Director v. R.K. and C.S. Date:, 2017 BCPC 94

Citation: Director v. R.K. and C.S. Date: 20170329 2017 BCPC 94 File No: 103184 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: D.R.S. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: R.K. and C.S. PARENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH

Counsel for the Director: M. Kennedy Counsel for the Parents: D. Kuehn Place of Hearing: Kelowna , B.C. Dates of Hearing: 2017: March 1,2,3,7,8,9 Date of Judgment: March 29, 2017 I. Introduction [ 1 ] The child (“D.”), born [omitted for publication], was removed from birth based primarily on historical child protection concerns. R.K. (the “mother”) has seven older children who were all made permanent wards of the Director (C., S., O., M., C.H., H. and [C. “Jr.”]).

The father (“C.S.”) has three prior children ([“Cl”], [“Ha”] and C. “Jr.”), where significant child protection concerns existed, such that two were made continuing care wards and the third was removed and eventually raised by extended family. The Director seeks a finding of need of protection for D. and a continuing Care order in the first instance under s. 41(1)(

d) of the CFCSA . The parents seek a return under supervision. [ 2 ] This case is a good example of how the general principle of “history is the best predictor of the future,” must be balanced with subsequent findings of significant change in conduct over a significant window of time”. This case involves parents where, based on history alone, one might correctly conclude that the parents will never have the capacity to parent, yet in spite of all odds, they seem to have made significant progress in the past two to three years.

At issue is the extent and sustainability of those changes and whether they are sufficient to have their nine month old son safely returned to their care. II. The Facts [ 3 ] R.K. (the mother), born January 24, 1982, is First Nations from the Cat Lake Band in Ontario. Cat Lake is a remote band where the reserve is only accessible by plane. R.K. was raised off reserve in Red Lake, Ontario by her grandmother, experiencing lots of traditional native culture. R.K.’s mother (E.K.), living in Kelowna, struggled with poly-substance abuse issues and was in no position to parent R.K.

However, when R.K. was thirteen, her grandmother became ill and was no longer able to provide the primary care. Accordingly, around 1995, R.K. moved to Kelowna to live with E.K. At that time, E.K. was still active in her addictions and dysfunction. [ 4 ] The combination of becoming a teen, leaving the stable home environment of her grandmother, and being parented by a mother struggling with addictions, predictably led to R.K. having a dysfunctional life. R.K. started struggling with her own addictions and became a teen alcoholic. She dropped out of school in grade ten.

She had no meaningful employment and continued being active in her alcoholic addiction. R.K. had her first child (a son named “C.”) when she was age 18 and C. was removed from birth and eventually became a continuing care ward. There was an open adoption of C. such that to this day R.K. maintains contact with C. [ 5 ] In 2000, R.K. met L.H., who eventually became the father of her next five children (S., O., M., C.H., and H.). At the beginning of this relationship, R.K. was age 22 and L.H. was 24. L.H. also had a daughter (“J.”) from a prior relationship who was in his care.

The family of R.K. and L.H. was also highly dysfunctional. There were significant child protection concerns, which ultimately led to Judge Burdett ordering on July 2, 2013 that all five of those children be continuing care wards of the Director. [ 6 ] The protection concerns regarding the mother were multiple. A parental capacity assessment by Dr. Allan Posthuma was in substance adopted by the court. R.K. was tested at being in the 25 th percentile in cognitive functioning. A concern even bigger than her cognitive functioning, was the high level of dysfunction in her life, such that her children were neglected.

She was an alcoholic from her teens and her pattern of returning to alcohol was for the most part unbroken. She chose relationships with men who were violent. She seemed always dependent on others such that she was unable to protect herself, and she was definitely unable to protect her children. In the process her children were significantly neglected. Ultimately, it was no longer a consideration of whether R.K. had the cognitive capacity to parent her children.

