CFCSA v. J. Date:, 2013 BCPC 189

Citation: CFCSA v. J. Date: 20130627 2013 BCPC 0189 File No: 01240523 Registry: Prince George 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.E.R.J. , born [DOB] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: L. C. N. PARENT AND: R. L. J. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. J. BRECKNELL Counsel for the Director: S. D. M. Wagstaffe

Counsel for the Parent: D. M. Evans-Hatch Counsel for Parent Father : S.D.M. Wagstaffe as agent for I. Henderson Place of Hearing: Prince George , B.C. Date of Hearing: June 25, 2013 Date of Judgment: June 27, 2013 [ 1 ] THE COURT: This is my decision on Court File Number 1240523, the matter of the J. child. [ 2 ] C. E. R.J. ("C.") was born on [DOB]. His parents are L. C. N. ("Ms. N.") and R. L. J. ("Mr. J."), collectively "the Parents." [ 3 ] The Director, pursuant to the Child, Family and Community Service Act , seeks a Continuing Custody Order pursuant to s. 49 of that Act to keep C. permanently in its care.

The Parents seek what is often referred to as a "last chance order" pursuant to s. 49(7) of the Act for a period of six months, with the eventual plan that C. would be returned to live with Ms. N. Mr. J. supports that plan. [ 4 ] Ms. N. is 22 and is a member of the N. W. First Nation located near F. L. She was born into an extremely dysfunctional, alcohol-fuelled family. She and her siblings were placed in foster homes on several occasions during her life. She was abused physically, psychologically, and sexually as a youngster. She turned to alcohol at an early age and is a self-admitted alcoholic.

She recently completed a full-time residential program for alcohol abuse but has returned to drinking since then. [ 5 ] Ms. N. has another child from a previous relationship who was born in [DOB]. That child was removed from her care and placed with family members due to Ms. N.'s maintaining her relationship with her then partner whose violence placed that child and Ms. N. at risk. [ 6 ] Ms. N. has recently been employed by a store at the N. R., but she left that position to return to Prince George where she is now residing in a homeless shelter.

She stated that she has plans to look for a residence for herself and employment, or maybe to attend school, but those plans have not yet come to fruition. [ 7 ] Mr. J. is 33. He is a member of the L. B. First Nation. He did not share the details of his upbringing with the Court, but until aged 27, he was fully employed and financially stable. In 2007, he became enmeshed in the use of crack cocaine and he lost all of his resources: his job, his home, and his automobile. He has since turned from that addiction but replaced it with the addiction of alcohol. He acknowledges he is an alcoholic.

He has been to full-time residential treatment for that addiction in 2010 at the insistence of the Director, but that treatment did not prove successful. [ 8 ] Mr. J. says that he is prepared to deal with his alcoholism and he recognizes that failing to do so may have an adverse impact on his relationship with Ms. N. and C., but he says he will only go to treatment when he is ready, and he is not yet ready. [ 9 ] Mr. J. has two previous children by two previous partners. One lives in Burns Lake with family who will not let Mr. J. see her. The other, M., lives with his mother in Prince George.

In order for M. to be permitted to live with his mother without concerns on the part of the Director, Mr. J. had to agree to and did comply with severing his relationship with that woman. That was because of Mr. J.'s alcoholism and his violence towards that spouse. [ 10 ] Mr. J. has a history of spousal violence which has now extended to his relationship with Ms. N. There are reports of Mr. J. assaulting Ms. N. dating back to early in their relationship. There were assaults by Mr. J. on Ms. N. which occurred during her pregnancy with C., including one three days before his birth. [ 11 ] Mr.

J. has been convicted and has been sent to jail for assaulting Ms. N. He has been convicted and sent to jail for breaching his Probation Order which requires him to stay away from Ms. N. It appears that they have remained in a spousal relationship despite the danger to Ms. N., in spite of Court Orders to remain apart, and in the face of knowing that one of the main concerns of the Director concerning C.'s safety is the continuation of their relationship. [ 12 ] With regard to that concern, Ms. N. says that she will sever her relationship with Mr. J. if C. is returned to her, and Mr.

J. says he will stay away from Ms. N. if that occurs, offering as evidence of his intention the fact he agreed to stay away from his son M. so his mother could care for him, and he has done just that. [ 13 ] Given the experience surrounding Ms. N.'s first child and the nature of the relationship between Ms. N. and Mr. J., the social worker for the Director began to offer services to Ms. N. while she was pregnant with C. The social worker had also received information that Ms. N. was drinking during the pregnancy, and that also raised concerns. [ 14 ] In addition, during the pregnancy, Ms.

N. was living with and came into contact with a person who had active tuberculosis. This living arrangement continued after C. was born, even though Ms. N. had agreed to reside in and abide by the rules of a local women's shelter while a long-term safety plan was being developed for her and C. [ 15 ] During the month that Ms. N. was supposedly residing at the shelter, she regularly refused to abide by that residence's rules. She often absented herself from that residence, she met up with Mr.

