Director v. T.J. Date:, 2015 BCPC 9

Citation: Director v. T.J. Date: 20150123 2015 BCPC 0009 File No: 101118 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family Division IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: C.J. , born [omitted for posting] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: T.J. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH Counsel for the Director: Brittany Crow Counsel for the Parent: Michael Kennedy Place of Hearing: Kelowna , B.C.

Dates of Hearing: December 4 & 9, 2014; January 16, 2015 Date of Judgment: January 23, 2015 I. INTRODUCTION [ 1 ] The father of [omitted for posting] CJ. is unknown. C.J. was removed from his mother (T.J.) on December 1, 2013. After hearing three days of evidence, on September 5, 2014 Judge Threlfall made a so called “last chance” six-month temporary custody order and granted the mother supervised access in her home. That access commenced September 16, 2014.

The Director believes the child reacted negatively to the supervised access moving to the home and it triggered an emotional melt down. [ 2 ] On October 27, 2014 the Director applied to cancel access in the mother’s home and to move all future access to the ministry office.

In the interim, all access visits were moved to the ministry office, with the last such visit happening November 13, 2014. [ 3 ] Before there was time to hear the Director’s application, in mid-November, the child made further disclosures to police, claiming his mother choked him when he lived with her and the child stated he didn’t want to see his mother. Effective November 18, 2014 the Director cancelled all access pending completion of the police investigation and pending completion of the Director’s court application. The Director then asked the court to cancel all access.

The mother’s counsel applied for a finding that the Director is in contempt of court by not following the September access order. [ 4 ] Judge Threlfall was unavailable to hear the applications. Given the urgency of the applications, arrangements were made, with the consent of Judge Threlfall, for me to hear the applications. I have now heard three further days of evidence. II. THE FACTS [ 5 ] [Omitted for posting] C.J. was removed from his mother T.J. on December 1, 2013. The child has special needs including Attachment Disorder, ADHD and an Oppositional Defiant Disorder.

His daily conduct was so out of control that even with close individual supervision, he was unable to attend Kindergarten regularly. Prior to the removal, he was heavily medicated to control his outbursts. This somewhat controlled his outbursts but led to other dysfunctions given his “zombie like” reaction to the medication. [ 6 ] Attachment Disorders are usually formed in the first two years of the life of an infant and almost always before the infant is school aged. With a secure attachment, when experiencing stress, the infant looks to the care giver for proper support.

Insecure attachments take one of three forms (Anxious Ambivalent, Avoidance, or Disorganized) and these three insecure attachments are collectively referenced as a “Reactive Attachment Disorder”. Anxious ambivalent attachments occur when the care giver at times provides the infant’s needs but at times does not provide those needs. The infant feels separation anxiety when separated from the caregiver but does not feel reassured when the caregiver returns. These infants grow into childhood being clingy and having unhealthy mood swings.

Avoidance attachments occur when the care giver is unable or unwilling to provide the infant’s needs such that the needs are never met and the infant grows up in childhood avoiding the caregiver. These children are said to often be withdrawn, depressed and unable to engage well with other children. Disorganized attachments occur when the infant perceives the care giver or home environment as frightening such that there is no organized style of meeting the child’s needs. These children are the most difficult to manage and they often act out in rages.

With all three attachment disorders the children often have in common a difficulty relating to peers and other adults in the world, community and school, thus making a specific attachment diagnosis difficult. Children with any reactive attachment disorder often run when they perceive threat rather than going to their care giver for support. C.J. is said to have elements of both anxious ambivalent and disorganized attachment disorder. This disorder obviously developed when C.J. was an infant and it predates the December 1, 2013 removal. [ 7 ] Since his removal, C.J. has remained in the same foster home.

His functioning steadily and markedly improved in the foster home. He stopped using all medications and started attending school regularly. Throughout this time of improvement, he also continued having weekly visits with his mother, supervised at the ministry office. [ 8 ] In an April 2014 Parental Capacity Assessment, Dr. Posthuma opined that the mother has a Personality Disorder, making it improbable that she will learn how to meet the needs of the child.

