DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2022 BCPC 303

Citation: British Columbia (Child, Family and Community Service) v. K.E. 2022 BCPC 303 Date: 20221129 File No: F-23943 Registry: Victoria 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 CHILDREN: E.E., born [omitted for publication] and A.E. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: K.E. and E.Z. PARENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE BARRETT Counsel for the Director: P. Nijjar Counsel for the mother K.E.: C. Churcher Counsel for the father E.Z.: T.J.

Senko Place of Hearing: Victoria , B.C. Date of Hearing: November 23, 2022 Date of Judgment: November 29, 2022

INTRODUCTION: [ 1 ] On August 30, 2022, the children, E.E., born [omitted for publication] and A.E., born [omitted for publication] were removed from their parents’ care. [ 2 ] The children’s parents, K.E. and E.Z., had taken their younger child, E.E., to the hospital on August 27, 2022 after observing blood in the child’s mouth and saliva, when putting her to bed that night. [ 3 ] The emergency physician at the hospital called the Ministry of Children and Family Development (“MCFD” or the “Ministry”) to report that E.E. suffered an injury to her tonsil and mouth that was very concerning for non-accidental injury.

Further details of what was reported and E.E.’s injury is set out below in these reasons. [ 4 ] The Ministry’s social worker, Ashley Bauer, attended the hospital the next day in response to this call of concern. After speaking with various hospital staff, Ms. Bauer asked the parents to arrange for their older child, A.E., to be brought to the hospital. A.E., too, was admitted into hospital.

The parties entered into a Safety Plan that required both children and the parents to remain together at the hospital while the Ministry began its investigation into the child protection report. [ 5 ] When it came time for the children to be discharged, the Director removed the children.

The Director was concerned for the children’s physical safety given E.E.’s unexplained injury, the vulnerability of both children given their young ages, and the Director determined there were no adequate less intrusive measures available. [ 6 ] On September 2, 2022, the matter came before the Honourable Judge Sacca for a Presentation Hearing. Judge Sacca ordered the return of the children, under supervision, pursuant to s. 35(2)(b). The Director appealed that decision and, pending determination of that appeal, retained care of the children.

At the appeal, an order was made that the matter return to the Provincial Court for a Presentation Hearing. [ 7 ] The Director seeks an interim custody order pursuant to s. 35(2)(a). Ms. K.E. seeks an immediate return of the children without any intervention; from her point of view, the Director’s removal of both children was not justified. Mr. E.Z. seeks a return of the children as well and proposes conditions for an interim supervision order if a return is ordered and the Court deems supervision is necessary. Ms.

K.E. agrees with the proposed supervision terms if supervision is ordered by the Court. [ 8 ] At the Presentation Hearing before me on November 25, 2022, I heard evidence from the removing social worker, Heather Watt, and received a Book of Documents from the Director that has been marked as Exhibit #1. Additional documents were also received, all of which were marked as exhibits in the proceeding. [ 9 ] Given the lateness of the day, and the need for me to review the documentation filed, I reserved my decision after the hearing.

All parties agree there is urgency in a decision being made for the children as they have been in care for some months now and the children’s current foster parent is not able to continue to care for the children after the end of this month. Therefore, if the children are to remain in the Director’s interim custody, a new foster placement will be required. ISSUES: [ 10 ] The issues I must determine at this hearing are as follows: 1. Is there evidence to justify the Director’s removal of both children on August 30, 2022? 2. If so, what interim order should be made under s. 35 of the Act ?

LAW: [ 11 ] In this case, the Director removed both children under s. 30 of the Child, Family and Community Service Act (“ CFCSA ”). [ 12 ]

Section 30 states: 30

(1) A director may, without a court order, remove a child if the director has reasonable grounds to believe that the child needs protection and that (

a) the child's health or safety is in immediate danger, or (

b) no other less disruptive measure that is available is adequate to protect the child. [ 13 ] When considering the Director’s reasons for believing the children needed protection when removed, the circumstances set out in s. 13 of the Act should be considered, in particular (but not limited to), s. 13(a) “the child has been, or is likely to be, physically harmed by the child’s parent”, which is the identified concern of the Director.