It was clear that if one assumed she had the cognitive capacity, her conduct and behaviour was such that there was no rational alternative to those five children becoming permanent wards. [ 7 ] Eventually, after the continuing care order was made, S., O., M. and C.H. were adopted by their paternal grandmother. As a result, R.K. maintained significant contact with these four children and to this day speaks with them weekly, if not daily, by phone, e- mail or text.

The child H. (who is hearing impaired), was adopted by her Kelowna foster parents (“B.B.” is her adoptive mother) and R.K. also maintains some limited contact with H. This is particularly true given B.B. and her husband also adopted R.K.’s 7 th child named C. “Jr.”, and they are also the foster parents of D. [ 8 ] R.K. started a dating relationship with C.S. in 2011. They met while attending parenting courses in the community. I now digress to the background of the father C.S. [ 9 ] C.S. was born July 8, 1979 in Ontario. His parents separated in 1988 when C.S. was 9 years old.

His mother moved to Detroit and C.S. lived with his mother for 18 months in Detroit. Strangely, when C.S. was 10, his mother simply abandoned him. He initially returned to live with his father in Ontario, but his father was less than fully committed to raising C.S. such that the paternal grandparents became the primary care-givers of C.S. when C.S. was 11 years old. C.S. had a lot of pent up anger towards his mother and this frustration was exacerbated by his Attention Deficit Hyperactivity Disorder. In his early teens, C.S. became a drug user and a drug trafficker, with his drug of choice being crack cocaine.

Predictably, he started accumulating a significant criminal record from his early teens. His criminal convictions included multiple property offences, drug offences, assaults and breaches of court orders. His residence

ended up being more in jail than out of jail. He eventually completed grade 12 several years late, primarily while in jail, although his final course was completed after he was released from jail. [ 10 ] C.S. started a romantic relationship with B. She was several years older than C.S. and she already had several children. Both B and C.S. were drug addicts and the relationship was fraught with violence. The relationship between B and C.S. ended when he was charged with assaulting her in 2001. They had a daughter named “Ha” and all of the children, including “Ha”, were removed by social workers.

To avoid a permanent order being made, custody of H.S. was given to her maternal grandmother. [ 11 ] When he got out of prison in 2009, C.S. developed a romantic relationship with a young woman named [“Da”], who had her own criminal and drug problems. When “Da” was significantly pregnant, she and C.S. moved to Kelowna, purportedly to get away from their dysfunctional lifestyle in Ontario. However, their problems could not simply be left at the Ontario border and their dysfunction continued in British Columbia.

In 2011 they had a daughter named “Cl” and “Cl” was removed from birth in Kelowna. “Cl” was made a permanent ward on April 13, 2012 after a hearing before Judge Hogan. With that court hearing, the court had the benefit of a January 18, 2012 parental capacity assessment of C.S. prepared by Clinical and Forensic Psychologist Dr. Michael Elterman. [ 12 ] Judge Hogan accepted Dr. Elterman’s findings when making “Cl” a continuing care ward. I also accept that Dr. Elterman had it correct in his 2011 assessment of the father. I believe that even the father now accepts those findings were accurate in 2011.

The following is a

summary of those findings of Dr. Elterman: Also, in observing him with “Cl”, I found him to be involved, interested, warm and loving in his manner towards her. I did find in C.S. also, however, a propensity to think that he is able to convince others and may feel that he is able to outwit or out-manipulate the situations that he finds himself in… C.S. seems to lack insight when speaking about the reasons for the removal of the child even though he acknowledges violence, marijuana use and a very unstable situation for the child.

Despite the mask that he wishes to present, the testing suggests that he is someone who is experiencing unhappiness, moodiness and tension. He has low self-esteem and feels currently powerless to change the situation… C.S. is someone who articulates that he wants to be a different kind of father to his daughter and that he is tired of the instability of his past life. I do not believe, however, he is at a point yet where the risks warrant a return of the child to his care. There is still considerable anger under the surface and he lacks insight into his own behaviour.

