J.D. v. The Director Date:, 2015 BCPC 217

Citation: J.D. v. The Director Date: 20150723 2015 BCPC 0217 File No: 10820 Registry: Rossland 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: E.J.D. , born [DOB] BETWEEN: J.D. APPLICANT AND: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE RESPONDENT File No: 12121 Registry: Rossland AND IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.H. and D.H. APPLICANTS AND: J.D. and D.S. RESPONDENTS

REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E.M. BURDETT Counsel for the Director: Jennifer Barrett Counsel for the Parent: Jesse Gelber Appearing for the Applicants: Lilina Lysenko Counsel for the Respondents: Jesse Gelber Places of Hearing: Rossland and Nelson , B.C.

Dates of Hearing: February 10,11,12 &13, April 20, 21, 22 and 23, May 25, 26, 27,28,2015 Date of Judgment: July 23, 2015 [ 1 ] This is an application by JD to cancel a continuing custody order made on October 11, 2012, with respect to her daughter E, born [omitted for publication]. [ 2 ] While JD seeks to have the continuing custody order set aside, she does not seek the return of E. Rather, she argues that E’s former foster parents, Mr. and Mrs. H, should be granted guardianship and allocation of all parenting responsibilities, pursuant to the application they have brought under the Family Law Act in File 12121.

DS, E’s father, has taken no

part in these proceedings. [ 3 ] The Director of Child, Family and Community Services (the Director) opposes JD’s application. Although the Director placed E with the H’s a few days after E’s birth in a “foster to adopt’ situation, the Director argues that the H’s failed to provide adequate care for E while she was with them. In particular, the Director says Mr. and Mrs. H did not provide adequate medical or dental care for E. The Director argues that in her adoption application, Mrs. H failed to disclose the seriousness of neither her medical condition, nor the multiple medications that she is prescribed.

The Director argues that Mrs.

H cannot manage her own medical condition and that inability is repeated in her failure to meet E’s medical and dental needs. [ 4 ] In earlier Reasons, (February 4, 2015) I determined that JD’s application under the Child, Family and Community Service Act (the CFCSA ) and the H’s application under the Family Law Act (the FLA ) were to be heard concurrently. [ 5 ] It is useful to set out the history of the various proceedings regarding E during her short life. • E was born on [omitted for publication]. • She was removed from JD on October 6, 2011. • On October 13, 2011, an order placing E in the interim custody of the Director was made.

Reasonable access to JD and DS, at the discretion of the Director, was granted. • E was placed with Mr. and Mrs.

H on October 17, 2011 on a fostering to adopt basis. • The Director filed an application seeking a continuing custody order for E on October 19, 2011. • JD and DS opposed that application and after a case conference on December 16, 2011 trial dates were set for October 11 and 12, 2013. • E’s biological father, DS, changed his mind and signed a consent form, agreeing with the Director’s application for a continuing custody order on February 8, 2012. • Similarly, JD signed a consent form indicating her agreement with the Director’s application for a continuing custody order on October 9, 2012. • An order pursuant to sections 60 and 49(5) of the CFCSA was made by the Honourable Judge Mrozinski, placing E in the continuing custody of the Director on October 11, 2012. • E was moved from Mr. and Mrs.

H’s home on May 12, 2014 to a new foster home. • On May 27, 2014, Mr. and Mrs. H filed an application in the Provincial Court under

section 56 of the CFCSA for access to E, as well as an application under the FLA for guardianship and parenting responsibilities for E. • On June 4, 2014, Mr. and Mrs. H commenced a Petition in the Supreme Court seeking relief under the FLA , the CFCSA and the Judicial Review Proceedings Act, asking the Supreme Court to review the Director’s decision to move E from their home, and seeking

an order appointing them guardians of E. • On June 12, 2014, the H’s Provincial Court application under the FLA was dismissed or withdrawn for lack of jurisdiction. However, October the Honourable Judge Sperry made an order under

section 56 of the CFCSA granting Mr. and Mrs.

H daily access to E, pending the outcome of the Petition in the Supreme Court. • On November 14, 2014 JD filed this application under the CFCSA , seeking permission to apply to cancel the continuing custody order. • On November 17, 2014, the H’s filed a second Provincial Court application under the FLA for guardianship and all parenting responsibilities for E. • On December 2, 2014, the Honourable Judge Sperry granted JD permission to apply to have the continuing custody order cancelled. • The H’s Petition was dismissed by consent in mid-December or early January 2015.

The access order made by Judge Sperry terminated upon the resolution of the Petition. However, the H’s continue to see E on a regular basis. [ 6 ] I must first decide whether the continuing custody order should be cancelled before I deal with the application under the FLA: ( N.P. (Re) 1997 B.C.J. No. 1648 ). [ 7 ]

Section 54 of the Child, Family and Community Service Act ( CFCSA ) states: 54

(1) With the permission of the court, a director or a party to a proceeding in which a continuing custody order was made may apply to the court for the cancellation of the order if the circumstances that caused the court to make the order have changed significantly.

(2) At least 10 days before the date set for hearing the application for permission to apply for cancellation of the continuing custody order, notice of the application must be served on the following: (

a) the child, if 12 years of age or over; (

b) the persons who under section 49 (3) are entitled to notice; (

c) the Public Guardian and Trustee; (

d) the director; (

e) the parties to the proceeding in which the continuing custody order was made.

(3) If permission is granted, the court must set a date for hearing the application for cancellation of the continuing custody order.

(4) After considering the importance of continuity in the child's care and the effect of maintaining a relationship the child has with any person, the court may cancel the continuing custody order, but only if it is satisfied that (

a) the circumstances that caused the court to make the order have changed significantly, and (

b) cancelling the order is in the child's best interests. [ 8 ]

Section 2 of the CFCSA sets out the guiding principles of the Act : 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; (

d) the child's views should be taken into account when decisions relating to a child are made; (

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. . [ 9 ] The onus is on JD to prove on the balance of probabilities that there has been a significant change of circumstances since the

continuing custody order was made, and that cancelling the continuing custody order is in E’s best interests. [ 10 ] JD and the H’s allege that most, if not all, of the Director’s witnesses have provided inconsistent and implausible evidence. They suggest that the Director’s witnesses have altered their evidence to conform to each other. In a similar vein, the Director argues that JD’s and Mr. and Mrs. H’s evidence is inconsistent, vague and contradictory.

Hence, the credibility of all witnesses is a central issue in this case. [ 11 ] I have considered the viva voce evidence of all of the witnesses, all affidavits sworn by various witnesses in past Provincial and Supreme Court proceedings regarding E, and all other evidence in assessing the credibility of each witness and the weight I can attach to their evidence. Pursuant to

section 68 of the CFCSA, I have also considered the running records of various social workers and medical professionals, which, given the circumstances under which they were prepared, are reliable and relevant. [ 12 ] It is important to note that the continuing custody order made by Judge Mrozinski was consented to by both DS and JD pursuant to

section 60 of the CFCSA.

Section 60 states: 60

(1) With the written consent of the following, the court may, at any time after a presentation hearing, make any custody or supervision order that is provided for in this Part, other than a transfer of custody under

section 54.1, but including an order transferring custody of a child under

section 54.01 (5) and a continuing custody order: (

a) the director; (

b) the child, if 12 years of age or over; (

c) each parent of the child; (

d) if the child is to be placed for a specified period in the custody of a person other than a director, that person; (d.1) any person who has been made a party under section 39 (4); (

e) if the child is an aboriginal child, the person who is or would have been entitled under section 38 (1) (c), (c.1), (c.2) or (

d) to notice of any protection hearing concerning the child.

(1.1) Despite subsection (1), if a child is in the care of a person other than the child's parent under an agreement made under

section 8, the court may, with the written consent of the persons referred to in subsection (1) of this section, make an order under

section 54.01 (5) transferring custody of the child to the person other than the child's parent.

