DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2022 BCPC 300

Citation: British Columbia (Director of Child, Family and Community Service) v. G.H.and J.L. 2022 BCPC 300 Date: 20220718 File No: F-19380 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: C.H. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: G.H. and J.L. PARENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. BROWN Counsel for the Director: O. Nowland Counsel for the Parents: A. Huang Place of Hearing: Port Coquitlam, B.C. Dates of Hearing: April 11-14, 19, 20 and May 31, 2022 Date of Judgment: Oral

summary decision: May 31, 2022 Written decision: July 18, 2022

Introduction [ 1 ] C.H. (“C.”) was born on [omitted for publication]. Her parents are G.H. (“Ms. H.”) and J.L. (“Mr. L.”). [ 2 ] C. was formally removed by the Director upon her discharge from BC Children’s Hospital on February 17, 2021. At the time of removal, C. was recovering from the serious effects of numerous fractures to her ribs, wrist, lower arm and leg bones which occurred while she was in the care of her parents. [ 3 ] An order placing C. in the interim care of the Director was made on March 16, 2021.

The hearing of whether C. is a child in need of protection and the Director’s application for a three-month temporary custody order took place on April 11-14, 19 and 20, with submissions on May 31, 2021. [ 4 ] Given C.’s very young age, the many months since her removal, the extensive evidence that I heard, and the guiding principles of the Child, Family and Community Service Act , RSBC 1996, c. 46 , (“ CFCSA ”) , and in particular, that decisions relating to children should be made and implemented in a timely manner, on May 31 an order was made after the conclusion of submissions, with my written reasons to follow. [ 5 ] On May 31, I made a finding under s. 40(1) that at the time of C.’s removal, she was a child in need of protection and that she continues to be a child in need of protection.

After considering the Director’s plan of care and all the evidence, I concluded that any risk of future harm to C. could be addressed through a supervision order and that it was in her best interests to be returned to her parents. Accordingly, pursuant to s. 41(1)(a), I ordered that C. be returned to her parents Ms. H. and Mr. L., under the Director’s supervision for 6 months. [ 6 ] These then are my written reasons for my decision. The Witnesses [ 7 ] The Director and the parents each called an expert witness who was duly qualified, gave oral evidence and whose report was filed. For the Director, Dr.

Nita Jain was qualified as an expert in general pediatrics and child maltreatment. Dr. Jain is the medical director and consulting pediatrician of BCCH’s pediatric child protection service unit. Dr. Jain was directly involved with C. and her care. [ 8 ] The parents called Dr. Safwan Halabi who was qualified as an expert in pediatric radiology and imaging of child abuse. Dr. Halabi testified from Chicago, Illinois where he holds positions with the Children’s Hospital, Northwestern University and other institutions. Dr. Halabi’s work includes being part of a multi-disciplinary child abuse team.

As a pediatric radiologist, he has expertise in interpreting radiological signs of child abuse. [ 9 ] Social workers Hailey Pitman and Stephanie Morgan testified for the Director. The parents each testified, as did Mr. L.’s mother H.L. and Mr. L.’s sister C.L. The parents also called K. Allison Blair, Kristel Galvais and Melissa Schmalz, each of whom provided access supervision and delivered programs and other support services at various times since C.’s removal. The Circumstances Leading to the Removal [ 10 ] On February 4, 2021, Ms. H. and Mr. L. brought C. to BC Children’s Hospital emergency department.

Earlier that day, C. had an appointment with a family doctor for her two month check-up and vaccination. During the appointment, C. exhibited signs that she was having difficulty breathing. The doctor advised that the parents bring C. to BC Children’s Hospital immediately, which they did. By the time they arrived at the hospital, C. was in respiratory distress and was quickly rushed for a chest x-ray. Dr. Jain described C.’s condition at the time of her admission to the hospital as life-threatening. [ 11 ] The x-ray revealed a large mass in C.’s left chest area which was compressing her lungs.

Doctors initially thought it was a hernia which was later ruled out. C. was put on a BIPAP to push air into her collapsed lungs to help her breathe. Once she was stabilized, C. was moved to the pediatric ICU and underwent further testing. [ 12 ] A CT scan revealed that the mass was pooled blood – a hematoma. The CT scan also showed that C. had multiple fractures to her front and back ribs and bony fragments were identified within the hematoma. It was believed that the hematoma was caused by the puncture of one or more blood vessels by a rib fragment.

The fractures were at different stages of healing, indicating that they did not arise out of a single event. A chest tube was inserted to drain the hematoma. A faint brown 2.5 cm x 2.0 cm bruise was observed on C.’s sternum. Given the extent and nature of C.’s injuries, the hospital’s Child Protection Service Unit (“CPSU”) became involved. [ 13 ] On February 5, Dr. Jain and a CPSU social worker interviewed the parents to discuss the findings so far, to gather C.’s history and to discuss what the next investigative steps would be. Dr.

Jain described the parents as shocked, puzzled and concerned to hear about C.’s condition and the initial findings. They advised there had been no accident, no fall and both denied mistreating C. Dr. Jain testified that she believed the parents when they said they didn’t know how C. was injured. She agreed that they both showed a genuine desire to know what happened to C., as well as great concern for her. Dr. Jain said she had no doubt the parents wanted what was best for C. [ 14 ] The parents testified that they were horrified to hear about C.’s injuries.

They wracked their brains to try and figure out what could have happened. They reported to Dr. Jain that Mr. L. did certain manoeuvres on C. to relieve gas and wondered if this could have caused the injuries. They described how Mr. L. burped her and wondered if it could have been too hard. They described the other techniques Mr. L. used to relieve C.’s gas. One such technique was cycling C.’s legs and then pressing them up into her abdomen. Sometimes Mr. L. would press on her abdomen to expel gas. Dr. Jain expressed doubt that these manoeuvres could have caused C.’s

injuries. [ 15 ] By the time of the February 5 meeting, testing had eliminated cancer. Dr. Jain explained that there would be further tests, including checking for a possible metabolic disorder. [ 16 ] The parents’ first contact with MFCD was with an after-hours worker on February 6. Ms. H. testified that up to that point, she had no idea what MCFD was as she had never had any sort of prior involvement with or knowledge of them. Ms. H. and Mr. L. agreed to a safety plan whereby Ms. H. would continue to stay with C. in hospital, under the constant supervision of C.L. or H.L., who spelled each other off.

Because of Covid, only one parent could stay with C., but Mr. L. came to the hospital daily. Ms. H. pumped so that C. could continue to breastfeed once she was well enough. Over the next days, C. improved. Ms. H. and Mr. L. continued to cooperate and had interviews with MCFD as well as police to whom they voluntarily turned over their cell phones. [ 17 ] The parents were interviewed separately by Ms. Pitman on February 9. She testified that they were friendly, forthcoming and emotional at times. They described the gas-removing techniques. Mr. L. was concerned he may have used too much pressure. Ms.