Doctor Posthuma further opined it is highly probable the child will regress and return to severe acting out and having aggressive and uncontrollable behaviour if he is returned to his mother’s care. Dr. Posthuma believed consideration should be given to reducing or eliminating the mother’s access to the child. [ 9 ] After hearing three days of evidence, on September 5, 2014 Judge Threlfall made a finding of need of protection and then made a so called “last chance” six month temporary custody order under s. 49(7)(

c) of the CFCSA. That order contained two access terms in favour of the mother:

a) A two-hour visit with the child once per week in her home, supervised by an Outreach worker from Building Healthy Families;

b) A one-hour visit with the child once per week at the office of Colleen McCullagh or Stepping Stones, supervised by an Outreach worker from Building Healthy Families. [ 10 ] Colleen McCullagh, as the child mental health therapist, had already been doing trauma therapy with the child. Given the direction of Judge Threlfall’s order, the plan was for Colleen McCullagh to now move from trauma therapy to “Attachment” therapy

between the child and mother. It involves having Ms. McCullagh present when the child and mother are together. It can only happen in a productive way when the trauma therapy has been sufficiently fruitful so as to allow for healthy attachment therapy. This appeared to be the situation at the time of Judge Threlfall’s September order. However, the cold reality is that once the home visits started, the child had a significant emotional melt down such that Ms.

McCullagh had to return her focus back to trauma therapy for the child as opposed to attachment therapy. [ 11 ] September 16, 2014 the first supervised access in the mother’s home occurred. With hindsight, it is undeniable that with the ten home visits that followed, the child became deregulated and in fact regressed significantly. [ 12 ] The access supervisor Coleen Purcka impressed me as being very good with her job as a supervisor. She also works as a youth probation officer and is a family support worker. She is trained in parenting wisely. She deals with many children with behaviour issues.

She testifies that with these two hour home visits, C.J. acted out with temper tantrums six to ten times per visit. Over a short two hour visit that is a lot of temper tantrums. Ms. Purcka recorded one such outburst on October 7, 2014 and played that recording with her evidence in court so that the court could have an example. Ms. Purcka does not observe the mother saying or doing anything inappropriate during the visits, but the mere presence of the mother or being in the mother’s home seems to trigger destructive emotions in the child.

The child was hyper-vigilant when arriving at the home, usually going into each room to see if everything was safe, before then speaking with his mother. She believes C.J. is very unhappy. Putting fault or blame aside, the mere presence of his mother has not been a calming influence for the child. [ 13 ] On October 20, 2014 the child’s Paediatrician Dr. Wilson wrote: I am writing this letter in my capacity as C.J.’s attending paediatrician.

Since he was taken into care by the ministry late in 2013, he has shown tremendous behavioral improvement such that by the end of the school year in May 2014 he was attending school full time and was deemed safe for school field trips. While in the care of his mother he had been restricted to 1-2 hours at school. He had previously required significant doses of a major tranquilizer (Risperidone) in order for his behavior to be safe but by the early spring in foster care his Risperidone was able to be tapered and discontinued.

His treatment for attention deficit disorder (Concerta) was continued through the school year but was successfully discontinued over the summer holidays. Since visits with his mother in the family home have restarted his behavior has again become extremely unpredictable and emotionally labile. He has been unsuccessful in restarting school. I attended a school based team meeting held today at [omitted for posting] and it was apparent that his level of behavior problems represents a risk for danger both to C.J. and his school mates.

He has regressed to requiring again a severe limitation in the length of his school day. His foster family have noted a marked deterioration in his behavior as well. I am faced with the necessity to restart medication in order to enable some limited return to school. C.J. has a diagnosis of attachment disorder (as well as ADD - combined type and oppositional defiant disorder) and I believe that the increased exposure to his mother, especially in the environment of his trauma, is seriously reopening old wounds psychologically. This assessment is supported by his therapist and the ministry consultant Dr. Posthuma.

