director;

b) an interim order that the child be returned or remain with the parents under the supervision of the Director;

c) an order that the child be returned to or remain in the care of the parents, or

d) an interim order that the child be placed in the custody of someone other than the parents with the consent of that person and under the Director’s supervision. [ 23 ] The Director need only establish a prima facie case at the presentation hearing stage. In that sense, it is similar to a preliminary hearing in the criminal context with the issue being, is there admissible evidence that, if believed, could lead to a finding that a child is in need of protection.

Any conflicts in the evidence are to be resolved in favour of the Director and it is not until the protection hearing stage that those conflicting facts are fully determined. In assessing the evidence and whether it suggests a risk of harm, the test is much lower than a balance of probabilities. [ 24 ] In this case, there are no conflicts in the evidence as between all the witnesses. Both social workers spoke highly of the parents.

They acknowledged the parents’ significant efforts to address the Director’s protection concerns, their strong connection with M. and their consistent involvement with his entire care team. Both parents have been fully engaged with the Director since the signing of the first EFP and M.’s placement with his grandparents.

There is no dispute that they were amicable and cooperative throughout the past 15 months, even after they were informed in June 2020 that the Director’s plan had changed and that M. would not be returned to their care that September. [ 25 ] The parents were also cooperative when the police became involved, voluntarily turning over their cell phones and pass codes and agreeing to be interviewed up until the spring of 2020 when they declined to participate in further interviews on the advice of legal counsel. [ 26 ] The documents entered as evidence in this presentation hearing include reports from the family support worker, Ms.

Blair, confirming that the parents have had over 55 weekly sessions with her, with their overall attendance at almost 100% but for two missed appointments due to illness. Some of the sessions with Ms. Blair were described as therapeutic access that included M., some took place in person and then were virtual due to the COVID pandemic. The documents confirm that the parents have engaged in extensive programming through Share Family and Community Services and Cam-ray Child and Family Services, some at the direction of the Director and some on their own accord.

The parents have also begun one-on-one counselling. [ 27 ] The parents in their evidence demonstrated that they have been active participants as opposed to passive attendees in the courses and services they have taken

part in and at the many appointments they attended with M. They were able to explain in detail what they learned to improve their skills to parent M. and fully address all his needs. They acknowledged the value of what they had learned and confirmed their commitment to continue to access supports for themselves and for M. Their active engagement is also evident from the reports in which writers such as Ms. Blair noted the ways in which the parents have incorporated what they learned into how they interact with M. and support his every need.

[ 28 ] As well as seeking out and actively engaging in services to support themselves as parents, they have been fully committed to M. within the parameters of what was permitted under the EFP agreements. Initially, they were only allowed six hours per day supervised access with M. which was then increased to eight hours per day. Eventually, they were also granted one hour each day unsupervised access with the condition that they be together with M. and in the community. Recently this was expanded to three hours of unsupervised access twice per week in addition to the daily supervised access.

In addition, for some time now the Director has increased access to include M. spending every weekend from Friday night to Sunday night at the family home with his parents and under the supervision of the paternal grandparents. [ 29 ] According to Exhibit 3, at the time of the August 11th, 2020 care team meeting, the Director was permitting the parents to bring M. to all his appointments and sessions without a supervising family member.

This expansion in the parents’ time with M. did not happen on its own; it happened because over these past months the parents actively engaged with the social workers and did all that was asked of them and more, to gain trust and demonstrate that gradually spending more time with M. was not putting him at risk. I heard undisputed evidence that not a day has gone by that the parents have not been with M. Mrs. R. said that during the hours that they are with M., she and Mr.

R. are the ones who attend to his needs including feeding, bathing, playing and putting him to bed, all under the supervision of his caregivers. [ 30 ] The parents have also been active participants in M.’s medical and developmental care. They have attended virtually all of his appointments in the company of one of the caregivers and, as I have mentioned, more recently on their own. [ 31 ] The parents are both professionals working full-time in the social work field.