H. also wondered if Mr. L. had used too much pressure. She told Ms. Pitman that she didn’t like to watch Mr. L. burp C. and at the time, had wondered if she was being overly sensitive. Ms. H. was open with Ms. Pitman that Dr. Jain had told them that their explanations would not have caused C.’s injuries. [ 18 ] On February 10, Ms. H. met with Dr. Jain and the CPSU social worker again and informed them about another gas-removing technique Mr. L. had used. This involved placing his hands around C.’s abdomen, with his thumbs in front and fingers in the back. Dr. Jain said that Ms.

H. told her this was sometimes difficult to watch because C.’s cry would change and she seemed to be in pain. C. would however settle easily afterwards, so Ms. H. attributed the cry to pain from gas, not the technique. She told Dr. Jain Mr. L. did this about two times per week, however, in her direct examination, Ms. H. said the move was done daily. Ms. H. testified that she never thought that Mr. L. was injuring C. She said she would not have tolerated it and that he wasn’t the type of person to harm C. in any event. Ms. H. testified that the social worker said she would follow up with Mr.

L. for further information about this maneuver, but she never did. [ 19 ] On February 12, the parents had a meeting with MCFD representatives, Dr. Jain and other members of the CPSU team and hospital staff, H.L. and C.L. By then a skeletal survey had been done. Dr. Jain informed the group that the skeletal survey revealed 42 fractures to C.’s ribs, her right arm, left hand and both legs. C.’s right arm was casted to manage the fracture to her ulna. Ms. H. testified to crying out in horror when hearing that her daughter had broken bones all over her body and asking how that was possible.

She emphasized in her evidence as did Mr. L., that they did not dispute or doubt the medical findings, they simply were in shock as to how C. could have been so severely injured. [ 20 ] The parents were informed that although some testing was still to be done, C.’s injuries were considered to be non-accidental and unlikely to have been caused by the gas-relieving techniques, especially the injuries to her long bones and hand. Ms. H. testified that they asked if there was a doll available so Mr. L. could demonstrate the techniques, and this was not followed up on. She felt they were not being taken seriously. Dr.

Jain testified that she did not recall the parents proposing a demonstration with a doll, but said it was possible. In any event, the demonstration didn’t happen. [ 21 ] The family was told there was going to be a formal removal, and C. would be placed with a foster parent who had already been identified. Ms. H. testified to being in shock, given how cooperative they had been with every request made of them. She and Mr. L. offered to do whatever MCFD wanted to avoid having C. in the care of a stranger.

They offered to install cameras in their home, wear body cams and have a family member stay with them 24-7. [ 22 ] The MCFD representatives made some calls, then advised that instead of a removal, there would be a new safety plan signed, since the current one was expiring that day. What was planned was that after C.’s discharge, the same level of supervision would be replicated at home. Ms. H. said she and Mr. L. broke down in relief. The safety plan was signed, and Ms. H. testified that she understood it would run for two weeks. [ 23 ] What followed was the Family Day long weekend. Ms.

H. said they got a call during the weekend from an after-hours worker who advised that there would be two changes to the plan: that C. would be discharged to C.L.’s care and that there would be no overnights for the parents. No reason for the change was provided. Ms. H. said on the one hand it was devastating to not be with C. overnight, but on the other, she and Mr. L. were relieved that she would be with family. The plan then changed again in that because C.L. worked full-time, it was proposed and accepted by MCFD that Mr. L.’s father H.L. and his wife J. (“Ms. J.”), would instead be C.’s caregivers. Ms.

H. said that another change to the plan was that the time frame had increased from 2 weeks to 3 months. [ 24 ] Because all these changes had occurred over the weekend with an after-hours social worker, Ms. H. and Mr. L. said they weren’t prepared to sign until they spoke with their social worker, Ms. Pitman and understood the reasons for the changes. Ms. H. left a voice mail for Ms. Pitman, but her call was not returned. [ 25 ] On February 17, Ms. Pitman called to advise that MCFD had reconsidered and was moving forward with a formal removal. Ms.

Pitman testified that this change in direction happened after her Team Leader determined that a safety plan was not sufficient to protect C. and that something longer-term was required. [ 26 ] C. was discharged from the hospital on February 17, 2021, to the care of H.L. and Ms. J. The parents were initially allowed supervised access daily between 10:00 am and 2:00 pm and 6:00 pm until 8:00 pm to allow for Ms. H. to continue breastfeeding C. The Family and C.’s Background [ 27 ] Ms. H. and Mr.

L. married in 2017 and describe themselves as happily married, with common interests and values, including respect, social responsibility and peaceful interaction. They have a network of supportive family and friends. They testified that they do not have issues with drugs or alcohol and there was no evidence to the contrary. Ms. H. testified to having some past struggles with depression, but not to the extent that it affected her ability to parent. There was no evidence that led me to conclude otherwise.

[ 28 ] Ms. H. and Mr. L. were thrilled when she became pregnant. Because Ms. H. was pregnant during the Covid pandemic, in-person prenatal classes were not available. She and Mr. L. educated themselves on prenatal and infant care, relying on books and online resources. [ 29 ] C.’s birth was uncomplicated. Ms. H. described C. as perfect then and now. Mr. L. was able to take about 2 weeks paternity leave and when he returned to work, his

schedule was flexible and allowed for some work from home. [ 30 ] Despite the Covid restrictions in place at the time, Ms. H.’s mother came to stay for a few weeks to help out. Mr. L.’s parents, C.L. and some of their friends also came by to visit and help out, including dropping off groceries and assisting with laundry. [ 31 ] Mr. L. was fully involved, attending to all C.’s needs except for breast-feeding. Once Ms. H.’s breast milk was established, Mr. L. would sometimes give C. a bottle to assist with the night feeding. He made sure that Ms.

H. was taking care of herself and he helped with cooking, laundry, cleaning and walking their dog. [ 32 ] Ms. H. and Mr. L. described their parenting style as loving, collaborative and focused on C. This was confirmed by H.L. and C.L., who observed Ms. H. and Mr. L. parenting both before and after C.’s removal. They testified they did not observe anything about the parents to cause them concern in the weeks before C.’s hospitalization. [ 33 ] According to the testimony of her parents, H.L. and C.L., C. was a healthy, happy and content baby up until a week or so before February 5.

Because of Covid restrictions, they didn’t have any home visits from the public health nurse. A midwife came by during C.’s early weeks, weighed her and noted a small drop in weight but told the parents it was not outside the range and not of concern. [ 34 ] Based on their self-study before and after C.’s birth, it appeared to her parents that she was thriving and meeting the usual developmental milestones. Ms. H. was nursing C. and they kept track of her feeding times and diaper changes. C. was growing out of her sleepers and moving up in her diaper size, indicating to the parents that all was well.