As well, however, the Court must consider s. 2 which outlines the guiding principles of the legislation and identifies the paramount considerations to be the “safety and well-being” of children. [ 14 ] Under s. 33.3 of the Act , a Presentation Hearing is a “summary hearing and must be concluded as soon as possible.” It is not intended to be a comprehensive hearing about the Director’s removal of a child or what order should be made upon conclusion of that hearing.

A more comprehensive hearing occurs at the Protection Hearing stage of a proceeding. [ 15 ] A Presentation Hearing is intended to be a hearing that ensures the removal of a child is not arbitrary and that an order is made to ensure the appropriate care for a child pending a more substantive hearing. At a Presentation Hearing, the Court is not required to assess credibility of the evidence or actually find that a child needs protection.

Any conflicts in the evidence are resolved in favour of the Director at this stage of the proceeding unless that evidence can be shown to be “manifestly wrong, untrue or unlikely to have occurred.” ( BB v. British Columbia (Director of Child, Family and Community Services ), 2005 BCCA 46 ).

[16] The burden on the Director is merely to provide “admissible evidence which, if accepted, could lead to a finding that the child isin need of protection” (R(

B) v. K(K), 2015 BCSC 1658 (BCSC), para. 16). [17] The nature and purpose of a Presentation Hearing are well set out by the Honourable Judge Lee in his decision, British Columbia(Director of Child, Family and Community Service) v. SG, 2019 BCPC 258 , wherein he states, in paras. 27 to 31: [27] A presentation hearing has been compared to a preliminary inquiry in Criminal Code proceedings: see R.G. v. A.P., [2001] B.C.J.No. 466 (B.C. Prov. Ct.) at para. 4 and T. (K.M.) v T. (J.D.) (1999), Fam. L.D. 80.

In a preliminary inquiry, a judge must commit theaccused to stand trial “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”: UnitedStates of America v. Shephard, (SCC), [1977] 2 S.C.R. 1067, at p. 1080. In the context of a child protection proceeding,the question is whether there is admissible evidence that could, if believed, result in a finding that the children need protection: B.R. v.K.K., 2015 BCSC 1658 at para. 16. [28] In the decision British Columbia (Director of Child, Family and Community Services) v.

A. (S.), (BC SC), thecourt stated: [9] A presentation hearing is a

summary proceeding (S. 35(4)). It is ordinarily conducted on the basis of the written report of a socialworker, the required contents of which are outlined in S. 35(1) of the Act. The Hearing results in a temporary order, the point of which is"to secure the best interests of the child, pending a comprehensive hearing into the question of whether or not the child is in need ofprotection" (see: Thompson v. Superintendent of Family and Child Services [1994] B.C.J. No. 759 (March 29, 1994) Vancouver RegistryNo.

CC940161 (B.C.S.C.) per Wilson, J. at p. 7). [10] The jurisdiction of the Provincial Court has been described in Re: Engel (18 December 1981) Vancouver Registry No. A812240(B.C.S.C.) per Trainor, J. at p. 6 (addressing an earlier version of the statute): The jurisdiction of the Provincial Court, at what I shall call the initial hearing where the Superintendent has retained custody of a childand when a written report has been presented, does not involve a decision whether the child is in need of protection.

The questions beforethe Provincial Court on that initial hearing relate to whether the Superintendent should retain custody until the protection hearing orshould the child be returned to its parents. If interim custody is to be retained by the Superintendent, the Court may consider access to thechild by its parents.

If the child is returned to the parents during the interim period, the Court may direct supervision of the child by theSuperintendent until the protection hearing. . . . [12] I think it well established that on such a hearing, if the circumstances suggest a risk of harm to the child, the test is "much lower"than a balance of probabilities (See: Superintendent of Family and Child Service v. G.(

C) and S.G. (1989) (BC CA),22 R.F.L. (3d) 1 C. 9 (B.C.S.C.)). Put in positive terms, I think that where any appreciable risk of harm is established, the court mustmake an order under sections 35(2) and (3) that effectively addresses that risk. [13] The Provincial Court must, however, exercise its discretion on the evidence before it, not simply on the manner in which the risk ischaracterized. [29] The purpose of a presentation hearing differs from that of a protection hearing.

It is at the protection hearing where the court willresolve any conflicts in evidence and determine if the children are in need of protection. The court does not weigh the evidence at apresentation hearing. In other words, I am not deciding if there is sufficient evidence but only whether there is some evidence that thechildren need protection. [30] If I decide at the presentation hearing there is no evidence that the children need protection, then I must order pursuant to s. 35(2)(c)that the children be returned or remain with their parents.