(2) Despite any other provision of this Act, the court may make an order under this

section without a hearing, the completion of a hearing or the giving of evidence, but it must be satisfied that each person whose consent is required, other than those mentioned in subsection (1) (

a) and (e) (

a) has been advised to consult with independent legal counsel before signing the consent, (

b) understands the nature and consequences of the consent, and (

c) has given voluntary consent to the order sought.

(3) The court may dispense with any consent required under subsections (1) and (6), if the court considers it in the child's best interests to do so.

(4) An order may be made under this

section without the court finding that the child needs protection.

(5) A consent by a parent to an order under this

section is not an admission by the parent of any grounds alleged by a director for removing the child.

(6) In addition to its powers under subsection (1) and subject to subsection (7), the court may, with the written consent of the parties, make any other order mentioned in this Act, including a transfer of custody under

section 54.1.

(7) An order under subsection (6) to transfer custody under

section 54.1 must not be made unless (

a) the continuing custody order was made by consent, (

b) the time limit under section 81 (2) in relation to the continuing custody order has expired and no extension under section 81 (8) has been granted, or (

c) all appeals related to the continuing custody order have been heard and the continuing custody order has been upheld. [ 13 ] Because E’s parents consented to the making of the continuing custody order, Judge Mrozinski did not make any finding that E was in need of protection, nor did she make any findings of fact of what the circumstances were at the time she granted the continuing custody order. [ 14 ] Similar circumstances were present in A.S. v. British Columbia (Director of Child, Family and Community Services) [2002] B.C.J. No. 996 , where Burnyeat J. stated at paragraphs 15 and 16:

That obviously will not be the case where the Director takes action and a parent later consents to the Continuing Custody Order. Even when there is a situation where there may be no need to find that a child is in need of protection and where s. 60 consent is given, there are obviously circumstances which have given rise to the child being taken into the care of the Director. These circumstances are set out in the Report to the Court.

While there may be a practical problem in determining what facts were present at the time of the Continuing Custody Order against which there is to be a determination of whether there has been a significant change, that practical problem should not undermine the ability of a parent to make such an application.

In dealing with custody and access matters, the Court is often called upon to determine whether there has been a “material change in circumstances affecting the child” or, in the case of this Act, a determination of whether the circumstances that caused the Court to make the Order “have changed significantly”. Those determinations can be made even though the clearest of records are not available as to the circumstances which justified the Continuing Custody Orders being made in the first place. [ 15 ] The transcript of the proceedings on October 11, 2012, discloses that the Director, represented by Mr.

Humphries, provided a book of documents which was entered as an exhibit. That book of documents was entered into these proceedings as Exhibit 5.

Those documents are: the Presentation Form and Report to Court; the Plan of Care; four Strengths and Needs Assessments completed a various times between October 17, 2011 and July 7, 2012; four Family Plans completed between November 2011 and July 2012; two Reunification Assessments completed in February and July 2012; two Vulnerability Assessments completed in October 2011 and January 2012; progress reports from the family support worker program; reports from the FAIR,( the Trail Family and Individual Resource Centre), describing the supervised visits JD and DS had with E; and a letter from the Lower Columbia First Nations describing JD’s contact with their mental health and addictions support group. [ 16 ] I will first address the importance of continuity of care for E, and thereafter the effect upon her of maintaining relationships she has with any person.

Continuity of Care [ 17 ] E was placed in the care of Mr. and Mrs. H from 12 days old until she was approximately two and a half in a foster to adopt situation. For all intents and purposes, she regarded the H’s as her parents and the H’s acted in that capacity. Although there were other caregivers (Mrs.H’s stepmother and father) from time to time, E’s primary caregiver was Mrs. H who remained in the home to care for her. Mr. H worked outside the home, and for the first part of the placement, worked shift work.

Consequently, his relationship with E was that of a traditional father who sees their child on their days off and after work. [ 18 ] When E was moved into a new foster home on May 12, 2014, the H’s initially had two visits a week in the new foster home. The H’s then filed an application in Provincial Court for access to E, and their Petition in the Supreme Court. The Director retained Evelyn Wotherspoon, an expert in clinical social work and early childhood mental health and development, to provide suggestions as to what access would be in E’s best interest.

On June 12, 2014, the parties consented to an Order that the H’s were to have two hour visits with E, 7 days a week until their Petition was heard. Four of the visits per week took place in Ms. G’s (the new foster parent) home, and the remaining two hours visits on Mondays, Wednesdays and Fridays occurred in a public place in the community. When the H’s withdrew their Petition in December 2014, their visits were moved to FAIR every second day from 2:45 p.m. to 4:45 p.m. The H’s occasionally did not show up for these visits. Some visits Mrs. H attended with her parents. Mr.

H missed a number of visits because of his work schedule. Mrs. H missed a number of visits in January as she was in the hospital. During the visits which did occur, the H’s provided care for E. [ 19 ] FAIR brought some concerns about the H’s visits to the Director’s attention in January; thereafter the H’s visits were supervised. While they continued to see E, there was another caregiver in the room at all times. [ 20 ] In early 2015 Ms. Wotherspoon reassessed E and the access schedule. She suggested that the H’s supervised visits be reduced to two days a week, due to E’s ongoing stress and anxiety.

That has been the current access

schedule for the H’s since February 2015. [ 21 ] DS had two visits with E in 2012 and has not provided any care for her. He has no relationship with her. [ 22 ] JD had weekly visits with E from November 2011 until April 2012. After that she moved from the Trail area and has had sporadic visits with her since. Since inception, all of JD’s visits have been supervised. She has never been responsible for E’s care. [ 23 ] KR, JD’s mother, and E’s grandmother, has met E once. She has never cared for her, and does not have a relationship with her. [ 24 ] E was placed in a new foster home with Bev G on May 12, 2014. Ms.

G has been E’s primary caregiver since then, a period of approximately 14 months at this point. [ 25 ] E started attending preschool and day-care once she was in Ms. G’s care. She attends preschool Monday to Friday, from 8:30 to 11:30; and day-care following that, Monday to Thursday until 2:30. [ 26 ] In

summary, E has had two main caregivers, Mrs. H and Ms. G. The continuity of her care by Mrs. H was terminated approximately 14 months ago. [ 27 ] The Director’s plan for E is that she will be adopted by a First Nations family who presently live in the Vancouver area. They will become her primary caregivers. The continuity of E’s care will be disrupted again. Ms.

G testified that if this happens, she will work with the adoptive family to transition E to their care, gradually over a period of time The effect of maintaining relationships E has with various individuals [ 28 ] E has a relationship with her former caregivers Mr. and Mrs. H; Mrs. H’s parents, and her present caregiver Ms. G. To a lesser extent she has relationships with the adults at her preschool and day-care, the other children who live in Ms. G’s home, or who visit frequently.

[ 29 ] Evelyn Wotherspoon provided extensive opinion evidence regarding E. Counsel for JD and Mr. and Mrs. H take issue with Ms. Wotherspoon’s opinions, although they did not contest her expertise. Counsel submitted that Ms. Wotherspoon’s “mandate” and opinions about E’s best interests were improperly restricted by the Director when Ms. Lien, Community Service Manager for the Kootenays, instructed her not to consider whether a return to the H’s would be in E’s best interest. Counsel argued that the “tone” in Ms.

Wotherspoon’s reports changed and as such, she can no longer be considered an impartial expert and her reports and evidence should be given little weight. They rely on the decision of British Columbia (Director of Child, Family and Community Service v. L.S.N. [2008] B.C.J. No. 2627 (BCPC) as authority for the proposition that when an expert report is founded on faulty premises or prepared in an unbalanced way, it is to be given little weight. In that case, the expert gave opinion evidence on whether it would be in child’s best interest to be returned to her biological mother.

The expert formed the opinion without seeing the biological mother with the child, or observing the child with her siblings in the presence of her mother. The expert had already formed her opinion before she met the mother, the siblings or seeing the family home. [ 30 ] That is far from the case here. Ms. Wotherspoon is well qualified to give the opinions that she did. She has extensive professional experience as a clinician, and has published frequently on the areas in which she expressed opinions.