When they had questions or concerns, they called the 811 nurses line and also asked family and friends. [ 35 ] One of the occasions the nurses line was called was when the parents noticed C. wasn’t feeding as well as she had been. There was a concern that Ms. H. might have thrush, and this was confirmed when she went to a primary care clinic the next day, Saturday, January 30. The doctor examined Ms. H.’s breast and confirmed she had thrush. Although the doctor didn’t see anything in C.’s mouth, it was recommended that they both be treated. Ms.

H. testified that during the visit a nurse undressed C. and checked her heart rate. She was not weighed. [ 36 ] Ms. H. was prescribed a cream to apply to her breast and C. was prescribed a medicine that had to be applied to the inside of her cheeks and tongue. Ms. H. said the medicine smelled awful and C. would cry when it was being administered. [ 37 ] C. wasn’t nursing well and was fussy for the next days, crying more than usual and not wanting to be put down, which the parents attributed to thrush and the medicine.

They were supposed to give her the medicine for the week but stopped the day before her scheduled 2-month appointment on February 4 because of their concerns about C. Ms. H. testified that she noticed C. was having difficulty latching and it was hard to settle her at night. They tried giving her a bottle which didn’t help. [ 38 ] The morning of C.’s appointment, the parents noticed a bulge on C.’s left side and also a bruise on her sternum. Because of Covid, Mr. L. wasn’t able to attend C.’s appointment, so they made notes of what they wanted to make sure to discuss with the doctor. [ 39 ] Ms.

H. testified that C. started crying as soon as her car seat straps were tightened and she seemed to have trouble breathing. C. cried most of the short drive to the doctor’s office which Ms. H. said was unlike her. [ 40 ] At the doctor’s office, C. was undressed and weighed. Ms. H. was shocked to discover that C. had lost 1 or 2 pounds. Ms. H. pointed out the bruise to the doctor, which she was worried might have been caused by a button pressing against C. when she was in the carrier.

She said the doctor didn’t say anything about the bruise. [ 41 ] The doctor wanted to listen to C.’s heart but she was crying so Ms. H. tried nursing her to settle her. She said C. nursed a bit, but had difficulty; she described it as the worst nursing session ever. The doctor managed to get C.’s vital signs and pointed out inter-costal (between the ribs) tugging which indicated she was working hard to breathe. This led to the immediate referral to Children’s Hospital. Ms. H. said that C. continued to cry in her car seat as they made their way there. The Expert Evidence Dr. Jain [ 42 ] Dr.

Jain’s report dated March 29, 2021, was entered by the Director as part of Exhibit 1. [ 43 ] In her report and in her oral testimony, Dr. Jain described the variety of testing that C. underwent to explore whether any metabolic condition could have caused or contributed to her injuries. The tests did not reveal anything of concern. [ 44 ] Two skeletal surveys were done on C.’s body in February and March 2021. Dr. Jain explained that the skeletal surveys entailed taking about 20 or so x-ray images in order to reveal every one of C.’s bones. She said a skeletal survey can pick up even subtle fractures. Because Dr.

Jain isn’t a radiologist, she reviewed all of C.’s images with Dr. Mawson, who is. [ 45 ] Dr. Mawson’s report of the February 8, 2021 skeletal survey report is at pages 144-146 of Exhibit 1 (the Director’s Book of Documents). In his report, he described some of the rib fractures as “acute” and some as “recent”. Dr. Jain explained that “acute” means fractures showing little if any healing and less than 1 week old. “Recent” means fractures showing greater signs of healing, and that would have occurred between 1-5 weeks prior.

[ 46 ] Dr. Jain testified that although it’s not in Dr. Mawson’s report, 34 fractures to C.’s ribs were identified. In addition, there were fractures to her right ulna, left hand and to each of the three long bones of both legs, totalling 42 broken bones. [ 47 ] Dr. Jain explained what Dr. Mawson meant by the “classic metaphyseal lesions” referred to in his report. She said these were observed at both ends of C.’s leg bones. Dr. Jain said that shaking or pulling can cause the type of force that causes the metaphyses to pull away, or separate. Dr.

Jain said that the ordinary handling of a baby does not cause this type of injury. She did not believe that the cycling motion described by the parents could have caused the fractures to the leg bones unless it included twisting, pulling or tugging in a very forceful manner. [ 48 ] Dr. Jain was cross-examined about the information that the parents provided to Dr. Halabi where Mr. L. described flinging C. over his shoulders and down his back, in what was called the “sack of potatoes” move. She was asked if that could have caused the leg injuries.

She said it was possible with enough force since the upper body of an infant is much heavier than the lower half. Dr. Jain added that it was shocking for her to visualize the move and the force that would have been required for C.’s metaphyses to separate. She described it as a highly inappropriate way to handle a baby. [ 49 ] Dr. Jain confirmed that her opinion was unchanged after reading Dr. Halabi’s report. She maintained her opinion that the injuries to C.’s leg bones were caused by maltreatment and were not caused by playful handling, given the force that would have been required. [ 50 ] Dr.

Jain described C.’s injuries as unique because in her experience they are only seen in cases of child maltreatment. She used the term “child maltreatment” rather than “child abuse” and explained that in the U.S. “abuse” is the preferred term and in Canada, there is a trend to use “maltreatment”. She said this is because abuse has a more negative connotation, whereas maltreatment is a broader term and is understood to mean a non-accidental injury inflicted upon a child. Dr. Jain was asked on cross-examination if by non-accidental she meant intentional.

She responded that it is not her role to assess intention, but she likes to believe that in most cases, when a caregiver hurts a child, they don’t mean to. [ 51 ] Dr. Mawson described the fractures as “highly specific for non-accidental injury” and Dr. Jain agreed. Dr. Jain said she and Dr. Mawson reached this conclusion because of what she went on to describe as a whole constellation of concerning factors, including the number of fractures and their location. Dr. Jain explained that fractures are traumatic injuries caused in response to the application of excessive force.

In C.’s case, there were multiple fractures at various stages of healing to different parts of C.’s body. Dr. Jain said that in her experience, an infant’s ribs are almost never fractured, even during CPR, other than in cases of maltreatment. Because C. was only two months old she was obviously not mobile, she hadn’t fallen or been dropped in a car accident. Her injuries were also not the type associated with a traumatic birth – and C.’s birth had been routine in any event. [ 52 ] Dr.

Jain was challenged on cross-examination whether she agreed that seeing a demonstration of the gas-relieving would have been important. She said while it may have been helpful, she felt she had a good understanding of what happened based on what the parents told her. What was determinative was not so much the technique, but the amount of force to cause the injuries. [ 53 ] Dr. Jain was of the view that it was possible that the gas-removing techniques described by the parents could have caused the rib fractures, but only if excessive force was used. She was asked to define excessive force. Dr.

Jain explained that giving a specific measure of force was outside her expertise, but her descriptor would be force recognizable to anyone who sees it, that goes beyond how a baby should be treated. She added - the kind of force that might elicit a response from someone witnessing it. Dr. Jain said that squeezing C.’s abdomen to the point that it caused rib fractures would have been painful and likely elicited a cry or a different sort of cry. [ 54 ] Dr. Jain was asked on cross-examination if it was possible that Mr. L. didn’t realize he was using too much force.