J. when she had C. with her, against the wishes of the social worker, and she stayed at the place where the person with the suspected active tuberculosis was living. Those actions caused grave concerns for the social worker, and after trying but failing to develop another suitable safety plan for C., he was removed from Ms. N.'s care on February 2, 2012. [ 16 ] It should be noted parenthetically that it later turned out that the person with the tuberculosis was no longer in the active phase.

[ 17 ] Since February 2, 2012, C. has resided in the same foster home. There have been efforts made by the social worker to set up a

schedule of visits between C. and Ms. N. and Mr. J., but they became infrequent and were often missed by nonattendance of one or both of the Parents. These visits were further complicated by Ms. N. moving back to the N. R. and the difficulty she experienced in getting to Prince George. To alleviate that, the social worker provided transportation funds. Those funds were accessed, but a visit did not occur after they were accessed, so those funds were not further replenished. [ 18 ] Ms.

N. says she returned to N. because she was depressed, but she did not seek any assistance from her doctor or any counsellors during the time she resided in N. She did, however, find employment which lasted until she recently returned to Prince George. She says that she dealt with her depression by, in her words, "drinking a lot." [ 19 ] From the time C. came into care until today, his time with his parents has been limited, infrequent, and transitory. There was no contact by Ms. N. or Mr. J. with the social worker from February 2012 to May 2012, at which time some visits were arranged.

These visits were to be for two hours. Three visits were arranged, and two of them were kept by Ms. N. and/or Mr. J. The third was a no-show by the Parents. [ 20 ] Ms. N. next requested access to C. in October 2012, but there was one no-show and one occasion when Ms. N. did not confirm her availability so the visit was cancelled. The requirement on Ms. N. to confirm a visit was to ensure the convenience of the foster parents, who often provided transportation of C. to the visits and to ensure that C. was not disappointed when visits did not occur. [ 21 ] Two visits were arranged but not confirmed by Ms.

N. in November 2012, and hence they were not held. [ 22 ] In January 2013, two visits were arranged, confirmed, and held, and according to all reports, things went well. [ 23 ] In March 2013, Ms. N. was in treatment, and Mr. J. had a visit that it is reported went well. [ 24 ] In April 2013, two visits were arranged but not confirmed and were cancelled. [ 25 ] In May 2013, two visits were arranged, confirmed, and attended, one by Ms. N. only and one by both Parents. [ 26 ] In June 2013, one visit was arranged and confirmed, but Ms.

N. did not show up, although she called a half hour after it was to commence to see if it was still on, but C. had been returned to the foster parents' home by that time. [ 27 ] In total, there have been eight visits in the last 16 months. The visits that the Parents have had with C. have been supervised, and in many respects, the reports are that the visits were well-attended and went well. C. is generally a happy youngster and interacts well with both Parents, and they demonstrated attentiveness to his needs and wants, and they played with him.

However, when he became distressed, he turned, as one might expect, to the foster parents for reassurance and comfort. [ 28 ] Since C. has been in care, the social worker has set out on numerous occasions the steps that Ms. N. would have to take to prepare for a reintegration with C. as a parent. These include: (

a) counselling to address her past traumas so that she can develop a sense of responsibility towards C. and move from putting her own needs and issues first and learning to focus on the needs of C.; (

b) obtain and retain a suitable residence; (

c) abstain from alcohol and drugs; (

d) cease the relationship with Mr. J. so as to protect herself from ongoing spousal violence and abuse and to protect C.; and (

e) attending parenting skills development such as Project Parent North. [ 29 ] In the months following C.'s removal, the social worker was very proactive in trying to assist Ms. N. in that regard, but faced with a lack of uptake from Ms. N., those efforts have diminished and now Ms. N. and the social worker rarely have contact, and when they do, they communicate mostly about court matters. [ 30 ] Of the five parameters set out by the social worker since February 2012, Ms. N. has addressed them in the following ways. A. Counselling [ 31 ] Some arrangements have been made but no steps yet taken, although Ms.

N. acknowledges there may be resources available to her through her First Nation. B. Residence [ 32 ] Since returning to Prince George, Ms. N. is "looking into it," although she did not share with the Court what efforts were made and what success or difficulties she has encountered. C. Abstinence [ 33 ] Ms. N. went into treatment for six weeks in the spring of 2013 but has returned to drinking. D. Mr. J.