Not only did she observe E with the H’s, but she also reviewed file notes of social workers, she interviewed E’s caregivers (including the H’s), she had the caregivers complete questionnaires and she reviewed sections of her report with each party to ensure that she had accurately reflected their perspective. She observed E at her current foster home, and her preschool programme. She interviewed social workers and individuals who supervised E’s visits. [ 31 ] Ms. Wotherspoon testified and was cross examined at length. She was a careful witness whose evidence was considered and consistent.

I find no indication of bias, as alleged by counsel for JD and the H’s. I accept Ms. Wotherspoon’s evidence. [ 32 ] E’s visits with JD have been infrequent and sporadic. Evelyn Wotherspoon made this observation in her February 9, 2015 report. ( Exhibit 21) “I am unclear why E has intermittent visits with her biological mother.

The contact with her biological mother is not frequent enough for E to form a meaningful relationship with her and it appears these visits have been upsetting and confusing to E.” [ 33 ] This is consistent with the observations Christine Forbes at FAIR made during her supervision of visits between JD and E. She described JD’s interactions with E as more of a “playmate” than parent. I conclude that at this point E does not have a meaningful relationship with JD. [ 34 ] The H’s argue that E is attached to them as primary caregivers, and as such, this relationship is vital to E’s well-being. [ 35 ] Ms.

Wotherspoon spent a considerable time with E during her assessment of her mental health, and in an effort to devise a plan which would cause E the least stress and anxiety when she was moved from the H’s care. [ 36 ] She observed E and Ms. G together on three occasions over three days and E with the H’s before, during and after a visit. [ 37 ] In June 2014 Ms. Wotherspoon observed that E was very distressed and confused as to why she was separated from the H’s. She observed that: “E seeks proximity with her former caregivers during visits, indicating she has formed an attachment to them.

This does not preclude the possibility that she may have been exposed to inconsistent or unreliable caregiving, as Ministry of Child and Family Development has asserted. E is at a sensitive age for attachment formation, and so she will react more strongly to separations than she would at a different age. There is a greater urgency for permanency for young children because of the role of attachments in regulating stress and supporting healthy development.” (Exhibit 20, page 4). [ 38 ] Mrs. G confirmed that the first two and a half weeks that E was in her care, she was very distressed and distraught.

That distress continued whenever she knew her visits with the H’s were coming to a close. [ 39 ] E was forming a relationship with Mrs. G at this time, and Ms. Wotherspoon observed that she sought Mrs. G out for reassurance and comfort. When Mr. and Mrs. H were present, E turned her attention entirely towards maintaining proximity with them. [ 40 ] When Ms. Wotherspoon reassessed the situation in February, 2015, she was specifically asked by the Director to determine to whom E was primarily attached. She concluded that E’s primary attachment was with Ms.

G at that point: “E has formed a focused attachment with her foster mother and is able to use her foster mother to regulate her emotions, especially her distress. She continues to have affectionate ties with Mrs. H, and I assume, Mr.H”(Exhibit 21, page 7). [ 41 ] Mrs. Wotherspoon also noted that: “Apparently E does not cry or pine for the H’s the way she did when I observed her last June but she still fusses at leave taking with the H’s. Her distress will escalate dramatically if Ms. G or a visit supervisor does not step in to distract and soothe her. The visit observers and foster mother noted that Mrs.

H also becomes upset at leave taking and tends to escalate E’s outbursts. The distress at leave taking apparently improved for a while and then noticeably deteriorated around December, 2014. Ms. G said that E is not usually bothered by missed visits (with the H’s). She said that E missed three visits in a row when Mrs. H was hospitalized, with no sign of distress.”(Exhibit 21, page 4). [ 42 ] Ms. Wotherspoon noted that she observed that E was cheerful when the visit ended with Mrs. H and Ms. G reported E was fine

when she returned to her home. [ 43 ] I find that although E still has a relationship with the H’s, they are no longer her primary attachment. Ms. G is. I conclude that the effect of terminating the H’s relationship with E would no doubt cause some distress, but not as significant as E’s distress regarding a change in her relationship with Ms. G. Ms. G testified that she has experience transitioning approximately twelve children from her home to a permanent adoptive placement.

She explained the process she would use to assist E to make the change to a new home, and into a new relationship with adoptive parents. [ 44 ] I conclude that while E has a primary attachment to Ms. G at this point, she can be assisted to form another primary attachment to a new adoptive family if she is given sufficient support and professional assistance. [ 45 ] I turn now to an assessment of whether there has been a significant change of circumstances since the continuing custody order was made.

Circumstances leading up to the removal of E from JD [ 46 ] I make the following findings of fact. [ 47 ] E was removed a day after she was born, while still at the hospital. Meg Meredith was the social worker at this point. E’s parents, JD and DS, had an extensive history with the Ministry of Child and Family Development (MCFD). Their first child A was removed when she was one, in 2007 as she was not meeting developmental milestones. Their second child J was removed at birth in 2008. [ 48 ] A parental capacity assessment of JD was completed in 2008 by psychologist Sara Collison. Ms.

Collison noted that JD suffered from both anxiety and depression; she had lost contact with her Band, the Heiltsuk Nation, and most of her family except her mother. JD’s overall cognitive abilities were noted to be in the low average range, and her verbal comprehension and reasoning abilities in the borderline range. [ 49 ] JD began using marijuana at age 9, but also misused alcohol, cocaine and other street drugs throughout her adult life. [ 50 ] Ms.

Collision provided a list of recommendations for JD and DS to improve their parenting, but she ultimately recommended that the care of their children should be with “more responsible caregivers for the foreseeable future”. [ 51 ] The recommendations specific to JD were that she required further assessment and treatment of possible post-partum depression and chronic low mood, including taking anti-depressants; she was to reconnect with her Band and native heritage in ways that were acceptable to her; she was to pursue counselling, and improve her self-care and her stress management so that she was less reliant on marijuana.

She needed to acquire basic job training and job skills and/or complete school and improve her confidence so that she could be able to learn new parenting information. As a couple, JD and DS were to continue to take parenting courses, with an emphasis on visual learning for JD, focussing on learning developmental stages of children, needs of children, and other parenting requirements such as limit setting. It was recommended that they establish financial stability, with some budget and financial counselling and that they take couples counselling.

They were encouraged to maintain their own residence, with minimally acceptable levels of cleanliness [ 52 ] After a lengthy court process, JD and DS consented to a Family Relations Act order, granting custody of both girls to their paternal aunt and uncle on March 2, 2011. [ 53 ] At the time of E’s birth in October 2011, JD and DS had been separated for some time, but got back together at least once after E’s birth. They had a violent and dysfunctional relationship. [ 54 ] Most of the recommendations made by Ms.

Collision had not been addressed by JD at the time of E’s birth. [ 55 ] On July 26, 2011, JD met with a social worker, and wanted to know what “it would take to keep her baby”. JD was referred to FAIR while still pregnant with E with the goal of increasing her parenting capacity, and to assist her to maintain a safe and clean home. [ 56 ] JD attended two sessions of Building Beautiful Babies, but was reported to not engage effectively with the programme.

She showed little insight into why her first two children were removed. [ 57 ] Immediately after E’s birth, JD’s home was noted to be very dirty, with a strong odour of urine, faeces, and cat litter. The home had a sewage leak in it, which was not repaired. [ 58 ] JD’s capacity to parent E, her ongoing substance abuse, her own history of sexual, physical and emotional abuse as a child, and a lack of insight into her own mental health were considered to be risk factors by the Director and a decision was made to remove E as soon as she was born.

Circumstances after removal of E up to the granting of the Continuing Custody Order [ 59 ] I make the following findings of fact. [ 60 ] A family support worker with FAIR continued to work with JD after the removal of E. An additional role was to supervise JD’s access visits with E. Initially JD had two visits each week with E from November 2011 until April 17, 2012. She missed three visits during this time without explanation. The family service worker reported that JD was very engaged with E during the visits and needed little prompting.