They testified about their days and how they managed their work schedules to take full advantage of the time they have been permitted to spend with M., as well as to attend his medical and other appointments including, for example, 1.5-hour sessions with the physiotherapist, all in addition to their own programming. [ 32 ] As well, according to Dr. Nugent’s notes from the May 13th, 2020 planning meeting which I will also refer to below, Mrs. R. was continuing to pump breast milk for M., a commitment that impressed Dr.

Nugent. [ 33 ] All of this has taken place within the context of the EFP’s which were signed and then renewed a number of times. Ms. Ballard testified that from the time she took over the file in April, her role included connecting with the family service provider, such as Ms. Blair, to check in on their progress. Ms.

Blair told her that the parents were fully engaged and had done everything asked of them, showed a good handle on what they had learned and how to apply it to their parenting of M. and successfully completed all the work they had been asked to do. [ 34 ] Also during April or May of 2020, as one of her duties, Ms. Ballard spoke to Cst. Dobie (phonetic) about the status of the police investigation. She was told that the investigation had not led to charges but the file would remain open pending any new information. Ms. Ballard said she informed Cst.

Dobie of the Director’s plan to possibly return M. to his parents and was told that the police had no concerns if the Director was satisfied it was safe to do so. She said Cst. Dobie noted that the RCMP had had no prior involvement with the family and said that if the parents had indeed harmed M., perhaps it was an isolated event. [ 35 ] There was also evidence provided of a number of planning meetings that took place between the Director, the parents and members of their extended family, as well as members of M.’s care team.

One example are the minutes from the collaborative planning and decision-making meeting which took place on May 13th, 2020. That was Exhibit 4, tab 4. Noted there was discussion of extending the EFP for another three months to September 20th, 2020 and, “…barring any new or major incidents, M. is on the trajectory to return home by September 2020.” [ 36 ] Ms. Ballard confirmed under cross-examination that there were no new or major incidents but even so, in June 2020, following an oversight meeting, she was informed that the Director had decided M. would not be returned to his parents’ care by September 2020. Ms.

Ballard understood that was because the Director was no further ahead in identifying how M.’s injuries had been caused and that there was still no assurance he would be safe if returned to his parents. Ms. Ballard testified that upon receiving this direction, she immediately notified the parents. [ 37 ] Despite this, the parents signed a further three-month EFP in June. Ms.

Ballard said she was clear with the parents that the Director was no longer going to work toward a return of M. during that three-month agreement and believes that they signed anyway because they remained hopeful that their son would be returned to them. Mrs. R. confirmed in her evidence that after being told that M. would not be returned by September, and after the formal removal, she and her husband continued to meet with the Director and pushed for answers as to what more they could do. On their own, they signed up for more parenting courses. [ 38 ] Ms.

Ballard said that after the decision was made to not work towards M.’s return home in September, the Director’s focus shifted in relation to the on-going expectations of the parents. Because they had done all that had been required as far as their parenting skills were concerned, the Director was of the view that there needed to be an examination of potential risk factors. Ms.

Ballard explained that since the parents had no history of domestic violence or mental health and no current drug and alcohol issues, given the serious nature of M.’s unexplained injuries, the Director was of the view that it was important to do further work through a psychiatric assessment to identify any other risk factors that the parents might be presenting. To this end, the Director requested that the parents undergo psychiatric assessments, which they both not only agreed to do, but also have asked how soon it could happen. [ 39 ] Mr.

R. was candid about a period of substance dependency from over 10 years ago. Mr. R. testified that he began dealing with the effects of depression as a teenager. After the death of his grandfather, he had difficulty coping and began to self-medicate with alcohol, marihuana and then heroin. With the assistance of his family, Mr. R. attended residential treatment from June 2008 to February 2009 and did so well, that he became a peer support worker.