There are several symptoms that would lead to a diagnosis of anti-social personality disorder based largely on the longevity of his criminal behaviour and criminogenic lifestyle.

C.S. shows parenting ability to the extent that he can act appropriately for short periods of time but I question his ability to demonstrate parenting capacity which would be what is required to put the child’s needs ahead of his own on an ongoing and long-term basis… It is my opinion that he is not yet ready to take on this role until he makes substantial changes in his life and shows a track record of change including employment, counselling, demonstrable refraining from drug use and staying out of trouble with the law. [ 13 ] As stated earlier, the mother R.K. and the father C.S. first met in 2011 when both were attending parenting courses in Kelowna.

Their relationship became more intimate following the April 13, 2012 continuing care order of Judge Hogan regarding the father’s daughter “Cl” and the July 2, 2013 continuing care order of Judge Burdett regarding the mother’s five children S., O., M., C.H. and H. Domestic violence existed in the relationship between C.S. and R.K. The father was convicted twice (once in 2012 and once in 2013) of assaulting R.K. This is in the context of the father then having nearly sixty criminal convictions on his record, of which seven were for assaults and two were for uttering criminal threats.

He also had multiple property related convictions and multiple breach convictions. The 2012 assault of R.K. involved an incident at the Kelowna Petro Can where C.S. was seen by members of the public threatening and assaulting R.K. Bail was denied and R.K. was sentenced to 30 days of time served. The subsequent 2013 assault involved C.S. punching R.K. in the nose outside the Oasis Motel where they were then residing.

C.S. quickly pled guilty and received a further 45 day jail sentence, followed by a one year probation order. [ 14 ] By 2014 C.S. and R.K. were reconciled and living in Kelowna in a common-law relationship. On April 22, 2014 their son C. “Jr.” was born. The infant had no alcohol or drugs in his system at birth. Not surprisingly, given the extensive history of neglect and abuse of the older children, C. “Jr.” was removed from birth by the Ministry and the Director sought a continuing care order in the first instance.

That matter was heard by Judge Cartwright and a continuing care order was made for C. “Jr.” on June 16, 2015. I will now cover some of the significant events that occurred between the 2014 birth of C. “Jr.” and the continuing care order made in 2015. [ 15 ] In June 2014, just two months after the removal of C. “Jr.”, C.S. was involved in an incident near Revelstoke that generated seven criminal charges. C.S. wanted to go to Alberta to attend his 15 year old daughter’s (“Ha”) graduation from middle school.

He testified that Ha gave him an ultimatum that he must attend her graduation or she would sever all future relationships with him. C.S. owned an uninsured car. C.S. was a prohibited driver. He claims that when his planned ride from Kelowna to Alberta fell through, he made the wrong decision of driving his uninsured car to Alberta. That is an understatement. R.K. opposed the plan, but acquiesced, and she was a passenger in the vehicle driven by C.S. When passing through Revelstoke, he was flagged over by the police. He failed to stop and a police chase ensued.

Given the danger of the chase, the police stopped the pursuit. A few miles down the road, C.S. accidentally drove the vehicle into the ditch, where the vehicle rolled and came to a stop upside down. Fortunately C.S. and R.K. weren’t seriously injured. C.S. left R.K. at roadside near the wrecked vehicle and he fled on foot. He eventually hitch-hiked a ride heading to Alberta, but when that driver was stopped for speeding just inside the Alberta boarder, it was discovered that C.S. was the driver of the vehicle that had evaded police.

On October 15, 2014 C.S. was sentenced for dangerous driving, fleeing the police and breach of probation. The global sentence was an 18 month conditional sentence to be served in the community, followed by a year of probation. The first six months of the conditional sentence had a house-arrest term. On April 14, 2017 his conditional sentence is scheduled to end and his probation order is set to start.