The visits were to be followed by a half hour session in parenting education. JD frequently cancelled the parenting sessions, and only attended four. She completed a four week parenting course from January 16 to February 20, 2012. [ 61 ] On December 16, 2011, JD and DS attended a case conference in Rossland with the Honourable Judge Fabbro. JD was represented by her counsel, Janet Connelly. Both JD and DS continued to contest the Director’s application for a continuing custody

order, and the matter was set for a four day hearing. [ 62 ] In April 2012 JD and DS reunited briefly. Soon after, JD was evicted and moved into a transition home because DS assaulted her. She was no longer seeing her older daughters because their caregiver had moved to Alberta. She was not working and relied on social assistance. She continued to use drugs and alcohol. She decided to move to Vancouver to live with her mother. [ 63 ] JD returned to Trail on July 11, 2012, and had a visit with E.

During that visit she told the family support worker that she thought she might move to Chilliwack to be with a new boyfriend. She then left to work in Penticton for a week, however had not returned to Trail by September 10, 2012. She had secured a job with West Coast Amusements. [ 64 ] In the family support worker’s letter of September 10, 2012 (exhibit I to the affidavit of Ria Anderson, Exhibit 4), she stated: “During the time I have worked with JD, she has not addressed her personal relationship issues or her drug and alcohol issues.

We would start to make progress with parenting education but then she would not make appointments. JD has expressed two different plans for E that she has asked MCFD to explore. One involved her family in Kitimat. JD eventually changed her mind about E going to her FN band in Kitimat. The second plan involved a cousin that lives in Prince George. It is my understanding that MCFD is looking into this option.” [ 65 ] JD had sporadic contact with her Family Service Worker, social worker Sheri Pawlyshyn. Ms.

Pawlyshyn had conduct of E’s file from April 2012 to December 2012. [ 66 ] One of the issues in dispute in this hearing was the nature of the relationship between JD and the H’s at the time the continuing custody order was made. [ 67 ] In her examination in chief, JD testified that she attended regular supervised access visits with E after removal. She didn’t meet Mrs. H, who dropped off E for the visits, as she stayed inside while the supervisor went out and retrieved E. She testified that slowly over time, she would run into Mrs. H in the grocery store or downtown during walks and Mrs.

H would tell her how E was doing. JD testified that at first she was quite awkward around Mrs. H as she felt Mrs. H was taking E away from her, but then she saw how attached E was to Mr. and Mrs H and was happy that E was safe and content. JD testified that she told Mrs. H that she wasn’t able to care for E at that moment because she had a drug problem, and asked Mrs. H if she was willing to adopt E. [ 68 ] In cross examination JD was asked about the arrangement in which Mrs. H would drop off E at FAIR about 15 minutes before any visit to avoid any contact.

JD was “not too sure” about that suggestion, but also responded that “at the time, that is how it was”. She added that she only stayed inside FAIR at the beginning, and did go to the car to say hello to Mrs. H when she dropped E off. [ 69 ] In her affidavit (Exhibit 2) JD stated, “shortly after E was born, I was introduced to DH. DH was interested in adopting a child. DH and I got along very well and met a number of times subsequent to the initial introduction”. [ 70 ] Exhibit 1 is an affidavit filed by Mrs. H on November 14, 2014. At paragraphs 12 and 34 she stated: 12.

As E approached her first birthday, we got to know her birth mother, JD, quite well, and developed a good relationship with her. 34. During the period when E was in our care and custody, we were approved by the Ministry to supervise visits between E and her birth mother. The contact between E and her birth mother JD is an important part of E’s life. [ 71 ] In examination in chief, Mrs. H testified that she met JD two weeks after E was placed with her. This would have been in early November 2011. She testified that for the first couple of months she would simply say hello when she dropped off E at FAIR. Mrs.

H agreed that she had sworn an affidavit for the Supreme Court proceedings in which she stated that she met JD at the hospital shortly after E was born. She described this statement in her affidavit as a “mistake”. [ 72 ] Mrs. H testified that it was the Director that wanted to ensure there was no contact between Mr. and Mrs. H and E’s birth parents because of safety concerns regarding DS and his violent behaviour. She denied she had any concerns regarding contact with JD. Mrs.

H testified that one of the first times she brought E for a visit with JD, the supervisor did not show up and she sat with JD and chatted so that JD could have a visit with E. Mrs. H testified that while she expressed a minor concern regarding JD, it had completely dissipated once she met her. She added that after JD moved to Vancouver, she returned to Trail at least a few times a year. She testified that social worker Lisa Machek passed on a request from JD that Mr. and Mrs. H supervise her visits with E, and they agreed. After that, the H’s spent a lot more time with JD, according to Mrs.

H, and frequently communicated when JD was not in town. [ 73 ] The Director’s evidence somewhat contradicted JD and Mrs. H’s evidence on this point. [ 74 ] It is clear that Mr. and Mrs. H met with social workers Meg Meredith and Janice Issac on October 12, 2011, before E was placed with them. In an email written after the meeting (Exhibit D to the affidavit of Shannon Thask, Exhibit 7) Ms. Issac describes speaking to the H’s about safety issues regarding E’s birth family on October 12, 2011. [ 75 ] Ms.

Pawlyshyn testified that she took over JD’s file in April 2012, as the previous worker was transferred to another office. She met with the previous social worker to be briefed on the file. She learned that Mr. and Mrs. H asked that the drop off and pick up of E for access by her birth parents be arranged in a manner that the H’s would have no contact with them. Consequently, the Director arranged that E was dropped off at FAIR fifteen minutes early and picked up by Mrs. H fifteen minutes after the visits. Ms. Pawlyshyn was told that Mrs. H was upset on one occasion when JD approached her car at a drop off. Ms.

Pawlyshyn noted in her affidavit filed in the Supreme Court that before the continuing custody order was granted, Mr. and Mrs. H wanted very little to do with JD.

[ 76 ] Ms. Pawlyshyn had many conversations with Mr. and Mrs. H while she had conduct of the file with respect to E’s contact with her birth mother. They routinely expressed fears of running into JD in Trail and were worried that she would try and approach them. Ms. Pawlyshyn testified that during the time she had conduct of JD's file, she and other social workers tried to meet monthly with the H’s. During the meetings, Mr. and Mrs. H made it clear they did not want to have contact with JD. The social workers tried to encourage the H’s to consider an openness agreement with JD and the H’s would not. Ms.

Pawlyshyn also noted that JD left Trail in May 2012 and did not return for months. During the spring of 2012, JD was homeless and very difficult to contact. As the continuing custody hearing approached, Ms. Pawlyshyn tried to encourage the H’s to start email contact with JD and perhaps send her some photos of E. It was her evidence that the H’s were resistant to those suggestions. She was aware of two times in which Mrs.

H ran into JD - once in the Ministry office, and the second time in a grocery store. [ 77 ] The notes from the FAIR supervisors (Exhibit 5, tab 8) document JD’s supervised visits from November 1, 2011 to December 1, 2011; seven visits in April 2012, two visits in May and one visit in July 2012. The notes for the visits in November and December 2011 indicate that JD often arrived late for the visits and E was already present. Those notes also indicate that a supervisor was present for all visits during November and December 2011 and make no mention of JD interacting with Mrs.

H. [ 78 ] I also note that JD and DS attended a case conference in December 2011 and made it clear that they were seeking E’s return to their care. I find it unlikely that JD would have sought out Mrs. H during this time and discussed adoption with her. [ 79 ] There are no notes of the January to April visits. However, Ms. Forbes testified about the time she supervised JD’s visits with E, which lead up to the date the continuing custody order was granted. Ms. Forbes testified that she had been told that Mr. and Mrs.

H did not want to have contact with JD or DS and consequently FAIR made special plans that E would be dropped off fifteen minutes ahead of time and Mrs. H would be called on her cell phone after JD had left, so there would be no contact with JD. The FAIR supervisors went to the car to collect E. [ 80 ] The supervision notes indicate that in April JD did arrive early two times and accompanied the supervisor to the car to collect E. Ms. Forbes testified that there was some interaction between JD and Mrs. H in the fall of 2012, when JD accompanied E to the car and said hello. [ 81 ] Ms.

