Director v. M.D.C. and S.A.M. et al. Date:, 2012 BCPC 18

Citation: Director v. M.D.C. and S.A.M. et al.

Date: 20120111 2012 BCPC 0018 File No: 11735 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILDREN: AAC, born [DOB] CLM, born [DOB] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: MDC (Father) and SAM (Mother) PARENTS AND IN THE MATTER OF THE FAMILY RELATIONS ACT , RSBC 1996, C. 128 PP and RP (Paternal Grandparents) APPLICANTS AND: MA (Maternal Aunt) APPLICANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E.F. de WALLE Counsel for the Director: G.N.

Wynne Counsel for the Mother: I.F. McTavish Counsel for the Father: M.A. Newcombe Place of Hearing: Salmon Arm , B.C. Dates of Hearing: November 24, 2010; June 30, August 3, 4; October 5; November 14, 2011 Date of Judgment: January 11, 2012 THE APPLICATION

[ 1 ] The Director applies for a continuing custody order (CCO) under Section 49 (5) of the Child, Family and Community Service Act (CFCSA) . This application involves two young children, namely A.A.C., age 3 years, and C.L.M., age 1 year. S.M. is the mother of both children and she opposes the application. M.C. is the father of the child A. and he also opposes the application. D.B. is the father of C. and he did not appear for the hearing. [ 2 ] P.P. and R.P. are the parents of M.C. and the paternal grandparents of the child A. They are seeking an order for the custody of the child A.

Their application is filed pursuant to Section 34(1) of the Family Relations Act of British Columbia ( FRA ). [ 3 ] P.A. who is the sister of the mother, S.M., filed an application seeking an order for custody of both children, A. and C. This application was also filed pursuant to Section 34(1) of the Family Relations Act of British Columbia ( FRA ). [ 4 ] It was agreed between all counsel and the parties that the three applications would be heard together in this hearing. THE CHILDREN AND THE PARENTS [ 5 ] The child A. was born on [DOB] at Salmon Arm, B.C.

The Ministry of Children and Family Development (the “Ministry”) removed A. from hospital shortly following her birth. The Ministry removed A. because of concerns regarding the mother’s drug use and the mother’s previous involvement with the Ministry. A. was placed in a foster home where she has continued to reside, except for a brief period of time when she was with her grandmother, until the present time. [ 6 ] The child C. was also removed at birth following her delivery at the Vernon General Hospital on [DOB}.

Again, the Ministry removed C. based on concerns regarding the mother’s drug use and previous Ministry involvement. When C. was born, she displayed signs of withdrawal symptoms including jitters, trouble feeding and failure to thrive. C. was placed in the same foster home as her older sibling A., where she has remained continuously to the present date. [ 7 ] The parents, Ms. M. and Mr. C., had an on and off again relationship for approximately five years. The relationship was a tumultuous one marked by episodes of violence and drug use. They separated in 2009.

Although the parents were separated when the child C. was born, Mr. C. believed that he was the father. Subsequently it was determined that a Mr. D.B., the father of Ms. M.’s older three children, was also the father of the child C. [ 8 ] The parents continued to live separate and apart from each other and the evidence suggests that there is little likelihood of reconciliation. CHILD PROTECTION PRINCIPLES [ 9 ] The Child, Family and Community Service Act (the “ Act ”) provides that the safety and well being of the children are the paramount considerations in interpreting and administering the Act .

Section 2 of the Act reads as follows: 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. [ 10 ] The application the Director has made is under

Section 49 of the Act . Section 49 (5) of the Act reads as follows:

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

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

b) the parent will be able to meet the child's needs. [ 11 ] Section 49(6)(

c) refers to the child’s best interests. These words are defined in

Section 4 of the Act as follows:

(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 thechild's best interests [12] The Act makes it clear that the family is the preferred environment for the care and upbringing of children and the responsibilityfor the protection of children rests primarily with the parents. In other words, the law recognizes that raising children is theresponsibility of parents.

Under normal circumstances natural parents have the right to the custody of their children, however, if parentsare unable or unwilling to provide a minimum standard of care and protection for the child the state may intervene on behalf of thechild. [13] In the decision of New Brunswick (Minister of Health and Community Services) v.

G(J) (SCC), 1999 S.C.J. 47,the Supreme Court of Canada concluded that the Charter of Rights and Freedoms requires the state to provide legal aid to parents inchild protection proceedings. [14] The Court in the New Brunswick case also wrote at paragraph 61, the following: Removal by the Ministry of a child from parental custody is a serious interference with the psychological integrity of the parent. Encouraging a parent’s raising and caring for a child is an interest of fundamental importance in our society.

State interference with theparent–child relationship through child protection proceedings is a gross intrusion into a private and intimate sphere. A person’s status asa parent is often a fundamental part of personal identity, which makes the stigma and distress resulting from a loss of parental status aparticularly serious consequence of state conduct. HISTORY OF COURT PROCEEDINGS [15] An interim order was made placing the child A. in the temporary care of the Director on April 23, 2008. Access to the child wasto be supervised or unsupervised at the discretion of the Director.