His supervisor is an experienced probation officer named Robert Porter who now speaks highly of C.S. [ 16 ] On June 16, 2015 Judge Cartwright provided a written decision wherein C. “Jr.” became a continuing care ward. That decision was made not only on the strength of the evidence of Dr. Elterman and Dr. Posthuma, but also on the fact that since the last continuing

care order had been made in July of 2013, C.S. had all of the new criminal convictions in relation to the Revelstoke incident. In other words, Judge Cartwright had not only historic protection concerns, but also relatively recent parental conduct which was consistent with the historical concerns. Judge Cartwright quite rightly found that at that time, there was no prospect that it would be in C. “Jr.”’s best interests to be returned to either or both parents. Judge Cartwright wrote: What has changed since Judge Burdett granted the CCOs for her older 5 children?

R.K. has, I accept, stopped drinking and using drugs other than marijuana. She has taken courses in anger management training. That is all. Her problems are so profound that this is not sufficient. C.S., since the CCO was granted for his last child, in April 2013, continued to reoffend. He has been convicted twice of assaulting R.K. He was in custody before C. “Jr.” was born. He is charged with committing a series of offences less than two months after C. “Jr.” was born, in July, 2014. After that, he was the subject of 2 warrants for other outstanding charges.

To his credit, C.S. has maintained full time employment, and rents an acceptable home. I am unsure if he remains drug and alcohol free- -as he never grew his hair long enough for testing, which was a criticism Judge Hogan had in 2013. He took anger management courses, the Respectful Relationships course, attended a men’s group at the Kelowna Friendship Center, and lived at Bridges for two months, successfully taking courses, as a condition of his bail order.

C.S. likely has better capacity than R.K. to parent a child, but his personal issues very evidently caused him to make impulsive, reckless, and futile decisions. [ 17 ] I find myself in a somewhat similar situation as that of Judge Cartwright two years ago. I ask a similar question, namely, has anything of significance changed since Judge Cartwright granted her continuing care order? Fortunately, unlike two years ago, many things have changed for the better for these parents. [ 18 ] The following is a brief

summary of my findings of some of the more significant improvements that have happened in the past two years:

a) On January 26, 2017 C.S. was assessed by a psychiatrist named Dr. Neil Hannon and Dr. Hannon strongly believes C.S. does not fit the diagnosis of having an anti-social personality disorder. The significance of this finding is the improved potential treatability of C.S. for his historic anti-social conduct. Dr. Hannon believes the anti-social conduct of the accused (displayed by his 60 criminal convictions) is treatable.

b) C.S. has not been involved in criminal conduct for nearly three years.

c) C.S. has an experienced probation officer who believes that C.S. has made a remarkable turnaround in his lifestyle. The probation officer is very confident that he is not being fooled by C.S.

d) C.S. has had steady employment in the past two years, now being self employed as a roofer and earning a healthy income. This is a significant change for him.

e) The father claims he has seasonally been off work since the mother commenced collecting disability social assistance in the late fall of 2016. I have a concern the parents may not be fully honest in this regard. If the father’s business is doing as well as he claims, then why is his partner on social assistance? Historically, honesty and truthfulness has been a concern regarding these parents. If they have any realistic hope of actually having D returned to their care, they will need to be honest regarding family income and in no way abusing the government system in this regard. This issue needs to be a work in progress for the parents.

f) C.S. no longer uses any illegal drugs, other than marijuana. He does downplay the marijuana usage as simply being for back pain relief, but his doctor testifies that he will never prescribe marijuana to C.S. for pain relief. This is also in the context of the child D showing early signs of asthmatic symptoms such that it will not be in the best interests of D for the parents to be smoking cigarettes, let alone marijuana. C.S.’s doctor quite properly opined that C.S. needs to understand he needs to stop smoking both cigarettes and marijuana for the best interests of D if that child is asthmatic.