Forbes also indicated that leading up to the continuing custody order, JD discussed her wishes that E be placed with a relative in Prince George. [ 82 ] The social workers’ running records document a meeting the H’s attended with various social workers on September 21, 2012. During the meeting, it was noted that JD’s whereabouts were unknown and her lawyer had lost contact with her. There was some information that JD may return to Trail the following week for E’s first birthday.

A suggestion was made at the meeting that the social workers wanted to introduce JD to the H’s if JD did return to town. [ 83 ] The running records contained at Exhibit 7 (exhibit

S) indicate that as late as March 26, 2013, Mrs. H was concerned about JD learning her complete first name. JD still did not know the H’s surname. It appears that more contact between Mrs. H and JD began in March 2013, and I am satisfied that Mrs. H began supervising visits between JD and E at that point, five months after the continuing custody order was granted. [ 84 ] I find that Mrs. H and JD’s evidence on when they established any sort of relationship to be contradictory and inconsistent.

I find that there was some brief contact between them, in the presence of a supervisor, during drop off and pickups at access visits between November 2011 and April 2012. There was one brief interaction between Mrs. H and JD when a supervisor did not show up. After that, JD was absent from Trail for months at a time and only visited sporadically. JD’s evidence on this issue is not consistent and I give it little weight. I do not accept Mrs. H’s evidence that as E approached her first birthday, she got to know JD quite well and developed a good relationship with her. While JD and Mrs.

H had met and conversed prior to the continuing custody order, I find as a fact that the H’s and JD did not really commence any sort of meaningful relationship until March or April 2013, well after the continuing custody order was made. [ 85 ] JD asserts that an important circumstance at the time the continuing custody order was made was her consent to the Order, and that consent was predicated on the H’s adopting E. [ 86 ] JD’s testified that after she got to know Mrs. H, she saw how attached E was to her, and she told Mrs. H that she was pleased that the H’s were going to adopt E.

It was her recollection that she told her lawyer that she would consent to the continuing custody order if E was to stay with the H’s. She could not recall any discussion with any social workers about this issue. In her affidavit (Exhibit 2) JD stated: “Once I had established a good relationship with the H’s, I told them I would consent to their adoption of E. Also, Social Worker Meg Meredith assured me that E would stay with the H’s and that she would not be removed from their care.

Social Worker Meg Meredith also told me that a Continuing Custody Order was merely a formality that would make the adoption process happen more quickly and easier. On the basis of these interactions and assurances, I agreed to consent to the Ministry of Children and Family Development having a Continuing Custody Order with regards to E. I discussed the matter with Lisa Machek and other social workers.” [ 87 ] JD had four social workers, working in the role of a Family Services Worker during the relevant times.

Family Service Workers are responsible for monitoring and documenting possible reunification of parents and their children and ongoing court work with respect to any applications for continuing custody orders. If the same social worker is also doing child protection work, they assess child protection risks, develop a plan of care, make referrals for services, monitor access to children in care, attend meetings with other

social workers involved in the file and attend court. Lisa Machek was JD’s Family Service worker from February to March 2011. During that time JD became pregnant with E. [ 88 ] Meg Meredith was the Family Service worker after Lisa Machek, and removed E from JD at birth and appeared to work on the file until January 2012 when Jeremy Marczak became the next Family Service worker for about three months. Ms. Pawlyshyn had conduct of the file from approximately March 2012 until shortly after the continuing custody order was made in November 2012.

Lisa Machek resumed conduct of the file in January 2013 for a period of time. Spencer Patterson was the next social worker assigned, and Jennifer Ellis has had conduct of the file since July, 2014. [ 89 ] Given this, I find it extremely unlikely that Meg Meredith assured JD that E would stay with the H’s, given that E had only been in their care for two and a half months at the time Ms. Meredith transferred the file to Jeremy Marczak. As well, given my findings above, JD had almost no relationship with the H’s in November, December 2011 and in January 2012, such that she would have wanted the H’s to care for E.

She was still planning on contesting the application for a continuing custody order in January 2012 and had counsel, Janet Connelly representing her. JD’s assertion that she discussed the matter with Lisa Machek is equally implausible. Ms. Machek transferred the file well before the birth of E, and did not regain it until January 2013, two months after the continuing custody order was granted. [ 90 ] Mrs. H’s testimony during cross examination was that she had no information from JD that she was agreeable with the H’s adopting E before the continuing custody order.

In fact, it was not until a few months after the continuing custody order was made, did she and JD discuss the adoption of E. [ 91 ] It was Mrs. H’s testimony that Ms. Pawlyshyn phoned her and told her that JD appeared at the continuing custody hearing and stated that she consented to it, so long as the H’s adopted E. [ 92 ] Ms. Pawlyshyn strongly disagreed with both JD’s and Mrs. H’s evidence on this point.

I accept that she was the social worker who would have had discussions with JD and the H’s during the relevant times regarding the application for a continuing custody order. [ 93 ] I accept that JD contacted Ms. Pawlyshyn in July 2012 regarding JD’s extended family’s interest in fostering and adopting E, and specifically mentioned her cousin in Prince George. This person began the interview and home study process, but was not approved to proceed. According to Ms. Pawlyshyn, once JD learned of this in August, she then proposed that her aunt take over care of E. I accept this evidence. Meanwhile Ms.

Pawlyshyn learned that a second aunt was also interested. [ 94 ] In September 2012 Ms. Pawlyshyn attended a meeting with the adoption social worker Shannon Thask, the resource social worker Greg Kormay and the H’s. At that meeting a discussion took place regarding exploring the extended birth family as a permanency option for E, and arranging a meeting for JD to see E for her birthday. According to Ms. Pawlyshyn, JD did not know that the H’s were fostering to adopt at that point. On October 9, 2012, JD met with Ms. Pawlyshyn to discuss her current living situation and E’s file and progress. According to Ms.

Pawlyshyn, JD recognized that she was unable to care for E in her current situation. She was still hopeful that her family would be approved as a permanent placement for E. In that meeting JD signed her consent to the continuing custody order. [ 95 ] Two days later, the continuing custody order was made by consent on October 11, 2012, by the Honourable Judge Mrozinski. JD was represented by Ms. Connelly. [ 96 ] The transcript of the hearing on October 11, 2012, reveals the following regarding permanency plans for E.

Counsel for the Director indicated that that E could stay in the placement she was in, as it was a foster to adopt situation. He also noted that the social worker (Ms. Pawlyshyn) advised there were possibilities of adoption with relatives, and the subject had not been canvassed fully. Ms. Connelly indicated that JD hoped that E would be in a home with aboriginal heritage. In response to a query from Judge Mrozinski about whether there was a plan for contact between JD and E between October 11 and the adoption, Director’s counsel responded yes there was. Ms.

Connelly stated that she discussed that issue with the social worker as well as JD. Ms. Connelly stated that the “foster mother happens to be herself adopted and is very much open to an openness arrangement with JD and that there was an expectation that that was a possibility.” [ 97 ] Counsel for JD argues that this comment supports JD’s assertion that she and the H’s had a relationship, and had discussed an open adoption prior the hearing, and JD’s consent to the continuing custody order was based on the H’s adopting. Given my findings above, and in particular Mrs.

H’s evidence that there was no discussion with JD until a month or two after the continuing custody hearing about adoption, I cannot agree. In my view it is just as likely that Ms. Connelly was referring to a discussion she had with Ms. Pawlyshyn concerning her discussion with the H’s about their willingness to enter into an openness agreement. Further, Ms. Connelly went on to state that there was no commitment or guarantee at that point with respect to an openness agreement. Ms.