If there is to be ongoing contact with mother, then it should be extremely limited, well supervised, and should occur in an emotionally neutral environment such as the ministry office. I would ask that you share this letter with the court for consideration. [ 14 ] The high water mark of C.J. acting out at a home visit was on October 21, 2014 when the moment he arrived at his mom’s home, he had a temper tantrum, jumping up on the table with a vase in his hands and threatening to throw the vase. He later threw yogurt. He rammed his mother in anger. Later at the park he threw rocks at the ducks.

He had a temper tantrum throughout that October 21 st visit and never became regulated for the entire two hours. This tenth home visit ended up being the final home visit. [ 15 ] On October 27, 2014 the Director applied to the court to stop future access in the mother’s home, requesting all future access occur back in the ministry office.

In the interim, the Director moved all visits back to the ministry office, with the last such ministry office visit happening November 13, 2014. [ 16 ] On November 13, 2014, when riding home from that last access visit, the child disclosed to his foster mother that when he lived with his mother, she physically abused him, including choking him. This disclosure soon led to police involvement.

Effective November 18, 2014 the Director formerly cancelled all future access pending the police investigation and court review. [ 17 ] The foster mother told police on November 20, 2014 that C.J. was expressing not wanting to go to access visits with his mom. The child had told the foster mother, “This is stupid--I want to throw myself off a bridge.” The foster mother claims that after the visits, C.J. was mad and that every Tuesday and Thursday was really hard for him. She believes the child’s behaviours have significantly regressed since visits started in the home of the mother.

Unfortunately, even after the home visits stopped and visits were limited to being in the ministry office, the child continued his regression. [ 18 ] On November 21, 2014 Cst. McCarthy interviewed C.J. In that statement, the child told Cst. McCarthy that he hated his mom and when he lived with his mom, twice his mother choked him and also slapped him in the face. Cpl Tretiak then wrote to the social worker, stating that both Cpl Tretiak and Cst McCarthy felt C.J. should not have any contact with his mother. The police investigation is ongoing. [ 19 ] Colleen McCullagh is the child therapist and counsellor.

She has for several months provided trauma therapy to the child. In September she attempted to lay the foundation for attachment therapy. That required her working with both the mother and child at the same time. Ms. McCullagh initially met separately with the mother to set the rules for the attachment therapy and to review the strengths and weaknesses of the ongoing home visits. However, the conduct of the child regressed so quickly after the home visits started that the therapist never had a chance to meet with the child and mother together.

The therapist abandoned the planned attachment therapy in favour of returning to focus on trauma therapy for the child. The therapist believes no meaningful attachment therapy can happen until such time as the child is first regulated and not feeling threatened by the process. Since the mother`s last access visit was November 13, 2014, Ms. McCullagh no longer meets with the mother and it won’t resume until such time as access is reinstated. [ 20 ] The therapist also believes the mother likely needs her own trauma therapy through some other adult mental health counsellor before Ms.

McCullagh can start attachment therapy between the mother and child. Again the cold reality is that it is unlikely the needed

trauma therapy for the child and the mother will complete before the March 5, 2015 ending date for the last chance order. [ 21 ] It is noteworthy that in late November 2014, the supervisor Ms. Purcka (in the absence of the mother) had two hours of one-on- one time with the child. They went to McDonalds and then they went shopping together and throughout that time the child had no outbursts. This is in contrast to the multiple outbursts happening with the supervised access in the family home. [ 22 ] Over Christmas and to the present the child has not been asking to see his mother.

He has recently changed is ADHD medication and he is becoming more stable, yet not sufficiently stable to return to school for more than two hours at a time. He continues receiving weekly trauma therapy through his child mental health therapist. He still hasn’t had an access visit with his mother since November 13, 2014. The mother doesn’t perceive the child being afraid of her and she believes the trauma the child is experiencing is the result of being removed. She believes the child looks forward to visiting her and he wants to come home to live. The mother denies all of the multiple abuse claims of the child.