She said that was hard for her to accept, since Ms. H. had told her it was sometimes hard to watch and C. seemed to be in pain. She said, in her opinion, it should have been easily recognizable, even to a child, that Mr. L. was using too much force. Dr. Jain said she has worked with 100’s, even 1000’s of first-time parents, most of whom take the opposite approach and are overly cautious with their babies. [ 55 ] Dr. Jain said that gas in a baby does not require treatment and the methods used by Mr. L. are not something she has ever heard of or would recommend. [ 56 ] Dr.

Jain also testified about the fractures to C.’s lower arm (her ulna) and hand. She described the fracture to the ulna as an oblique fracture, in other words, diagonal. When asked what could cause such a fracture, Dr. Jain said that was difficult to answer. She said it often results from twisting and can be a sign of maltreatment, but is also known to occur accidentally. The break to the hand bone was described as a “buckle fracture” and Dr. Jain said it’s the type of injury seen when someone falls down on their hands. [ 57 ] Dr.

Jain said the parents wondered if the fracture to C.’s arm or hand could have been caused when a dog jumped on C. when she was being held. Dr. Jain felt this was unlikely, especially since the fractures to her arm and hand were to the opposite limbs, rather than same side. She agreed it might not have been noticeable to the parents that C.’s arm or hand were injured given her young age. Dr.

Jain said she believed that if the parents had noticed that C. was not moving her arm normally, they would have told the doctor when they brought her in for her check-up. [ 58 ] There were no fractures or other injuries to any other part of C.’s body, except for the bruise. Dr. Jain said a bruise is always of concern when seen in an infant because it indicates some sort of trauma in a non-mobile child. She said a bruise is often a red flag for other sorts of trauma. Dr. Jain was unable to tell the age of the bruise by its colour. Dr. Jain agreed that the bruise could have been caused by Mr.

L. pressing his hands around C.’s torso to relieve gas. [ 59 ] Dr. Jain agreed on cross-examination that it may not have been obvious to the parents that C. had numerous fractures, just as it wasn’t obvious to the doctors who saw her on January 30 and February 4. She said infants can learn to self-immobilize in response to pain, which may or may not be noticeable. She agreed that sometimes fractures aren’t obvious even to pediatricians which was the reason for the skeletal survey. Dr.

Jain said it can often be difficult to identify pain in an infant since they’re non-verbal, but one of the best indicators in C.’s case would have been her difficulty nursing. [ 60 ] Dr. Jain was challenged why she didn’t interview any of the extended family to gain background on how the parents treated C.

and said that was MCFD’s role, not hers. She said when she interviewed the parents, it was as an MD taking C.’s medical history. Dr. Jain said she wasn’t looking into the parents’ mental health or drug use, although I note she included a Family and Social History

section in her report that touches on those very issues. [ 61 ] Dr. Jain agreed that psycho-social factors are important, but said at the same time, child maltreatment occurs across all segments of society and it is important to avoid bias based on stereotypes about what kinds of people are more or less likely to harm their children. She added that the scope of C.’s injuries spoke for themselves and led to her conclusion that they were the result of maltreatment. Dr. Jain said that psycho-social information would not have changed her opinion which was strictly a medical conclusion. [ 62 ] Dr.

Jain disagreed with the proposition that parents who harm their children are more likely to hide it than bring them to get medical help. She said in her experience, many parents who have injured their children bring them in when they realize something is wrong. She could not say how often the opposite is true. [ 63 ] Dr. Jain agreed that C.’s parents were attentive and that Ms. H. stayed with her throughout her time in hospital, but added that most parents do. She also agreed that none of her interactions with Ms. H. or Mr.

L. caused her concern, nor did she receive any negative reports about them from hospital staff. [ 64 ] A second skeletal survey was done on February 22. It showed that there were no new fractures, confirmed C.’s bone density was normal and that her bones were healing as expected. Dr. Halabi [ 65 ] Dr. Halabi’s report was entered as part of Exhibit 3. His report was based on video interviews with the parents and his review of C.’s lab, imaging and clinical reports during her time in BC Children’s Hospital. The report included some of the images Dr.

Halabi felt were most relevant and he addressed each one in turn, explaining its significance. [ 66 ] Dr. Halabi testified that the work done by the BC Children’s Hospital team to investigate whether C. had been abused was done according to established practice. [ 67 ] Dr. Halabi was largely in agreement with the BC Children’s Hospital findings, including Dr. Mawson’s radiological report and Dr. Jain’s report, and explained where his opinion diverged. For example, he counted 26 rather than 34 rib fractures. He disagreed that there were rib fragments in the hematoma. In Dr.

Halabi’s opinion, the hematoma was not caused by pieces of rib that had broken off but rather by ribs that were off their anatomical alignment, in other words, that had been fractured and displaced. In any event, the end result was that one or more blood vessels were pierced. [ 68 ] Dr. Halabi agreed that the fractures were at different stages of healing, indicating they occurred at different times. He stated that based on the stage of healing, the injuries to C.’s leg bones seemed to have happened at the same time.

He agreed that the left side of C.’s chest area was more injured than the right, but did not discuss the significance of that observation – for example, if it might be indicative of having been caused by a right-handed person. [ 69 ] Overall, Dr. Halabi said that he did not identify any significant discrepancies. Whether there were 26 or 34 rib fractures, the number is significant. He said if C. had been in his care, he would have made a similar report of suspected child abuse. [ 70 ] When Dr. Halabi interviewed the parents, he asked for a demonstration as to how they handled C.

He said it was important for him to see the type of manipulation and force used when removing C.’s gas or when Mr. L. did the sack of potatoes move. Like Dr. Jain, Dr. Halabi was also not familiar with Mr. L.’s manoeuvres for removing C.’s gas. [ 71 ] Dr. Halabi said that Mr. L’s. placement of his hands around C.’s torso and pushing his thumbs where he thought her stomach to be is a classic way to cause a rib fracture because this is where the bones are weakest. Dr. Halabi was told that Mr. L. was using this move several times each week from the time C. was 3 weeks until before her hospital admission at 8 weeks.

I note that in his evidence, Mr. L. said he was using the gas-relieving manoeuvres once or twice a day. [ 72 ] It was Dr. Halabi’s opinion that with the correct amount of pressure, the gas-removing maneuver could have caused the rib fractures. Dr. Halabi said that the maneuver being done many times over about 5 weeks would explain why the rib fractures were at different stages of healing. [ 73 ] Dr. Halabi was asked if C.’s other injuries could also have been caused by the gas-removing techniques the parents described.