Connelly went on to tell Judge Mrozinski three relatives were also being looked at as possible homes for E, and in total, there were four possible homes for E. I note that JD was in court while Ms. Connelly made these submissions. [ 98 ] Consequently I do not accept JD’s evidence that the reason she consented to the continuing custody order was because she was assured that E would be adopted by the H’s. Further I do not accept Mrs. H’s evidence that Ms.

Pawlyshyn phoned her on the day of the continuing custody hearing and told her that JD had told social workers and her lawyer that she was content with the care E was receiving and she would agree with the continuing custody order provided the H’s were the ones to adopt E. This is inconsistent with the contents of the transcript and at odds with the fact that JD had actually signed the consent two days earlier, in Ms. Pawlyshyn’ s office. [ 99 ] I do accept that at the time of the continuing custody order, E had been in the care of the H’s for a year. [ 100 ] I accept Ms.

Pawlyshyn’ s evidence that at the time the continuing custody order was made, she continued to have a number of concerns regarding JD and her capacity to parent E. JD had suffered significant trauma as a child and young adult - neglect and sexual, physical and emotional abuse. Her lifestyle and continued use of drugs and alcohol, and her involvement in violent relationships were all coping strategies JD developed to deal with that past trauma. She had made no discernible progress through counselling to deal with her childhood abuse.

JD’s limited cognitive capacity greatly hindered her ability to understand the choices she made regarding intimate

partners, particularly DS. Ms. Pawlyshyn testified that JD has a very dependent personality, and feared that she would enter another abusive relationship with a new partner. [ 101 ] JD’s limited intellectual capacity affected her ability to learn parenting skills and put them into practice. At the time the continuing custody order was made, JD had not attended counselling, nor attended sufficient parenting classes and learned parenting skills so that her capacity to parent E had improved. JD told Ms. Pawlyshyn that her drug and alcohol use was “up and down”. She was homeless.

She told Ms .Pawlyshyn that she had two different boyfriends, and at one point she advised that she was engaged. A number of JD’s circle of friends in Trail also were involved with child protection services, including a woman JD stayed with when she came to Trail. [ 102 ] Ms. Pawlyshyn completed a Strengths and Needs Assessment (Exhibit 5, tab

A) and a Family Plan (tab

B) three months before the continuing custody hearing. These documents were before Judge Mrozinski. [ 103 ] The Strengths and Needs Assessment document corroborates Ms. Pawlyshyn viva voce testimony. JD was noted to have the following challenges: “J has a long history of drug and alcohol abuse. She has not attended services as referred and continues to use. J does not describe a very healthy or positive connection with her family. She has recently been in touch with her mom who lives in Vancouver.

J hopes to move to Vancouver to be closer with her mom, but her mom will not help her get there (bus fare) or let her live with her. J does not have healthy relationships. She has been in a on and off relationship with DS (E’s father) for years. Throughout the duration of the relationship there have been violence and control issues. Most recently there was an assault between the two that required police intervention. Details are inconsistent but DS is facing charges. J has limited social connections and the connections she has are connected to MCFD and participate in the drug and alcohol scene.

J shows a lack of understanding into the needs of her child. She is appropriate at visits when providing physical care at the prompting of others. J has been seeing or has been referred to see a counsellor for most of her life. J faced serious abuse in her past and has not ever fully dealt with this. J is a survivor but does not show any skill based coping strategies or traits. She seems to rely heavily on others. J has no fixed address and her whereabouts are unknown. She left for Vancouver and has not been in touch with the SW.

J has a difficult time associating with her band due to her past while living on reserve. She made an attempt to connect with them as a way to support E, however when J didn’t get from them what she wanted, she refused to speak to them or have them involved any further. J is able to communicate with staff though her cognitive capacity is in question. She seems to struggle with comprehension and retention of information.” [ 104 ] In

summary, I find that the circumstances at the time the continuing custody order was made were that JD and DS consented to the Order; that JD’s circumstances were as described by Ms. Pawlyshyn and the documents in Exhibit 5; that E had been in the care of the H’s for one year; that an openness agreement with the H’s was a possibility if that placement was permanent; and in total, four different Aboriginal families were being explored as permanent placements for E. E is a member of the Heiltsuk First Nation.

Has there been a significant change in circumstances? [ 105 ] A significant change is one that has a reasonable prospect of altering the Court’s finding about whether the continuing custody order is in E’s best interests, after considering the factors in sections 49(5), 49(6) and

section 4 of the CFCSA , including the importance of continuity in the care of E and the effect of maintaining a relationship E has with any person: Re: N.P. [1997] B.C.J. No. 1648 . [ 106 ] One factor a judge can consider in determining whether there has been a significant change, is a “significant” change in the circumstances which induced a parent to consent to the continuing custody order initially : A.S. v. British Columbia (Director of Child, Family and Community Services), supra.

However the simple fact that a parent no longer consents to a continuing custody order is not in itself a “significant change”: British Columbia (Director of Families and Child Services) v. L.A. [2002] B.C.J. N. 1973. [ 107 ] A significant change can include a change in the caregiver arrangements for the child. In J.M. v. British Columbia (Director of Child, Family and Community Service) [2004] B.C.J. 2925 , paternal grandparents acted as restricted foster parents for the child and resigned during the

section 54 hearing because they could no longer control their granddaughter due to the Applicant mother’s negative influence. Walker, P.C.J. found this was a significant change, but refused to set aside the continuing custody order as it was not in the child’s best interests. [ 108 ] Other cases have determined that a significant change can include (along with many other factors in each case): an improvement in substance abuse issues coupled with an increase in stability; sobriety for three or four years; and cessation of contact with a third party who was a negative influence: M.R.L. v.

British Columbia (Director of Child, Family and Community Service [2011] B.C.J. No. 43 ; C.M.B. v. British Columbia (Director of Child, Family and Community Service) [2000] B.C.J. No. 1025 ; British Columbia (Director of Child, Family and Community Service) v. L.S.N. [2009] B.C.J. 2627 . [ 109 ] I have already determined that JD’s consent to the continuing custody order was not based on the H’s plan to adopt E.

JD’s desire to have continued contact with E after the continuing custody order could have also been achieved through placement with one of her relatives who was mentioned at the continuing custody hearing.

[ 110 ] I find that the termination of the H’s as foster parents is not a “significant” change in the circumstances which had induced JD to consent to the continuing custody order initially. What other changes are present? [ 111 ] JD testified in chief that she lives with her mother in Vancouver. She has a close relationship with her mother, and has one friend she relies on for support. She hasn’t had any alcohol for three or four months.

She continues to consume marijuana regularly to help with her anxiety and as a sleep aid. [ 112 ] This evidence is inconsistent with her affidavit (Exhibit 2) in which she stated at paragraph 34, “I almost completely stopped using marijuana”. [ 113 ] JD accesses medical assistance through a walk in clinic in Vancouver but does not see a doctor on a regular basis. JD testified that she deals with the stress associated with her past abuse by using marijuana, going for walks, doing housework and meditating. [ 114 ] She is no longer in a relationship with DS.

I cannot find that the termination of her relationship with DS is a significant change. The evidence is clear that at the time the continuing custody order was made, JD and DS had not been a relationship for some months. [ 115 ] JD plans to complete high school and then pursue a career in massage therapy or as a beautician.

JD expressed a wish that E could come home with her, but later stated in cross examination that the H‘s could give E, “what she could not”. [ 116 ] In cross examination, JD agreed that she tried counselling in Trail to deal with her anxiety and depression, but didn’t feel comfortable with any of the counsellors she saw, and hasn’t tried seeing a counsellor since she left Trail. She agreed that she continues to use marijuana, and has sought no professional help for her drug use. Although she “mostly stays with her mother”, JD does stay with friends from time to time.

She agreed she still finds it difficult to return to Kitimat and has not reconnected with her Aboriginal community. She does not get along with her sister, and whenever her sister stays with their mother, JD stays elsewhere. In December she worked for a week or two with her aunt in Kitimat in a janitorial business. [ 117 ] JD acknowledged that she has been told of a new family who have been approved to adopt E. This family is located in Vancouver and is Aboriginal.