His doctor further opined it will be a good test for seeing just how serious C.S. is in changing his lifestyle in order to have his son returned. I concur with the doctor’s opinion in this regard.

g) While it is always difficult to determine from the distance, it would appear there has been no further domestic violence in the relationship and they are, to the contrary, now being respectful with each other.

h) There are currently no young children in the home, such that the capacity to look after the needs of one healthy young child is far less demanding than the needs of looking after five children simultaneously.

i) The parents have lived at the same property now for years. All investigations show it is a well-kept home where no concerns are observed.

j) R.K. has been sober for two years. Some of this is recently confirmed with fingernail drug screening. Her cognitive capacity and parental capacity need to be reassessed in light of her sobriety, to determine or rule out whether earlier beliefs of cognitive incapacity are correct. This is in the context of the mother reading a part of a report (written in professional language) to the court and seemingly understanding. That occurrence seems to be in contrast with the earlier cognitive findings of Dr. Posthuma and the good doctor agrees this needs reassessed.

k) Both parents have now completed multiple parenting courses.

l) Social workers watching the parents interacting with D. have never seen the parents do anything inappropriate with the child.

m) The oldest child of C.S. (now age 16) was adopted with an open adoption plan and that son lives in the central Okanagan and lives

with C.S. and R.K. each weekend. It is purported that this arrangement is with the blessing of the adoptive mother and it is working out well.

n) R.K. continues having weekly if not daily contact with her children S, O, M, and C.H. and this arrangement is said to be healthy.

o) Both R.K. and C.S. have been very regular and consistent with exercising their access with D.

p) Both R.K. and C.S. acknowledge the appropriateness of the Ministry removing their older children and acknowledge the parent’s conduct and their poor parenting was the problem and the social workers were only doing their job. They simply now claim they have made significant changes and want to be evaluated based on their current situation and not solely on their past negative history.

q) Both parents express a willingness to accept any supports of the Ministry. This is a stark change from the days when the father intentionally kept his hair too short to allow any hair drug screening.

r) Both parents are now older (C.S. age 37 and R.K. age 35) and often maturity sets in as one ages. That appears to be the case with these parents. III. Analysis [ 19 ] There would need to be significant and overwhelming changes addressing the historic protection concerns, before there could ever be any realistic chance of D being returned to C.S. and R.K. Such is the depth of historic neglect with the older children.

History usually is the best predictor of the future, but such history must be balanced with weighing that history against significant and sustained changes made by the parents over a protracted window of time. It would need to be a near miraculous change to suffice, given this history. Yet here we are today with the parents in the past two years having made significant changes for the better. But is it enough?

The court must ever be mindful that it is the best interests of the child, and not the best interests of the parents, that must be satisfied. [ 20 ] The test is not whether the exceptionally qualified foster parents can provide a better home than the natural parents. That would be the “best interests” test if the court was dealing with competing Family Law Act applicants. The best interests test under the Child Family and Community Service Act presumes, under the

section two guiding principles, that the family is the preferred environment for the care and upbringing of the child, provided that family can properly address the “safety and well-being” of the child, when provided reasonable supports. This doesn’t mean there is to be an unlimited amount of supports provided such that the supports, to a large extent, take over providing the primary care.

There are both financial and rational limits on the amount of supports contemplated before it can no longer be said the family is able to adequately address the safety and well-being of the child. [ 21 ] In the past, with the multiple other court hearings where the siblings were made continuing care wards, it became irrelevant whether the parents had the cognitive, mental and emotional capacity to parent, given even if they had the capacity, they were not exercising that capacity in an appropriate manner, even when provided supports.

This thus circumvented the need of any formal assessment to determine whether the mother had the intellectual capacity or the father the mental or emotional capacity. There were only suspicions, but no findings, that the mother has a Fetal Alcohol Spectrum Disorder, leading to the absence of cognitive parental capacity. Similarly, there were only suspicions, but no findings, that the father suffered from an anti-social personality disorder that would be very difficult to treat in any timely manner. [ 22 ] I have no difficulty making a finding of need of protection for D.