He said it was possible that the cycling motion and pushing C.’s legs down into her abdomen could have caused the injuries to her leg bones if a significant amount of force was applied. Like Dr. Jain, Dr. Halabi noted that the fractures were not lineal and would have also required forceful twisting. [ 74 ] Dr. Halabi was asked if the sack of potatoes move could have caused some of C.’s injuries. He said that Mr. L. holding her by the arms and throwing her over his shoulders, with enough force, could have caused the injuries. [ 75 ] When asked about the amount of force that would cause the injuries Dr.

Halabi responded that he is not a bio-mechanical engineer and therefore does not have the expertise to answer the question. Dr. Halabi said although Mr. L. demonstrated the motion during their video interview, he might not have accurately replicated the amount of force he used. [ 76 ] Dr. Halabi was asked if it was possible that the parents were not aware that the force Mr. L. was using was too much. He responded that Ms. H. reported to him that she felt sad with C.’s facial expression during some of the moves, so it might have been that C. was showing pain. Dr.

Halabi said since C. was non-verbal and not ambulatory, it could be that the parents didn’t notice that she was in pain. He explained that C. may have been in internal distress, but not showing external signs. Like Dr. Jain, Dr. Halabi noted there are many ways that an infant can show signs of an injury, such as a change in their feeding habit.

[ 77 ] Dr. Halabi agreed with Dr. Jain that he did not believe that the dog jumping on C. could have caused the fractures to her arm and hand. He also ruled out the parents sleeping with her or any other information they provided as being probable causes. The Experts’ Conclusions [ 78 ] It was Dr. Jain’s opinion that C.’s injuries were non-accidental and the result of maltreatment.

Her opinion was based on the wide variety of injuries on a wide variety of bones, the types of fractures, the different stages of healing, the lack of any medical diagnosis, that there had been no significant accident and that there was no information from the parents that sufficiently explained the cause of the injuries. [ 79 ] Dr. Halabi’s conclusion is at page 16 of his report and he confirmed it in his oral testimony. In Dr. Halabi’s opinion, the parents provided an adequate explanation that Mr. L. inadvertently injured C. while trying to soothe her or relieve pain. Dr.

Halabi was also of the opinion that it is possible that the parents were not aware that C. was injured and in distress until shortly before they brought her to the doctor on February 4. He also did not find evidence of subterfuge or an unwillingness to cooperate. I note there was nothing in Dr. Jain’s report or her testimony to suggest otherwise. The Parents’ Explanation of the “Sack of Potatoes” [ 80 ] Ms. H. described Mr. L. hanging C. upside down, down his back. In cross-examination, Ms. H. described a swinging motion. She said she had reacted, saying “whoa, be careful” and then Mr. L. pulled C. back up.

Because C. wasn’t crying, Ms. H. didn’t think the move was harming her. Ms. H. said it was done to play with C. and not out of anger or out of frustration. She testified that she believes Mr. L. thought he was being gentle. Ms. H. said she now understands that was not an appropriate way to handle a baby of that age. [ 81 ] Mr. L. testified he was being playful, trying to get C. to laugh. He said he did it once or twice, then he and Ms. H. agreed it was probably not a good idea and he didn’t do it again. Mr.

L. acknowledged that it he realizes now that it was obviously not an appropriate way to handle C., given her extensive injuries. [ 82 ] It was put to Ms. H. on cross-examination that the “sack of potatoes” move was not disclosed to Dr. Jain and the social workers, but she insisted they did at the February 12 meeting. Ms. H. said she had a clear memory of telling Dr. Jain who was dismissive. The disclosure is not recorded in MCFD’s notes of the meeting found at Exhibit 1, pp 33-34 but is noted in a later phone call between Ms. H. and Team Leader Krapo on February 13, at pg. 36. [ 83 ] Dr.

Jain testified that she was never told about the sack of potatoes move, which is why she didn’t address it in her report. Whether she was told and overlooked considering the sack of potatoes move in her report or not, Dr. Jain was clear that her review of Dr. Halabi’s report and opinion which did address it, did not change her opinion. After the Removal [ 84 ] H.L. and Ms. J. were C.’s caregivers from February 17 until April 11, 2021, when she was moved to the home of H.L. and her spouse in South Surrey, where she remained. [ 85 ] H.L. and Ms. J. live in Langley and at the time, Ms. H. and Mr.

L. lived in New Westminster. Because the parents were initially only allowed visits between 10-2 and 6-8, they spent about 3 hours commuting daily. As Ms. H. testified, she has been with her daughter every day of her life. The parents never allowed the long commute to Langley and then to South Surrey to act as a barrier and they have been with C. every day. In the early days of her time in care, C. was still a newborn, so much of their time together was when she was either nursing or sleeping. [ 86 ] Ms. H. and Mr.

L. both testified about how concerned and cautious they were handling C. after her discharge from the hospital. They took the advice of Dr. McLaughlin at Children’s Hospital who said to handle her as if she is a paper crane. Ms. H. said when they learned how badly injured C. was, she and Mr. L. started over at square one to ensure she is handled appropriately and never injured again.

She said they were devastated that C. was injured in their care and that they didn’t realize it. [ 87 ] Throughout the time that C. has been in care, the parents have not been permitted any unsupervised time with her up until a slight relaxation by MCFD in late 2021 or early 2022 that allowed them to take her once per week to a sanctioned community event. They were not permitted to drive C. anywhere themselves, and could either drive with H.L. or her spouse or meet them when they dropped C. off at an event or appointment. As well, the parents’ time with C. was limited. Ms.

Pittman testified that this was because of the extent of C.’s injuries and Dr. Jain’s opinion that the injuries were non-accidental and had not been adequately explained by the parents. [ 88 ] Ms. H. described an extremely close bond between herself and C., despite their separation. Mr. L. testified to the same and this was reiterated by Mr. L.’s mother H.L. and Mr. L.’s sister C.L. and the three service providers, all of whom spent considerable time in the presence and C. and her parents.

The Support Services [ 89 ] Because of the parent’s move from New Westminster to Coquitlam and then back, they dealt with two MCFD offices. Family services worker Ms. Morgan testified about her involvement with the family from March until June 2021 and then from January 2022 to the date of her testimony. [ 90 ] The parents were directed by MCFD to attend a number of programs to build on their parenting skills and address any underlying issues that may have contributed to C.’s injuries. They were told that their progress would be measured through the feedback from the service providers. [ 91 ] Ms.

Morgan testified that the particular programs were chosen for the parents given the severity of C.’s injuries and because their explanations of what happened were not sufficient. She said it was important for MCFD to understand what led up to the injuries to

ensure that the parents could safely parent C. at some point. [ 92 ] The parents completed Project Parent and Growing Great Kids and took

part in numerous therapeutic access sessions, and individual and couples counselling. Although they did not report any problems with drugs or alcohol, they were referred to intake, complied and were not required to do any follow-up based on their self-disclosure. [ 93 ] The parents each testified in detail and in a positive light about what they learned in the programs and how they incorporated what they learned in their interactions with C. They both felt the programs were useful and helped them to become better parents. Project Parent [ 94 ] According to Ms. Morgan, in Project Parent, Ms. H. and Mr.