[ 34 ] Ms. N. promises to end the relationship if C. is returned to her care. There are allegations that as recently as June 1, 2013, Mr. J. assaulted Ms. N. again, and charges are pending in that regard. Mr. J. is at present serving an intermittent sentence for having contact with Ms. N. E. Parenting Development [ 35 ] The social worker made arrangements early in 2012 for Ms. N. to attend Project Parent North, but Ms. N. chose to move to N. instead. [ 36 ] Ms. N. says that she is making some progress in the following areas: (

a) She attends Alcoholics Anonymous one time per week and she knows she has to stop drinking; (

b) She has arranged some counselling to start soon; (

c) She is looking for work; (

d) She would like to go to school but has no money, and she has made no inquiries regarding the possibility of funding but knows that some may be available through her First Nation; (

e) She has lost her phone but hopes to get another one and, in the meantime, is able to get messages through the shelter she resides at. [ 37 ] Mr. J. recognizes that his presence in Ms. N.'s life will make it almost impossible for Ms. N. to have C. returned to her. He points to the situation with his son M. as an example that he can do it, yet he has not done it and has made no attempt to assist Ms. N. and C. by taking any steps in that regard. He also acknowledges that there is likely to be little change in his life be it the relationship with Ms.

N. or his drinking in the foreseeable future. [ 38 ] In any decision under the Act , the provisions of s. 2 and s. 4 provide guidance and direction for the Court. This guidance and direction becomes sharply focused when a Continuing Custody Order is requested. The taking of a child from its parents and placing it in the permanent care of the government through foster care or adoption is a drastic and often irreversible last resort.

It should be done only in the clearest of cases where the evidence is overwhelming that such a result is the only possible one by applying the evidence presented, the facts found, and to consider the directions set out in the Act . [ 39 ] The applicable provisions of ss. 2 and 4 that relate to this case include the following: 2 This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles: (

a) children are entitled to be protected from abuse, neglect and harm or threat of harm; (

b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents; (

c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided; . . . (

e) kinship ties and a child's attachment to the extended family should be preserved if possible; (

f) the cultural identity of aboriginal children should be preserved; (

g) decisions relating to children should be made and implemented in a timely manner. [ 40 ]

Section 4 says: 4

(1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child's best interests, including for example: (

a) the child's safety; (

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

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

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

e) the child's cultural, racial, linguistic and religious heritage; . . . (

g) the effect on the child if there is delay in making a decision.

(2) If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests. [ 41 ] The court must also consider as well the provisions of s. 49(5), (6), and (7) in determining whether a Continuing Custody Order should be granted. Subsection (5) of s. 49 says:

(5) The court may order that the child be placed in the continuing custody of the director if there is no significant likelihood that (

a) the circumstances that led to the child's removal will improve within a reasonable time, or (

b) the parent will be able to meet the child's needs.

(6) Before making a continuing custody order under subsection (5), the court must consider (

a) the past conduct of the parent towards any child who is or was in the parent's care, (

b) the plan of care, and (

c) the child's best interests.

(7) If the court does not make a continuing custody order, it must make one of the following orders: (

a) that the child be returned to the custody of the parent apparently entitled to custody; (

b) that the child remain in the temporary custody of [the Director] or a person other than the parent for a specified period of up to 6 months . . . [ 42 ] In considering the provisions of the Act and the evidence and submissions made in this case, I come to the very saddening but necessary decision that C.'s best interests can only be met by the granting of the relief sought by the Director. [ 43 ] C. is 18 months old. He has lived for 16 1/2 months in the care of foster parents. Ms. N. and Mr. J. have had only sporadic and infrequent contact with him. They both continue their struggles with alcohol, Ms.

N. having taken treatment but returning to drink soon after, and Mr. J. continuing to drink and with no plans to stop until he is ready. They continue their spousal relationship even though they know it is toxic, poses a danger of injury to Ms. N., and is a major impediment to the safe return of C. to her care. [ 44 ] Ms. N. refuses to act, preferring to say that she will act if C. is returned to her. Ms. N. has taken almost no steps in the past 16 months to address the real and serious concerns of the social worker, to address her past traumas and issues that would interfere with her success of parenting C.

Overall, C.'s best interests are no longer served by any more delay in making a decision on his future. Therefore, there will be a Continuing Custody Order granted under s. 49(5)(

a) and (b). [ 45 ] There remains the issue of the Parents' contact with C. going forward. The Director's counsel points out that the plan of care indicates the plan is to allow continued access so long as it is in C.'s best interests. Counsel for the Parents counter that a plan of care is simply that, a plan, and that such plans may change. As such, they seek orders for access under s. 56 as appropriate. [ 46 ] In these circumstances, and given the yet unacted upon promises of Ms. N. to turn things around in her life, a time-limited order for access is appropriate.

There will be an order for access to both Parents supervised at the discretion of the Director for a period of six months. The access will cease at that time unless Ms. N. brings the appropriate application to set aside the Continuing Custody Order under s. 54 and the judge hearing that application grants an order to extend the period of time for access. [ 47 ] Anything further, Mr. Wagstaffe? [ 48 ] MR. WAGSTAFFE: A finding that the child is in need of protection, Your Honour. [ 49 ] THE COURT: Yes, there will be a finding for that. (REASONS CONCLUDED)