Since then, he has gone on to support others with similar struggles over his years of employment, including since 2014 with Vancouver Coastal Health. [ 40 ] The Director requested and Mr. R. agreed to undergo random drug testing. I note there is no evidence that Mr. R. has engaged in illicit drug use since the time of his recovery.

[ 41 ] M. does not have ongoing medical concerns; however, his health and development are carefully monitored. He has regularly scheduled appointments with his pediatrician and other healthcare professionals such as audiology, ophthalmology, physiotherapy and occupational therapy. Mrs. R. provided detailed evidence of M.’s past and upcoming appointments and was clear in her understanding of why they are important to his wellbeing. She and Mr.

R. expressed unequivocally their commitment to continue ongoing engagement with M.’s healthcare providers and other support services and explained the benefit to him for this to continue. [ 42 ] M. was described by Ms. Ballard and his parents as having some mild developmental delays but that he is meeting all his milestones. His parents describe M. as a happy, friendly, active, sociable and well-adjusted baby. This is also reflected in the Exhibit 4 meeting minutes where it was noted by MCFD that: All professions have noted that J. and F. have good parenting skills and there have been no concerns stated.

Their parenting skills are also reflected in how well M. is doing daily and meeting his developmental milestones. [ 43 ] The parents testified that if M. was returned to their care, his daily

schedule for the immediate future would be largely unchanged. While his parents are at work, M. would continue to spend the same three days a week cared for by one of his grandmothers and two days by the other. Because M. is so sociable and there is consensus he would benefit from day-care, even on a part-time basis, he is currently on a waitlist. Having M. in day-care would also help to free up the grandmothers’ schedules. All his ongoing appointments would continue to be attended to by one or both of the parents with support from their family if needed. [ 44 ] In summarizing the evidence, Ms.

Nowland, on behalf of the Director, fairly noted that there is no question that the parents are committed to M. and his return to their care and that they are actively engaged and responsive. The removal, she says, was justified because the parents would not sign a further EFP and there were no less-intrusive measures available to address the Director’s safety concerns. She says that despite all the parents have done, the Director’s position is that given the serious injuries to M. that remain unexplained, there are no supervision terms this court can impose that would adequately mitigate the potential risk to M.

She says there is a risk posed by having M. with his parents in a less-controlled environment than he has been in and that any return to the parents must be gradual and measured. Further, Ms. Nowland says that the psychological assessment remains an important outstanding piece to help the Director better assess the parents’ risk factors. [ 45 ] On behalf of the parents, Mr. Quong says the Director has had plenty of time in the last 15 months to complete its assessment of them.

He points to the significant time that has passed since M. began living with his grandparents as alternate caregivers and that during those 15 months the parents have gone above and beyond the Director’s expectations and have shown they can safely care for M. He points to the increasing access over the months, including unsupervised, as well as weekends at their home with their parents with gradually less conditions and says that a full return of M. to his parents poses no appreciable increase in risk.

The parents are highly visible while connected to community and family supports and have shown that they are extremely involved, motivated, dedicated parents and can be trusted to keep M. safe. He submits a return to his parents is in M.’s best interests. Conclusion [ 46 ] I find that the Director has satisfied the first part of the test that there were reasonable grounds to believe that M. was in need of protection and to formally remove him when the parents were not prepared to sign a further EFP agreement.

I agree with the Director that at that point, no other less-disruptive measures were available that were adequate to protect M. [ 47 ] At the presentation stage, any question about the source of M.’s serious injuries when his parents brought him to BC Children’s Hospital must be resolved in favour of the Director. What the Director relied upon in removing M., among other things, are the conclusions of Dr. Kang and the other members of the Children’s Hospital Child Protection Unit that he suffered non-accidental injuries that occurred during a time that he was cared for only by one or both parents.