L. worked with counsellor Kristel Galvais, received parenting coaching sessions and intensive support services of about three hours/week. The program is intended to develop parenting skills and strategies. Ms. Morgan testified that the parents achieved the goals in six months. [ 95 ] Ms. Galvais was the facilitator. She testified that Project Parent is intended to help parents become child development specialists for their own children. She visited the parents and C. at the caregiver’s home every Thursday. Ms. Galvais had 21 weekly sessions between April and November 2021.

She said the parents met all the goals of the program. She observed the parents attend to all of C.’s needs, and described them as supportive of each other, loving, patient, fully engaged and receptive to her advice. She did not have any concerns. She said MCFD ended the program after being satisfied that the parents had met all the goals over the months they spent with her. Growing Great Kids [ 96 ] Growing Great Kids involved weekly video sessions between April and December 2021, in which the program coordinator, Melissa Schmalz worked remotely with the parents and C. at the caregivers’ home. Ms.

Schmalz described Growing Great Kids as a psycho-educational program which included couples sessions. She said she was the video “eye in the sky”, working alongside Ms. Galvais who was physically present in the home. [ 97 ] Ms. Schmalz’s report for the period April 13 - July 28, 2021, was entered as Exhibit 2. She said the parents had perfect attendance, were very involved, asked lots of questions, understood the content and showed a high level of commitment. She spent a total of 39 hours with them, including about 20 therapeutic visits. [ 98 ] Ms.

Schmalz described the parents as high-functioning, active and enthusiastic and who were very responsive to C.’s needs. She did not observe anything about their parenting that caused her concern. She observed a close bond between C. and her parents and them with her. Ms. Schmalz said that in her experience, attachment demonstrates a true relationship, it’s not a performance that can be faked. [ 99 ] Ms. Schmalz said that after the parents had met the goals of Growing Great Kids, she offered and they accepted doing the Circle of Security program which she also facilitated.

Circle of Security helps parents identify their child’s needs and respond appropriately. She said it’s a useful tool to understand and secure quality attachment. Ms. Schmalz could not identify any other programs that would assist the parents, given the programming they had successfully completed. Therapeutic Supervised Access [ 100 ] Ms. Morgan explained that therapeutic supervised access is a form of supervised access with the added element of coaching and correction as needed.

Because of Covid, the sessions were done virtually with the worker observing the parents interacting with C. [ 101 ] Allison Blair testified about her work as the therapeutic access supervisor with the parents and C. Ms. Blair began services with the family on November 4, 2021. Her reports detailing the sessions from November 2021 to March 2022 were entered as Tabs 4-8 of Exhibit 3. Ms. Blair explained that her role was to observe the parents and C. and provide support and work towards goals to address the child protection concerns.

She said the goals were identified by MCFD and to date, the parents had met the goals. Ms. Blair said that the initial referral was for six months at which point MCFD would assess and decide if the parents ought to continue with her. [ 102 ] Ms. Blair had weekly four-hour sessions with the parents and C. at the caregivers’ home. There were also in-person sessions at the West Coast Family Services office. [ 103 ] The parents would alternate with one being present on their own for the first three hours with the other parent joining for the last hour. Ms.

Blair said this was so she could observe each parent’s interaction with C. on their own and together. She also worked with the parents in couple’s sessions to identify and discuss goals, talk about C.’s development and how to best support her. Ms. Blair said the parents were open to her advice and she observed them incorporate what they had learned into their interactions with C. Both parents also testified about their work with Ms. Blair and what they learned. [ 104 ] Ms. Blair testified about Ms. H. and Mr. L.’s many parenting strengths that she observed over the 60 hours documented and detailed in the reports.

She discussed the close bond she witnessed between C. and her parents and the ways in which they attended to all her needs appropriately. Ms. Blair did not have any concerns regarding Ms. H. and Mr. L. and their interactions with C. which she described as extremely positive. Counselling [ 105 ] Counselling was through the Elizabeth Fry Society and SHARE. The goal was to help the parents deal with issues such as emotional regulation, coping skills and trauma. Ms.

Morgan testified that because MCFD believed that the parents had not been completely forthcoming in what happened to C., it was hoped that counselling might lead to acknowledgment about what really happened.

[ 106 ] Ms. Morgan was cross-examined as to what she meant in her direct evidence regarding emotional de-regulation by Ms. H. She defined it as not being able to maintain composure and made reference to a particular meeting when Ms. H. became upset. [ 107 ] All the evidence that I heard about Ms. H. and her conduct indicated that she was for the most

part calm, cooperative and doing her best when engaging with MCFD and all the care providers. It seems to me not unexpected that at some point Ms. H would have an outburst or an expression of frustration, given that her infant was in Ministry’s care. From all the evidence, it appears that what caused Ms. Morgan’s concern was an isolated incident and not an on-going impediment to Ms. H.’s engagement with MCFD. Ms. Morgan agreed on cross-examination that there were no reports of any concerning behaviour by either parent.

The Parents’ Access with C. [ 108 ] As time passed and the parents complied with all the Director’s expectations, all with consistently positive feedback, they continued to ask for more time with C., and what more was required of them to have her returned. Overnights were always denied and Ms. H. said they eventually gave up asking. They also asked for longer blocks of time, including continuous blocks to reduce the amount of time they were driving to and from visits and to maximize time with C. All the visits took place at H.L.’s home or if outside her home, under her and/or her spouse’s supervision.

H.L. said she and her spouse were fully in support of C. having more time with Ms. H and Mr. L and expressed this to Ms. Morgan. [ 109 ] Ms. H. testified that in October 2021 they took

part in a mediation. The parents asked for time with C. from 8:00 am to 8:00 pm daily which was denied. Then they asked for the same time on weekends, which was also denied. Ms. H. said Ms. Morgan said the time they had with C. was sufficient. [ 110 ] The Director did allow the parents one additional hour to take advantage of the time C. was awake, and so visits were authorized for 8:00-10:00 am, 12:00 until 2:00 pm and 4:00 pm until 8:00 pm. Ms. H.’s parents were living about ten minutes away from H.L. so Ms.

H. would go there between her blocks of parenting time with C. [ 111 ] For reasons that are unclear, MCFD changed its position on alternate supervisors to allow H.L. and her spouse some respite. This included H.L. and Ms. J., Ms. H.’s parents and C.L. This lasted from August until December 2021 when C.L. was finally reinstated as a supervisor. [ 112 ] There was a second mediation in January 2022. Access was changed such that on Thursdays the parents were allowed one continuous block of time with C. from 10:00 am to 8:00 pm.

Not long before the hearing, C.’s weekend time with her parents increased to noon until 8:00 pm and then from 8:00 am to 8:00 pm. [ 113 ] C. began daycare in early 2022 to give her caregivers some respite. Ms. H. said as many mornings as possible, she would drive to South Surrey to spend time with C. before daycare and then return to the caregiver’s home after daycare, and stay until 8:00 pm. When Ms. H. returned to work, she was able to work from home and would do that from her parent’s home while C. was at daycare. Mr. L. was spending time with C. daily after work and on Thursdays when he was off.