She believed she had a conversation with Jennifer Ellis about the family and their willingness for an openness agreement, but could not recall any details of that conversation. [ 118 ] JD had a great deal of difficult testifying. She struggled frequently to remember past events, some of them quite recent. She appeared not to understand certain questions. She agreed that she signed a letter dated, May 22, 2014, (Exhibit 12) in which she expresses “outrage” at the Director’s decision to move E from the H’s. In cross examination she agreed that Mrs.

H brought the prepared letter to a meeting and asked her to sign it. JD was unable to answer many questions concerning the contents of the letter. She testified that Mrs. H said if she wanted E back, the letter was “the way to go”. [ 119 ] I place little weight on Exhibit 12 given JD’s testimony. I conclude it was written by Mrs. H and JD simply signed it without fully understanding its contents. [ 120 ] I have weighed JD’s testimony carefully, given her difficulties testifying, her poor recollection, and the inconsistencies in her evidence.

I find as a fact that she is now living a more stable and healthy lifestyle, and has reconnected with her mother. This is confirmed by the evidence provided by her mother, K.R. [ 121 ] JD no longer abuses alcohol but she does use marijuana daily if she can afford to buy it, according to her mother. She has had no assessments or ongoing counselling to deal with her use of drugs or her mental health, and is using marijuana to deal with stress and anxiety. She has taken no parenting classes since the continuing custody order was granted.

Although JD has travelled to Kitimat, she has not really reconnected with her Band and native heritage. Apart from a recent two week job, it appears JD has not worked or acquired any additional job training and or skills. In her affidavit (Exhibit 12) which was sworn on November 13, 2014, she stated, “I am currently looking for work”. There was no evidence concerning any efforts JD has made to find a permanent job. She has plans to complete school, but has not to date done so. She has not continued to take parenting courses, or increased her knowledge of parenting skills.

There is no evidence regarding her financial stability. [ 122 ] JD herself acknowledged that she believes the H’s can give E what she cannot. Mrs. H testified that if JD were to have access today with E, she would supervise that access. [ 123 ] JD is to be commended for the hard work she has done to improve her situation, in particular her efforts to stop abusing alcohol, the absence of an abusive intimate relationship, and her positive relationship with her mother, who has provided JD with stable housing.

However, there are significant risk factors which JD has not addressed: counselling for her mental health difficulties; meaningful substance abuse counselling and the establishment of some sort of financial stability. Most importantly she has not improved her parenting skills.

It may be that she will never be able to do that, given her cognitive difficulties. [ 124 ] I find that JD has not proven on the balance of probabilities that the changes which have occurred since the continuing custody order are so significant as to alter Judge Mrozinski’ s finding that the continuing custody order was in E’s best interests. Would the cancellation of the continuing custody order be in E’s best interests ? [ 125 ]

Section 4 of the CFCSA discusses the best interests of the child:

(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; (

f) the child's views; (

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. [ 126 ] If the continuing custody order is cancelled, E would be returned to JD’s care, and as E’s guardian, JD would have all parenting responsibilities. [ 127 ] As I have noted above, JD has not changed her circumstances so significantly that E would be safe from abuse, neglect and harm if in her care. JD has not acquired even minimal parenting skills at this point, and still has untreated mental health and drug issues.

She has no meaningful relationship with E. It would not be in E’s best interests to be returned to JD’s care. [ 128 ] JD has testified that if the continuing custody order is cancelled she will immediately consent to the H’s application for guardianship of E under the F.L.A. [ 129 ] The Director says that it is not in E’s best interests to have Mr. and Mrs. H as guardians or caregivers. The Director says that Mr. and Mrs. H did not ensure E received necessary professional services while in their care.

Specifically, it is alleged that the H’s did not ensure that E was assessed and treated by an audiologist; that she was not seen on a regular basis through the Infant Development Programme; that E did not receive necessary physiotherapy treatments; her dental health was neglected to the point some of E’s teeth became decayed and her immunizations were not kept up to date. [ 130 ] E will turn four in October. She is a member of the Heiltsuk First Nation, Raven Clan. She was born at full term, and was exposed in utero to marijuana, poor nutrition and maternal stress.

Because of this, she was deemed to a “high risk” baby, and received a routine hearing assessment at birth. The first assessment indicated some hearing impairment. She was also assessed as having some anomalies with her foot and is still being treated by a physiotherapist. E has significant dental decay in her front teeth, which requires ongoing monitoring and dental check-ups. She is to be assessed by an Ear Nose and Throat specialist because of enlarged adenoids and in all likelihood will need to have tubes put in her ears. [ 131 ] When Ms.

Wotherspoon spent time with E in January and February this year, she noted that E appears to be meeting most of her developmental milestones. Her fine motor skills are good. There is an area of concern regarding her gross motor skills because she has a 2 centimetre discrepancy in the length of her legs and has an inward turning foot. There are no concerns regarding E’s weight and height. She is extremely clingy with adults such that it prevents her from exploration and playing with her peers. She is a very light sleeper and needs adult comforting at night. Ms.

Wotherspoon watched E interact with other children at the preschool. She noted that E tended to drift from one activity to another, but did not really seem to be interested in anything except a painting activity. She didn’t laugh or smile. She was cooperative and polite. She appears to be adult oriented and reserved with other children. Ms. Wotherspoon also observed E during a visit with Mrs. H and while she was in Ms. G’s care. She accessed supervision notes and spoke to Ms. Forbes, the supervisor. [ 132 ] Ms.

Wotherspoon made the following comments regarding early child development at page 1 of Exhibit 21: “Before discussing the particulars of E’s situation, I would like to take a moment to review some basic information about early childhood social and emotional development that is especially pertinent to E’s situation and may offer some guidance for best interests considerations. Child development can be thought of as E’s job.

There are three critical tasks E must accomplish in these early years that will lay the foundation for all future development. 1) E must learn how to engage with others in emotionally close, meaningful relationships. This starts with a primary attachment figure and quickly expand to include other familiar and important people in E’s life. This includes siblings, teachers, peers, extended family and others. All these relationships play a role in healthy development. 2) E must learn to engage with the world around her through exploration and play activities.

Healthy brain development and important social skills are established through play. 3) E must learn to manage her emotions, focus her attention and regulate her behaviour in age-appropriate ways. These are called “executive function” skills and are critical to school success and successful social functioning. E can only do her job well if she has the opportunity to engage in increasingly complex joint activities with adults who have an emotional investment in her well-being.

In fact, the whole of child development is contingent upon consistent, reliable, nurturing relationships with adult caregivers who are sensitive to the child’s emerging capabilities and who are responsive to her changing needs. When relationships are neglectful, inconsistent, or unpredictable, children experience chronically high levels of stress. Specialists frequently refer to this as “toxic stress” because of the damaging effects on the developing brain. When impoverished caregivers (as has been

alleged in the case of the H’

s) is followed by a series of placement moves, (E is destined for her third placement move), it can alter the developmental trajectory in a negative direction that becomes increasingly difficult to correct the longer it continues.” (Exhibit 21, page 1). [ 133 ] Ms. Wotherspoon made the following observations: “Even though she appears to be getting nurturing care from her foster mother and has regular contact with the H’s, E is showing many symptoms of stress and anxiety.

Specific stress symptoms: chronic minor health problems; lack of interest in peers or play; unusual anxiety about caregiver separations; food and sleep problems; irritability and hypervigilance. In my view, the stress is affecting her health and is starting to hamper her social development. Right now, all of her energy is devoted to maintaining proximity to her primary attachment figure, which I believe to be her foster mother (Ms. G), leaving her with little energy for, or interest in peer play. E’s play skills are poor.

She shows fleeting interest in most toys and activities, both in the preschool, at the foster home and during the visit I observed. She needs support to stay with an interesting activity for a longer period of time. She is not yet showing any interest in pretend play. The H’s need some input regarding how to manage the visits so that they can support E’s development through play. At the foster home, Ms. G is quite capable of supporting exploration and play but E is often too anxious and preoccupied to play.” [ 134 ] Ms.