The history is just that overwhelming, notwithstanding the improvements of the parents over the past two years. Similarly, the court is in no position to be satisfied it will be in the best interests of D to be returned now to the care of his parents even if done under supervision. That said, the test for making a continuing care order in the first instance under section 41(1)(

d) of the CFCSA is much more onerous on the Director than the test when making a continuing care order under

section 49 of the CFCSA . To make such an order in the first instance, there must be clear evidence that such an order is the only realistic alternative. The test in the first instance requires likelihood that the child will suffer harm if returned to the parent such that there is little prospect it would be in the child’s best interests to be returned. The test under

section 49 places a much lower onus on the Ministry such that the court may make a continuing custody order if there is no significant likelihood that the circumstances that led to child’s removal will improve within a reasonable time. [ 23 ] This case involves parents where, based on history alone, one would conclude that the parents have never demonstrated a capacity to parent, yet in spite of all odds, they seem to have made significant progress in the past two years. All involved should rightly look at this progress cautiously and critically, given the history.

That said, the parents have undeniably made significant improvements and have now maintained those improvements for two years, such that the court is not prepared to make a continuing care order in the first instance. Today the Director is unable to prove, on the balance of probabilities, that there is little prospect it would be in the child’s best interest to be returned to the parents. There is now some rational prospect that with the parent’s improvements over the past two years, they may be able to parent D. Not instantly, but within some reasonable time.

Only time will tell if this is the case. [ 24 ] Now that the parents are clean and sober, living in stable housing, having completed several parenting courses, and seemingly having parted company with those involved in a criminal lifestyle, the Director now needs to look at them more closely regarding their capacity to raise D. This will likely involve more testing of the mother’s cognitive capacity and also a closer consideration of having them parenting D. [ 25 ] It would appear that the primary protection concern now is a bit different than it was with their child C. “Jr.”.

The social worker seems to have no overriding concerns with the capacity of either parent to look after D. in the short term. Now the primary concern seems to be whether they have the capacity to parent longer term, when the stresses of life intervene. With their older children, there were not only the long term protection concerns, but also the immediate short term protection concerns which frequently are present when parents are struggling with addictions and are actively associating with others who also have a drug, alcohol or criminal lifestyle.

I make these comments because the existing access order has allowed reasonable access to be supervised at the discretion of the Director. To date nearly all of the access has been supervised. I don’t believe supervision is needed regarding many of the shorter term visits. I am hopeful that over the next three months the level of supervision can be worked out between the parents and the Director. If it isn’t worked out, then I will entertain a subsequent s.55 CFCSA access review application. I also hasten to add that if the

parents want access in their home, they need to find a way of making their home a smoke free environment, given the asthma concerns with D. IV. Conclusion [ 26 ] Pursuant to s. 40 of the CFCSA, this court finds that the child D is in need of protection, within the meaning of section 13(1)(

d) of the CFCSA . [ 27 ] Pursuant to s. 41(1)(

c) of the CFCSA , this court orders that the child D remain in the temporary custody of the Director for three months, expiring June 29, 2017. [ 28 ] Pursuant to s.55 of the CFCSA , this court orders that the parents have reasonable access, supervised at the discretion of the Director, but the said supervision is reviewable by the court if the parties are unable to come to a workable arrangement. Any unsupervised access must also comply with the following: (

a) No overnight access will occur at the family residence before both parents and any other persons residing in the residence stop smoking cigarettes and marijuana. This will be determined to be the case if there is reliable evidence that both the residence and the clothing within the residence do not smell of smoke (the “smell” test); (

b) The father and mother must submit to such random drug screening as reasonably required by the Director, if unsupervised access is to occur; (

c) For any overnight, unsupervised visits, the father C.S. must be present. Any protection concerns with the mother R.K. are not to the extent that the father would need to be present for all of the day visits with the mother. The father needs to be encouraged to accept meaningful employment to support the family. [ 29 ] The May 10, 2017 court date is now cancelled, given it was for confirmation of when the written reasons for judgement would be available, and these reasons are now provided this 29 th day of March 2017. R.R. Smith, P.C.J.