These denials include not bending his fingers back, not hitting him, not stretching his legs out until they hurt, and not spanking him, not pinching, flicking or strangling him. The mother agrees her son has had a significant mental melt down, but she believes the cause is his being away from home. III. ANALYSIS [ 23 ] Counsel for the mother submits the Director acted in a high-handed manner in frustrating the intent of the September 5, 2014 order by cutting off all access. The mother wants her home visits restored but realistically asks to at least have some supervised access in the ministry office.

Counsel for the mother rightfully states that a six month last chance order becomes a no chance order if all access is denied. There is some truth to that statement, albeit in circumstances where all agree the focus must remain upon the best interests of the child as opposed to the parent. Counsel for the mother also points out that the claims of abuse made by the child are not credible. [ 24 ] The Director seeks cancellation of all access for the mother.

The last chance order expires March 5, 2015 and the Director has already applied for a continuing custody order under section 49(9) and that hearing could reasonably happen as early as April or May of this year. [ 25 ] The paramount consideration is the safety and well-being of the child. That safety and well-being is at the heart of the best interests of the child. It cannot be said the Director acted contemptuously where they receive new information (a melt-down following the introduction of home visits).

They formed the opinion that circumstances had changed such that the court ordered access no longer met the well-being of the child. Ultimately it is for the court to decide whether access is in the best interests of the child, but the Director followed the proper procedure of forthwith bringing the existing access order back to the court for review given their belief the circumstances had changed. [ 26 ] What new circumstances exist since the making of the September 5, 2014 access order?

a) The child acted out at the home visits. The access supervisor saw six to ten temper tantrums of the child with each of those visits;

b) The child acted out at school such that he was no longer allowed to attend regularly, given the safety concerns for all the school children;

c) The melt down of the child continued even after the supervised visits were moved back to the ministry office;

d) The child claimed in October 2014 the mother choked him on multiple occasions when he was in her primary care (before the removal);

e) The RCMP are actively investigating the mother for allegedly assaulting the child. If the allegation is true, it is understandable why the child acts out emotionally when he is back in the same home environment where such alleged abuse happened. If the allegation is false, then it also speaks volumes regarding what lengths the child is prepared to go to in avoiding his mother;

f) The paediatrician strongly believes the emotional health of the child has significantly regressed since the access in the home started;

g) The child is again medicated for his ADHD, something that wasn’t required before the home visits started;

h) The child therapist believes attachment therapy is unworkable until such time as the child becomes more regulated with trauma therapy and until the mother also receives her own mental health trauma therapy;

i) The foster mother believes the child has significantly regressed since the home access visits started. To date he is starting to become slightly more regulated, but not to the point where he can attend school full-time. [ 27 ] I do not have a clear understanding of why the child is acting out the way he is. It would appear that the mother is not saying anything inappropriate to the child during her access visits. Yet the mere presence of the mother or of the child in the mother’s home seems to trigger a lot of negative emotions in the child.

Such triggering can’t be in the best interests of the child if it goes beyond being therapeutic and becomes deregulating. From a therapeutic point of view, even if a continuing care order is made, at some point the child needs to come to grips with the underpinnings of his unhealthy relationship with his mother. I accept this cannot happen if he is significantly deregulated.

In other words, I accept and adopt what the child mental health therapist believes regarding the child needing regulated before attachment therapy can happen. [ 28 ] The more difficult question is whether limited and controlled contact would help with regulating or whether no contact better meets that objective. I accept that in the interim, it would not be in the best interests of the child to have home visits with his mother.

What of supervised visits in the ministry office? Would that be therapeutic for the child and in his best interests? The experts suggest otherwise. Dr. Posthuma opined that it was highly probable the child would regress and return to severe acting out with aggressive and uncontrollable behaviour if he was returned to his mother’s care. Dr. Posthuma questioned whether it would be in the child’s best interest to have any contact with mother. The child mental health therapist believes the child again requires trauma therapy before any attachment therapy can happen.