This would then conclude the proceedings. [31] If I decide at the presentation hearing that there is some evidence that the children need protection, then I must make one of threeinterim orders set out at s. 35(2)(a), (

b) or (d). Put another way, I must decide what interim protection is to be place until the protectionhearing is completed. The protection hearing is then scheduled pursuant to s. 37. [18] The concept of “reasonable grounds to believe” was reviewed by the Honourable Judge Doulis in her decision, BC (Child,Family and Community Service) v. SB and DMB, 2022 BCPC 140 . In para. 165 of her decision she states: [165] Section 30(1) permits the Director to take a child into its care, if the Director has “reasonable grounds to believe” that the childneeds protection.

The test for establishing reasonable grounds is not onerous. The Supreme Court of Canada in Mugesera v. Canada(Minister of Citizenship and Immigration 2005 SCC 40 held that “reasonable grounds to believe” is a higher standard than “reasonablesuspicion”, but lower than the civil standard of proof on a balance of probabilities.

The court held that reasonable grounds would existwhere there is an objective basis for the belief that is based on compelling and credible information. [19] She goes on, in para. 166, to describe how a court should consider and assess the nature of the evidence underpinning theDirector’s grounds to remove a child: [166] In my view, an objective assessment of the evidence underpinning the Director’s reasonable grounds to believe does not mean theevidence must be unassailable or the Children were in fact in need of protection.

The Director’s evidence can include hearsay, but it mustbe sufficiently trustworthy to qualify as evidence. Double and triple hearsay or unidentified hearsay is information best characterised asrumour. It is not admissible evidence: British Columbia (Child, Family and Community Service) v. S.S., 2020 BCPC 233 , citingDirector v. K.S., 2020 BCPC 97 at paragraphs 10-13; British Columbia (Director of Child, Family and Community Services) v. A.B.,2019 BCPC 35 .

REVIEW OF THE EVIDENCE: [ 20 ] In this case, the Director relies on the testimony of social worker, Heather Watt, as well as the Director’s Book of Documents filed as Exhibit #1. Within that exhibit, at Tab #2, is the Form A - Report to Court filed on August 31, 2022. [ 21 ] Ms.

Watt stated, in the Report to Court filed, that the Director decided to remove both children on August 30, 2022 “with the following considerations: the information from the ENT physician suggesting that E.E. was presenting with a concerning non-accidental injury with no explanation as to how the injury occurred; the age and vulnerability of the children; and the inability to create safety for the children upon their discharge from hospital.” Ms. Watt testified to the same effect at the hearing. [ 22 ] The original report to the Ministry came from an identified source: the emergency physician, Dr. Stefani. Dr.

Stefani reported that five month old E.E. had been taken to hospital by her parents on August 27, 2022 with concerns that she was bleeding around her mouth and spitting up blood. [ 23 ] The Ministry’s record of what was reported is found with Tab C, page 159, Exhibit #1 and also referenced within the Report to Court filed (and also found at Tab B, Exhibit #1). In part that report included the following information: While in the emergency department, E.E. was gurgling blood. She was examined by Ear, Nose and Throat (ENT) physician, Dr.

Joel Howlett, who found that E.E.’s tonsil on the right side was evulsed (torn) from the tonsillar pillar and there was petechiae and bruising on the tonsil on the left side and back of throat. The ENT physician reported that for this type of injury, a significant amount of force would have been used, and this was not a typical injury that is presented in a five-month-old child. He indicated that this type of pattern of injury was very concerning for non-accidental injury.

It was also reported that approximately two months prior, the parents brought E.E. into hospital for bruising on her torso, but no medical cause for the bruising was identified. [ 24 ] At the same time, it was also reported that “Her parents reported no history of trauma, and no forced feeding. They said that the only items that have gone into E.E.’s mouth are her bottle and soother” (Tab C, page 159, Tab B, Exhibit #1). [ 25 ] Social worker Ashley Bauer was the initial investigating social worker.

She met with the parties and wrote up a Safety Plan whereby the parties and both children would stay at the hospital together and not leave without Ministry approval. As well, no other family or friends would have unsupervised time with the children and both parties were required to be with both children at all times unless they needed to go to the bathroom. To give effect to this safety plan, the parties were asked to bring their older child, A.E., to the hospital.