M. remains an especially vulnerable infant who continues to manifest the after-effects of his injuries and requires significant resources to support his future wellness. The removal was not arbitrary. [ 48 ] Having heard all the evidence, I am satisfied that it is in M.’s best interests that he be returned to the care of his parents under the supervision of the Director. Based on all the evidence before me, I am satisfied that the risk that the parents may pose to M. at this time is negligible and can be addressed through an interim supervision order.

I say this because the evidence in its entirety strongly demonstrates that the parents have been willing and able to fully cooperate and engage in a positive fashion with the Director, with M.’s healthcare and other service providers, as well as their own supports and safely care for M. and there is nothing to suggest that will change. There is no evidence that the parents have been anything other than completely focused on doing all they can to show that they are devoted, committed parents and have the knowledge and skills to safely look after M.

This is what they have been doing for the past 15 months. [ 49 ] As I am sure they know, the parents, and especially M., are most fortunate to have their families living nearby who have been able to step in and take over his care and provide other support. Had this not been the case, M. would likely have been formally removed upon discharge from hospital and placed in a foster home. This would have most likely made the substantial daily supervised access impossible. M. would have spent these early formative months with strangers as opposed to his family.

Instead, he has been where he should be, with his extended family and in a safe, controlled, graduated fashion spending more and more time with his parents who were able to attend to much of his care during his waking hours. [ 50 ] The transition period for the parents to be ready to resume fulltime care that Director’s counsel spoke of has been taking place over these months.

In my view, it is best for M. to now be returned to his parents under the Director’s supervision, continuing in almost all other respects with the routine of best practices that has been in place and which I accept will continue based on the evidence that I have heard. [ 51 ] I asked Director’s counsel to provide proposed supervision terms in the event that I decided as I have, and I agree that almost all of them are appropriate for ensuring M.’s continued health and safety.

Before I read them out, I will say that the only term that has been proposed by the Director that I have not included is the requirement that Mr. R. undergo random drug testing, even though he has agreed. I suspect he agreed because it is clear from all I have heard that the parents have and will agree to do whatever is asked of them by the

Director for M.’s sake. As I have already noted, F.R, had a dependency that he dealt with over 10 years ago. There is no evidence that Mr. R. has relapsed or that drug use has given rise to the Director’s safety concerns and so in my view there is no basis for that being a term in this interim order. I see the term as unnecessary to ensure M.’s wellbeing and an unwarranted invasion of Mr. R.’s personal security. [ 52 ] There will be an order pursuant to s. 35(2)(

b) that M. be returned to his parents under the following terms. What I would suggest in the

preamble is that the parents be identified by their full names and then a term that identifies them collectively as the parents. [ 53 ] The first term will be that the parents will continue to reside at their current address and will not change their address without first providing the Director with at least one week’s notice. [ 54 ] Two, the parents will ensure that M. is always in the care of a sober and responsible adult. [ 55 ] Three, the parents will continue working with support services recommended by the Director and will provide written consent authorizing the Director to speak with those support service providers. [ 56 ] Four, the parents will meet with the Director as requested and will continue to attend all care team meetings. [ 57 ] Five, parents will continue to meet with the family support worker and follow through with all their reasonable recommendations. [ 58 ] Six, the parents will continue to participate in facilitated family meetings, which will include extended family members, to ensure that everyone has the information needed to support the parents and M. and intervene if required. [ 59 ] Seven, the parents will ensure that M. attends all medical and developmental appointments, will follow all the recommendations made by the medical professionals and developmental service providers, and will provide written consent to the Director to speak with M.’s care providers. [ 60 ] Eight, the parents will participate in a psychological assessment as requested and to be paid for by the Director. [ 61 ] Nine, the parents will allow the Director to visit and inspect the home and meet with M. directly and privately at any time, whether scheduled in advance or not, and as often as the Director deems necessary to ensure M.’s wellbeing and safety. [ 62 ] Ten, if the parents breach any of the terms of this order, the Director may remove M. __________________________________ The Honourable Judge A.

Brown Provincial Court of British Columbia