The paediatrician writes “if there is to be ongoing contact with mother, then it should be extremely limited, well supervised, and should occur in an emotionally neutral environment such as the ministry office.” The social workers believe it is no longer in the best interests of the child to have any contact with his mother. [ 29 ] There is no doubting the mother loves her son. This is a particularly troubling case when it appears the mother has said nothing in access visits that the supervisor thinks was inappropriate.

That may be true given a reactive attachment disorder dates back to when the child was an infant. Ultimately, this case is not about the mother or the director, but rather, all focus is on the best interests of the child. I am not prepared to go back now to regularly scheduled access visits unless it can now have some therapeutic context in the presence of the child therapist.

I think this therapeutic context is part of what Judge Threlfall was hoping would be accomplished with his last access order given his attempt to involve in the access plan the child therapist. [ 30 ] The court has no authority to force a third party child therapist to engage in therapeutic supervision of access between the mother and child, nor would the court want such access to happen if the therapist truly believed such access was further traumatizing and destabilizing the child. However, I would ask the child therapist to be given a copy of my reasons for judgment.

I ask her to consider asking the child whether he would want to see his mother either in the office of the therapist or in the ministry office, supervised by the therapist. If the child makes it clear he doesn’t want to see his mother, then no access should happen. If the child equivocates, then the therapist should continue the conversation with the child, provided the child is not showing signs of destabilizing with the conversation. If the child wants to see his mother, then it is a pretty good indication that such access would be good from a therapeutic point of view and it should be arranged. IV.

CONCLUSION [ 31 ] This court finds no contempt in the conduct of the director regarding cutting off the court ordered access, given the director immediately brought their application to court for review. [ 32 ] This court cancels the access term of the order of September 5, 2014 involving access in the family residence. [ 33 ] This court also cancels the access term of the order of September 5, 2014 involving a one-hour visit with the child once per week at the office of Colleen McCullagh or Stepping Stones, supervised by an Outreach worker from Building Healthy Families and replaces it with the following: [ 34 ] This Court requests that the child mental health therapist Colleen McCullagh ask the child whether he wants to see his mother either in the office of the therapist or in the ministry office, supervised by the therapist.

If the child makes it clear he doesn’t want to see his mother, then no access will happen. If the child equivocates, then the therapist could continue exploring the topic with the child, provided the child is not showing unhealthy signs of destabilizing with the conversation.

If the child expresses a desire to see his mother, supervised by the therapist, then such a one hour visit should happen without further court order. [ 35 ] This court directs that the ministry report in writing to the court as soon as possible, and in any event no later than January 30, 2015, and also provide a copy to counsel for the mother.

The report is to confirm whether the child therapist was willing to participate in speaking with the child regarding the child having access with the mother, whether any such meeting between therapist and child happened, the outcome of any such meeting, and whether any such one hour access visit happened between the mother and child as supervised by the therapist. Any such access will either be at the office of the therapist or the office of the ministry. [ 36 ] This court adjourns the completion of the decision regarding access to after first receiving the updated report from the ministry.

This court adjourns it to Wednesday January 28, 2015 in courtroom 9 at 12 noon. This court also adjourns the director’s application for a continuing custody order to that same date and time. On that date, the court is to receive witness lists and time estimates from the parties based on Judge Threlfall being the presiding judge for that hearing. I will only preside at that hearing if both parties jointly file a written statement consenting to such an arrangement. Otherwise, it will be Judge Threlfall presiding. On January 28 th the matter will ultimately be referred back to the JCM to fix the hearing date.

Regardless, I will continue being the presiding judge for any interim access applications which are returnable before April 7, 2015 when Judge Threlfall returns. ------------------------------------- R.R. Smith, P.C.J.