To stay in hospital, A.E. needed to be admitted and the Ministry asked that a full examination of A.E. be done in the circumstances. [ 26 ] Social Worker Bauer also reported the incident to Saanich Police who initiated a police investigation. That investigation remained ongoing at the time of the children’s removal and, I understand, continues to be ongoing. [ 27 ] Social worker Watt took over conduct of the investigation on August 29, 2022.

She understood police were leading the investigation and therefore, would be conducting interviews of those within the home, as well as the parties, as part of their investigation into the injury. [ 28 ] She acknowledged, however, that she did continue to try to speak with the parties about the children, about what happened, and inquired as to whether the parties would consent to E.E. being seen by another ENT specialist to get a second opinion and for both children to be assessed by the Vancouver Island Suspected Child Abuse and Neglect Program (“VI SCAN”). [ 29 ] The parties had reported that they were the only ones with E.E. when the injury was discovered, and that A.E. had never been alone with E.E.

There is some suggestion that Ms. K.E.’s mother was also involved in a caregiver capacity for the children when the parties were working, but the parties’ appear to have indicated to the Ministry social workers that they were the ones caring for E.E. when the injury may have occurred. [ 30 ] At some point during this period of time, a referral had been made to, and accepted by, VI SCAN for an assessment of both children but that assessment has never been done.

The Director wants to have that assessment completed and that, in essence, is the reason for their request to have the children remain in their interim custody. The parties do not consent to having the children assessed by VI SCAN. [ 31 ] Ms. Watt testified to various conversations she had had with Dr. Howlett, the ENT doctor who treated E.E., as well as other hospital staff involved with both children. Some meetings occurred in the presence of the parties and some meetings occurred in their absence and without their involvement. [ 32 ] Based on Ms.

Watt’s evidence, the consistent message that both she and Ashley Bauer received from the medical doctors involved with E.E. was they had never seen an injury like this in a child E.E.’s age, it is not a typical injury for a child this young, E.E. herself could not have caused the injury, that it would have taken some force to cause the injury, and that, in their view, it was unexplained by the parties and was concerning for non-accidental injury. [ 33 ] I agree, as counsel have pointed out, that the descriptors used from time to time to describe the amount of force needed to cause E.E.’s injury varied.

For instance, Dr. Stefani’s report stated when he made his report to the Ministry that “it would take a significant amount of force to evulse a tonsil” whereas Dr. Howlett reportedly told Social Worker Bauer on August 28 that “it would take a fair amount of force for something like this to happen.” In that same conversation, however, Dr.

Howlett reportedly stated that the injury was considered “significant” and “would require force to cause this.” [ 34 ] Regardless of the descriptors used, however, the consistent medical opinion remained as set out above, that the injury was unexplained and concerning for non-accidental injury. [ 35 ] In the initial report, the Ministry also received information that E.E. had previously been to hospital in June 2022, because of

concerns for bruising on her torso. It appears, however, that at the time of the children’s removal, Ms. Watt had received additional information concerning E.E. that reduced the Director’s level of concern relating to this medical history. I take this from her note entry dated August 29, 2022, wherein Ms. Watt states: “. . . SW Watt collected more comprehensive and clear information that has decreased concern around historical medical events (i.e., Saanich Peninsula Hospital visit on 2022Jun16).” The primary concern of the Director remained E.E.’s injury. This is apparent from the same entry of Ms.

Watt’s wherein she states: “Concern regarding unexplained, significant injuries to E.E.’s tonsil and palate remain high and unexplained at this time” (Tab C, page 165, Exhibit #1). [ 36 ] E.E. underwent a number of medical tests to further investigate potential causes for her injury or the presence of any other concerns. Although the results of all testing was not yet completed at the time of her removal (e.g. skeletal survey results not yet received), the results received did not raise any concerns.

A.E., too, underwent a full physical exam and no concerns were noted; for that reason, the doctor examining A.E. declined to do a full work up on her. [ 37 ] Ms. Watt also had information about hospital staff’s observations of the parties’ care of, and interaction with the children while in hospital. Without exception, all observations were positive and no concerns were noted.