The sessions with Allison Blair were scheduled to coincide with Mr. L.’s Thursday off. [ 114 ] Over the 15 months that C. was in care, there were two unannounced visits by social workers to check on her. Once was on Ms. H.’s birthday on August 8, 2021. The parents had asked for an all-day visit from 8:00 am until 8:00 pm, which was denied. An after- hours worker showed up to make sure that the access

schedule was being followed, which it was, and that the parents were leaving C. at 2:00 pm as required, which they were. All the evidence confirmed that the parents and the caregivers have complied absolutely with MCFD’s requirements regarding access. [ 115 ] Ms. H. and Mr. L. attend to all of C.’s needs when they are with her at the caregivers’ home. This includes purchasing, preparing and serving her meals, playtime, reading, bath and bedtime routine. Ms. H. has attended every one of C.’s medical appointments while she’s been in care. The Director’s Expectations and Position [ 116 ] Ms.

Morgan confirmed that the parents have followed through, actively participated and successfully completed everything they were directed to do by the Director. They have complied with everything asked of them. She also confirmed that the feedback from all the service providers has been consistently positive with not one concern expressed about the parents. Ms. Morgan said that there are currently no programs or service goals outstanding or identified. [ 117 ] Ms. Morgan also confirmed that the parents have been actively engaged in C.’s care since the time of her removal. They have followed all professional advice.

She agreed that based on the feedback from the service providers, the parents are applying what they have learned to care for C. Ms. Morgan also agreed that the parents have demonstrated over the past year that they can safely parent C., but added their parenting has been under constant supervision, never on their own. [ 118 ] Ms. Morgan was asked what the parents can do to address the Director’s concerns and get C. back in their care. She said the bottom line is that to proceed with C.’s return home, the Director must know what happened that aligns with her injuries.

She said it is only when the Director knows the full extent of what happened that the risk can be properly addressed. Ms. Morgan said what needs to be figured out is why such a significant amount of force was used to relieve gas in an infant. She questioned whether the parents have the ability to recognize if C. is injured in the future, given the life-threatening condition she was in when brought to the hospital. [ 119 ] Ms.

Morgan said that while the parents have shown that they can safely care for C. under supervision and have complied with everything they have been directed to do without one slip, the Director is not prepared to move forward with unsupervised access leading to a return because they do still not know what actually happened. Ms. Morgan was asked if that question remains unanswered, does it mean the Director is not prepared to return C., ever. She confirmed that to be the Director’s position. [ 120 ] Ms.

Morgan added that the police investigation is ongoing and that it is her understanding that if charged, the parents could be

facing charges for aggravated assault. She suggested that the reason the parents haven’t been completely honest is to protect themselves in the event they are charged. Ms. Morgan was asked if the Director was prepared to return C. if no charges are laid and the police file closed and she said she couldn’t answer that. [ 121 ] Ms. H. was asked what life would look like when C. is allowed to return home. She said that she and Mr. L. worked hard to show everyone in the last 14-15 months that they are the same people behind closed doors as they are when under supervision.

She said C. would stay in daycare, although maybe not full-time. C. might spend a day each week with her grandparents to maintain that connection. [ 122 ] There would be camping and hiking and community activities. Ms. H. said she and Mr. L. would continue to provide C. with a rich environment with healthy food, love, safe playtime, reading, security and respect. She said they have learned since C.’s removal to be extremely vigilant and if they were uncertain about anything, they would reach out to their family, friends or the medical profession for help. Ms.

H. looked forward to including C. in their circle of friends with children of similar age and continuing to spend time with both sides of their family. [ 123 ] Ms. H. remained firm in her belief that Mr. L. did not harm C. She also did not believe that Mr. L. would have harmed C. and kept it a secret from her. She said that if she thought Mr. L. was harming C. she would remove her and contact MCFD. But she also believed this would never happen because that’s not how her husband is. Mr. L. confirmed the same of Ms. H., describing her as a loving, caring and honest person. He said he was certain Ms.

H. had not harmed C. Submissions, the Law and Analysis [ 124 ] Director’s counsel was asked for confirmation of what the Director’s plan and expectations of the parents were, in the event the temporary custody order was granted. Ms. Nowland said that C. would continue to attend daycare, the parents would continue with support services recommended by the Director and counselling, with the expectation that there be ongoing positive feedback. There would continue to be supervised access, again with the expectation that there continue to be positive feedback.

In other words, everything that the Director has expected of the parents since February 2021, and which the parents have done – consistently, thoroughly and with uniformly positive feedback from everyone they have engaged with. The Finding – is C. in Need of Protection? [ 125 ] Under CFCSA s. 40(1), the first step at a protection hearing is to determine if C. needs protection.

The Director submits that C. needs protection under s. 13(1)(a), that she has been or is likely to be physically harmed by her parents. [ 126 ] The Director must prove the past event on a balance of probabilities, but the same test does not apply in relation to future events. What must be established, also on a balance of probabilities, is a risk of future harm. There is abundant case law in this regard and both the Director and parents provided helpful Books of Authorities. [ 127 ] On behalf of the parents, Ms.

Huang argues that there is objective evidence that C. is not at risk of harm if she is returned to her parents and that there is no basis for a supervision order. She argues that C. has at no stage been in need of protection, even at the time of removal. She says there were other less intrusive measures such as the proposed safety plan that would have adequately protected C. and that the removal was not justified. [ 128 ] M.G. v.

Director of Family and Child Services , 2007 BCSC 461 , provides an overview of British Columbia case law that addresses unexplained injuries and the requisite standard of proof, as well as the required focus at a protection hearing. [ 129 ] At para. 97, Madam Justice Russell references the 1989 Court of Appeal decision of British Columbia (Superintendent of Family and Child Service) v. G.(C.) . There the Court of Appeal concluded that the hearing judge misdirected himself when he tried to determine the guilt of one or the other parent in having caused injuries to their twins.

The Court said at page 7 of 8 that is not the nature of the inquiry at a protection hearing: …rather the hearing judge was to consider the evidence led on the hearing and decide on the basis of that evidence having regard to the safety and well-being of these children if they should remain in the custody of their parents or whether they should be temporarily placed in the custody of the Superintendent. [ 130 ] Judge R.R. Smith’s decision of British Columbia (Director of Family and Child Services) v. R. (M.), 2000 BCPC 130 , similarly provides a

summary of decisions involving unexplained injuries. [ 131 ] It is trite to say that each case must be decided on its facts. Here, we have C., who as a two-month-old came into the hospital with between 32 and 42 fractures that had among other things, caused a chest hematoma that severely compromised her ability to breathe. [ 132 ] Ms. Huang argues that C.’s injuries are not unexplained, except to her hand and ulna. She says while not minimizing the hand and ulna fractures, the most serious injuries were explained by the parents. Ms. Huang says Dr.