Wotherspoon made the following comments about the H’s interactions with E: “Affective communication - the H’s are warm and affectionate with E and are responsive to her. They appear interested and engaged with her during activities. The affect and mood is generally positive. They show empathy for her distress. However, they have difficulty with leave-taking and Mrs. H appears to elevate E’s distress.

Role Boundary Confusion - the H’s take delight in E but have difficulty with setting limits, giving E a predictable schedule, imposing some structure on the visits, or planning age appropriate activities.” (Exhibit 21, page 6) [ 135 ] Ms. Wotherspoon suggested that the H’s needed assistance with developing an agenda with the visits. She had already made this suggestion in June, 2014, but it appears that the H’s have not followed these earlier recommendations. Ms. Wotherspoon recommended that a therapist work with the H’s so that they could learn developmentally appropriate activities for E. Ms.

Wotherspoon suggested that the H’s avoid peppering E with questions, and stop asking open ended questions of E in terms of what she wanted to do. She noted that the H’s needed coaching on setting limits for E. [ 136 ] Ms. Wotherspoon concluded that E’s anxiety is going to interfere with her ability to transition to a new adoptive home and stressed it is imperative a decision is made about her future promptly. She observed that E is at a very high risk of school and peer difficulties and there is a small window of opportunity to help her develop the play and social skills that will be critical to school success.

She commented that E’s symptoms of anxiety and stress should be taken seriously: “The roots of lifelong anxiety disorders are laid down in these early years. E needs extraordinarily skilled parents and sensitive parenting to overcome the anxiety associated with her history. Minimally skilled parenting is no longer going to be adequate to meet E’s increasingly complex emotional needs. Her caregivers will need to work closely with professionals and must be willing to accept input and suggestions from them.” (emphasis added Exhibit 21, page 7).

Are the H’s “extraordinarily skilled” parents who are able to work closely with professionals? [ 137 ] Much of this hearing focussed on the H’s failure to have E seen regularly by health professionals. The H’s say that E is a healthy child and any missed professional appointments were inconsequential. Mrs. H testified that E was regularly seen by her doctor, Dr. Cynthia Neil, and there was no need to see an audiologist, or infant physiotherapist if Dr. Neil did not think it was necessary. [ 138 ] I find that the H’s fundamentally misunderstood their role as foster parents.

I accept Greg Kormay’s evidence that he met with the H’s in October 2011 and discussed what it meant to be a foster parent, and how they had to work jointly with social workers and E’s birth mother. I accept that he stressed that all decisions about E’s care had to be approved by the guardianship social workers. I accept that Mr. Kormay gave the H’s copies of “Safe Standards for Foster Homes”, “Foster Family Handbook” and “Safe Sleeping for Infants’, which clearly set out the obligations of foster parents.

The H’s signed a Family Home Agreement (Exhibit 8, page 149) with the Director, in which they agreed to provide caregiver services. [ 139 ] These documents are clear statements of the obligations the H’s had as foster parents. Some of the obligations were to keep in regular touch with the social workers assigned to the file; report any proposed new activity or change in E’s life; follow the Plan of Care; provide monthly reports; attend monthly meetings and ensure E had appropriate medical treatment if necessary.

Any medical care, routine or not, had to be authorized by a social worker. [ 140 ] The H’s had difficulty fulfilling some of the expectations placed on them as foster parents. At times they did not provide monthly reports. I find as a fact that E often slept in the same bed as Mrs. H, contrary to Ministry policy. The H’s changed E’s name. This was done, according to Mrs. H, at the instruction of Meg Meredith so that E would not be recognized in the community and be vulnerable to potential threats from her birth father. I do not accept this evidence.

First, I accept that it is against Ministry policy to change the name of any child in foster care. This can only be done after a continuing custody order has been made, and the child adopted. Second, Meg Meredith, as discussed above, was the removing social worker. While she was on the file, JD and DS were still intent on regaining custody of E. The suggestion that she would instruct the H’s to change E’s name when her future placement was uncertain, and knowing that both birth parents would have access to E is unbelievable.

I find that the H’s action in changing E’s name was indicative of their misapprehension of their role. Although they were in a foster to adopt situation, it is clear the H’s viewed the situation as if the adoption had already occurred. They did not appreciate that there was a possibility that E may not be in their care

permanently. From the beginning of E’s placement with them, they viewed themselves as E’s “parents” and not “foster parents”. As parents, they appeared to hold the view that they had the final say on what sort of medical services, assessments and contact with professionals that E required, not the social workers. [ 141 ] I have concluded that the H’s did not view regular, consistent contact with health care professionals to be necessary for E. I will provide some examples of their conduct which has lead me to this conclusion. [ 142 ] Like all infants, E required regular immunizations.

Those immunizations are administered by a Public Health nurse. In December 2011, the Public Health nurse informed Meg Meredith that E was not up to date on her immunizations, and they had been unsuccessful in contacting the H’s to have them bring E in. Ms. Meredith called Mrs. H to advise her of this, and Mrs. H took E in to have her immunization. The H’s later failed to ensure that E have her one year immunizations in October 2012.

On November 13, 2012, the Public Health team leader called Rhea Anderson, the social worker team leader, and indicated that she had tried unsuccessfully several times to contact the H’s to bring E in for her overdue one year immunization. Mrs. H had returned one message but no appointment was set. Ms. Anderson spoke to Mr. H, who was trying to get written permission to take E to the United States for the weekend. Ms. Anderson told him that the permission would not be forthcoming unless E’s inoculations were up to date. Mr.

H was not aware that E had not been seen as required by the Public Health nurse. [ 143 ] Mr. and Mrs. H noticed that E was bow legged and had an inward turning foot. A paediatric physiotherapist was engaged to work with E and assessed her on November 21, 2012. She provided a report (Exhibit 7, page 93) in which she recommended monitoring E’s feet and legs and wanted to see E again in two months. She left messages with the H’s to set up that follow up appointment on January 7, 2013, March 13, 2013, and July 24, 2013.

Susan Meyer, the aboriginal infant development worker recommended again in September 2013 that E is seen by the physiotherapist. It is unclear if the H’s followed up with that suggestion. [ 144 ] It was made clear to the H’s that E had to be seen regularly by the infant development worker and the audiologist. I accept that as a child at risk, E is vulnerable to developmental delays and it is vital that she is seen regularly by an expert in infant development. Julie Stockheusen was the assigned infant development worker. She saw E on October 28, 2011, shortly after she was born.

She was scheduled to see E two weeks later but that appointment was cancelled as the H’s had a family illness. Ms. Stockheusen left several messages with the H’s after that to reschedule. Mrs. H responded on November 28, a month after the first visit, but no new appointment with Ms. Stockheusen was set up. On December 22, Ms. Stockheusen sent the H’s an email, suggesting that they attend an infant massage program with E. Ms. H responded on January 11 that she was interested in coming but was not able to come that day. A week later she left a message saying she wasn’t attending because she was ill.

On January 18 the H’s attended an integrated case management meeting at the Ministry offices and Ms. Stockhausen was present. Consequently, at that time she able to set up an appointment to see E five days later. At that meeting, Ms Stockhausen recommended a program the H’s attend with E which would benefit her development. Although the H’s indicated interest, they never attended. Ms. Stockhausen next saw E on March 30, 2012, and then again on November 5, 2012. [ 145 ] Ms. Stockhausen prepared a report (Exhibit 7, page 22) on November 23, 2012, shortly after E turned one.

She indicated that the Infant Development Programme had only seen E five times in the year. This was far less than the 20 - 26 times Ms. Stockhausen thought necessary. During the year, Ms. Stockhausen attempted many times to make appointments with the H’s. Her view ultimately was that if the family was not responding, she wasn’t going to hound them, as she had a large number of families on her case list. [ 146 ] At the November 2012 meeting with the H’s Ms. Stockhausen noted that E was meeting her developmental milestones. Ms Stockhausen did provide the H’s with a note, outlini

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