There was no concern with the parties’ compliance with the Safety Plan, their cooperation with medical staff caring for the two children, or with the Director before removal. [ 38 ] On August 30, 2022, the hospital intended to discharge A.E. and the parties wanted to take her home with them. E.E. had to undergo an MRI, but it was expected she would be discharged after that test had been completed. Ms. Watt informed the parties that the Director would not allow them to take the children home with them at that time.

The Director was aware that the parties and the children lived in a multigenerational home that included several family members including the maternal grandparents and aunts and uncles. All of these family members were living in the home at the time of E.E.’s injury and therefore, the Ministry did not consider those individuals as being viable options for caring for the children. [ 39 ] Ms.

Watt asked the parties if they could identify any friends or family outside of the family home that could care for the children but they were not able to identify anyone. [ 40 ] With that information, the Director decided that the removal of the children was warranted. The Director’s grounds to remove included the following: 1. The type of injury suffered by E.E. that was unexplained and, based on the medical opinion received to date, concerning for non-accidental injury. 2. The vulnerable ages of both E.E. and A.E. 3.

The absence of any immediately available less intrusive measures adequate to protect the children. [ 41 ] The Director’s concern at removal was that E.E. was at risk of physical harm by her parents, or while in their care, if she was to return home at this stage of their investigation. Due to A.E.’s young age, she, too, was vulnerable to that risk and therefore, she, too, needed to be removed. [ 42 ] Since the children’s removal, the parties have had regular, and primarily supervised, access with the children.

Based on the noted observations of those who supervised those visits, including social workers, the foster parent, and Beacon Community Services, those visits have gone very well and without any concerning incidents. Quite the contrary. Those observations demonstrate that the parties are child focused, balanced in the care of the children, and sensitive to the children’s needs. They have ensured that transitions of the children back to the foster parent go well and are supported.

The Ministry has moved visits from fully supervised, to ‘book-ended’ and now intend to move to unsupervised visits. [ 43 ] The parties have recently moved into their own accommodation which has been seen by Ms. Watt. She has no concerns with the parties’ current living arrangements. [ 44 ] Ms. Watt testified that the Director continues to want to have both children assessed by VI SCAN and seen by another ENT specialist so that a second opinion about E.E.’s injury can be obtained. The parties are opposed to those medical assessments being done and have been opposed to meeting with Ms.

Watt in person to discuss what happened. While this creates some difficulty in moving forward with the Ministry’s attempts to find out what happened, the parties’ hesitancy in discussing what happened is understandable in light of the outstanding criminal investigation.

CONCLUSION: [ 45 ] Having considered the evidence within the context of the applicable law, I am satisfied the Director’s evidence has met the threshold for removing both children on August 30, 2022. [ 46 ] The evidence establishes some trustworthy evidence upon which a court could find that both children needed protection at the time of their removal. [ 47 ] When considering what order to make under s. 35, I have taken into consideration all of the evidence. [ 48 ] In my view, it is in the children’s best interests to be returned to their parents subject to the Director’s supervision.

I accept the terms of supervision proposed by counsel for the parents. Those terms were negotiated and agreed to by all parties when Judge Sacca made her order and appear, in my view, to ensure the children’s safety pending completion of the Protection Hearing. [ 49 ] This order, as well, best meets the children’s best interests. The children will not have to be moved to another foster home; consequently, they will not have to adjust to new and strange caregivers. It is significant that while in foster care, the children do not have caregivers that speak Spanish (and A.E. does not speak English).

[ 50 ] To keep the children in care so that an assessment can be completed by VI SCAN is not appropriate in these circumstances. The VI SCAN assessment can be conducted while the children are in the their parents’ care; while the parents do not consent to that assessment, the Director has another avenue, other than retaining the children in care, to obtain that assessment (e.g. application under s. 59 of the Act ). ORDER: [ 51 ] Therefore, there will be an interim order, pursuant to s. 35(2)(

b) of the Act , that the children be returned to their parents’ care, under the Director’s supervision, on the same terms as ordered by Judge Sacca on September 2, 2022. Those terms should be outlined in the order. [ 52 ] Pursuant to s. 37 of the Act , a date for the Protection Hearing is to be scheduled for January 5, 2023 at 2:00 p.m. ____________________________ The Honourable Judge J. Barrett Provincial Court of British Columbia