Halabi’s opinion that the mechanisms described by the parents could have caused those injuries ought to be accepted. I note that Dr. Halabi’s opinion was not challenged on cross-examination. [ 133 ] Ms. Huang noted that since C.’s removal, she has suffered no further injuries. She submits that this shows the parents have learned from their mistakes and why there is no risk to C. if returned.

With respect, this overlooks that since her discharge from the hospital C. has been under the care of Ministry-approved caregivers or with her parents, but under constant supervision and never overnight. [ 134 ] I agree with Ms. Huang, that like the parents in British Columbia (Director of Child, Family and Community Service) v. S.C. , 2019 BCPC 249 , Ms. H. and Mr. L. were largely credible, although there may have been some minimizing of the force used during the moves, especially the sack of potatoes. They were good historians and gave their evidence in a reliable fashion.

They gave their evidence without being defensive or argumentative. There was also no evidence that they were ever defensive or argumentative with anyone since

C. was admitted to hospital. They accepted that C. was seriously injured while in their care from their first meeting in hospital up untilthey gave evidence at the hearing. They admitted they were at fault and did not try to cast blame on anyone else. Their evidenceremained consistent both on direct and cross-examination and was also largely consistent with the other witnesses. [135] I do not find that either Ms. H. or Mr. L. intentionally harmed C. What I take of particular importance from Dr. Halabi’s report aswell as Dr.

Jain’s evidence is the significant level of force that needed to be exerted to cause C.’s injuries, all with an aim to relieve gas orbe playful. I accept that Mr. L. caused the injuries by repeatedly applying the moves, which Ms. H. witnessed and allowed to happen.Neither of them had the common sense to realize that too much force was being used. I agree with Dr. Jain that it ought to have beenapparent to anyone, even a child, that C. was being handled improperly. It was shocking to hear about the “sack of potatoes” move andthat the parents would think that was a playful, appropriate way to handle an infant.

Based on what both experts said, for the move tohave caused the injuries to C.’s legs, it was done forcefully and anything but gently. [136] The evidence demonstrates an extreme lack of judgment by two mature adults who are well-educated, took steps to learn aboutinfant care before and after C.’s birth, have a strong family and social circle and no substance use issues. I also do not discount that someof C.’s injuries remain unexplained.

Although the parents emphasized how diligent they were looking after C.’s needs, I find this was notexactly the case, given the number of people they invited into their home to visit their newborn, despite the state of the Covid pandemicin early 2021. [137] Madam Justice Russell noted at para. 99 of M.G. that: …in order to show that a child is in need of protection, the Director must demonstrate that there is “a real possibility” that the child maysuffer harm. Additionally, the assessment of that risk may vary, depending on the nature of the threatened harm.

Here where the expertswere unanimous that “substantial force” was required to cause the child’s injuries, and where the trial judge specifically found that thephysical abuse was so serious that there was a possibility that Baby M.G. “may not survive another serious physical attack” (at para. 18),any risk that another attack might be permitted to occur is unacceptable. [138] The Court of Appeal in B.S. v British Columbia (Director of Child, Family and Community Services), (BCCA), noted at para. 19 that a child may be in need of protection even if the precise circumstances described in any of s. 13(1)’senumerated paragraphs have not been proven to the requisite standard.

The Court of Appeal reached this conclusion by also taking intoaccount

section 2 of the Act which provides that children are entitled to be protected from abuse, neglect and harm or threat of harm. TheCourt of Appeal described this as a clear statement of a legal right and continued: …in any case where the operation of s. 13(1) did not have the effect of establishing the need for protection because of difficulty inidentifying the perpetrator or potential perpetrator of the abuse, neglect, harm or threat of harm, or for any other reason (emphasisadded), the paramount right created by positive law in s.2 will assure that the child is protected. B.S.v. British Columbia. [139] Moreover,

section 2 begins by stating that the Act must be interpreted and administered so that the safety and well-being ofchildren are the paramount considerations. [140] In my view, C. was at the time of removal a child in need of protection and she continues to be. Ms. Pittman explained that thebasis for the removal was that her Team Leader made the determination that something more than a safety plan was required toadequately protect C.

Thankfully for C., the outcome did not look any different for her and she was placed with family as she would havebeen under a safety plan. [141] In my view, the Director had reasonable grounds to ultimately reject the proposed safety plan and remove C., given theseriousness of her injuries and what the Director knew at the time about their cause and because there would have been no way to knowthen what C.’s prognosis would be and if her needs could be met under a safety plan.

The removal and triggering of court processesprovided C. with a level of protective oversight that under all the circumstances was necessary and that she was entitled to as a child whohad been significantly injured while in her parents’ care. [142] Turning to future risk, my assessment takes into account the substantial force that had to have been used on C., the serious injuriesit caused and the parents’ significant lack of good judgment in that regard during her first two months of life.

Although the parents haveworked hard to show that they have learned from their past mistakes and that they are committed to handling C. like a paper crane, thereality is that she has not been in their full-time and unsupervised care for well over one year. I must weigh in favour of C.’s safety andwell-being as a paramount consideration and accordingly, I find that the Director has established a risk of future harm. What Order Should Be Made Under s. 41? [143] The Director’s plan of care is essentially what has been in place since C.’s removal. According to Ms.

Morgan, the Director doesnot intend to return C. until her parents admit what really happened. This places the parents in an impossible position, somewhat like aperson who says they are wrongfully convicted and is denied parole unless they admit to something they did not do. [144] I accept the parents’ evidence and Dr. Halabi’s expert opinion. I prefer Dr. Jain’s language that this is a case of childmaltreatment, not abuse. The injuries were not caused out of anger or frustration or as a result of impairment by drugs or alcohol.

Even ifI am wrong and the parents are concealing something, as the case law makes clear, I am not the arbiter of their guilt or innocence. Myfocus is whether it is now best for C. to be returned to her parents or not, having regard to her safety and well-being. [145] The evidence I heard and which I have summarized in this decision demonstrates that the parents have taken significant correctiveaction and learned from their mistakes. The parents have shown their unfailing love for and commitment to C. through their determinedefforts since her removal.

It is evident that C. has a strong bond with her parents, she is thriving and thankfully healthy and happy. Theparents met and exceeded all the Director’s expectations to ensure that what happened to C. never happens again. There is nothingoutstanding and there are no other programs that the Director has identified for the parents to do, except to continue doing what theyhave been doing. There is nothing in the Director’s plan that in my view supports that it is best for C. to remain in the Director’s care fora further three months.

[ 146 ] I am satisfied that in accordance with s. 41(1)(

b) it is in C.’s best interests to be returned to her parents care, under the on-going supervision of the Director for six months. The terms were those set out in my

summary decision on May 31, 2022. _____________________________ The Honourable Judge A. Brown Provincial Court of British Columbia