On May 7, 2008, the Court made an order that the child A. remain inthe temporary custody of the Director for a period of 3 months. Again, it was ordered that the parents be entitled to supervised orunsupervised access at the discretion of the Director. [16] The Director filed an application for a Continuing Custody Order pursuant to Section 49(5)(

b) of the Act on July 29, 2008. Apresentation hearing took place on May 18, 2010 with respect to the child C. An interim order was made granting custody of the child tothe Director with access to be supervised or unsupervised by the parents.

The Director filed an application for continuing custody of thechild C. on July 29, 2010. [17] On February 23, 2011, the Court made an order that the two files be joined for all purposes. [18] The hearing in this matter commenced on November 24, 2010 and continued on a number of subsequent days. [19] The witnesses called at the hearing were as follows: For the Director: Debra Kurtz, Ministry social worker Deenie McAllister, mental health and addictions counsellor Jill Kendall, Ministry social worker J.F., foster parent for the children A. and C.

Tracey Jones, family support worker Mother: S.M., the mother of the children P.A., sister of S.M. C.P., friend of S.M. L.P., friend of S.M. D.H., friend of S.M. B.P., friend of S.M. Father of the child A:

M.C. Father of the child C : D.B. did not attend these proceedings; however, he signed a written consent dated November 19, 2010, consenting to the Director’s application for a Continuing Custody Order and that the child C. be placed for adoption. Grandparents : P.P. R.P. Sister of S.M. : P.A. Expert witness : Dr. G.W. Lea, Clinical Psychologist Director’s Position [ 20 ] The Director submits that the children should remain in the permanent care of the Director as a result of the following concerns: 1. Extensive involvement with mother and the Ministry regarding the mother’s three older children. 2.

Substance abuse issues regarding mother and father. 3. Parental competency issues with respect to mother and father. 4. Concern regarding the ability to provide stable housing. 5. Parental ability to access and utilize appropriate community supports. 6. Criminal history of the father. 7. Parental capacity issues. [ 21 ] The Director is opposed to the custody applications filed by both the P.’s and Ms. A. The Mother’s Position [ 22 ] The mother says that she has recently maintained a sober and drug free lifestyle. She says that she will be able to maintain a safe environment for her children.

She says that she loves her children and will rely on the assistance of family members and friends to raise the children. The mother opposes the application for a Continuing Custody Order and says that she is able to raise her children on a full time basis. The Position of A.’s father, M.C. [ 23 ] Mr. C. is opposed to the Director’s application for a Continuing Custody Order. Mr. C. submits that the children should be returned to the care and custody of the mother. Mr. C. believes that he can have a positive influence in the life of A. and wants to be a part of her upbringing.

The Position of C.’s father, D.B. [ 24 ] As referred to earlier, Mr. B. supports the application of the Director for a Continuing Custody Order with respect to his daughter, C. Mr. B. did not attend the hearing. The Position of P.A. [ 25 ] P.A. submits that it would be in the best interest of both children, A. and C., that she be granted custody of these children. She proposes to enter into a co-parenting arrangement with the mother, S.M., with respect to both children.

The Position of P.P. and R.P. [ 26 ] The P.s, the paternal grandparents of the child A., submit that it would be in A.’s best interest to be placed into their custody.

SUMMARY OF THE EVIDENCE [ 27 ] At the outset I will address the issue of credibility as it relates to the witnesses presented by the Director. The parents complain that the Ministry conspired against them to prevent them from parenting the children. The parents also complain that the Ministry workers were not supportive and could not be trusted. To the contrary I found no hint of any conspiracy by the social workers employed by the Ministry to deprive the parents of the children without any basis for doing so. The witnesses employed by the Ministry, Ms. Kurtz and Ms.

Kendall, presented their evidence in a credible, forthright and professional manner. It is clear from the Ministry evidence that the social workers attempted to engage the parents, offer services and deal with the parents’ issues but were met with denials and a lack

of cooperation. [ 28 ] The social workers in this case facilitated two family conferences that involved the parents, the grandparents and a number of other individuals connected with the children. At the conclusion of the first Family Case Conference on April 17, 2008, it was decided that A. would be placed in the care of the paternal grandparents.

Shortly thereafter the Ministry received a family doctor’s report indicating that the grandparents should only be short-term care givers as a result of medical issues and as a result A. was removed from the grandparents and returned to the foster home placement. [ 29 ] Ms. Kurtz also testified that the Ministry looked at placing the child A. with M.C.’s sister but she was not in agreement with the proposal as she was concerned about Mr. C.’s violent behaviour.

The Ministry also looked at other alternatives including extended family members as far away as the Province of Manitoba but were unsuccessful in finding any suitable placement. Ms. Kurtz is a social worker with 14 years’ experience in the Province of British Columbia and is employed by the Ministry. She has a Bachelor of Social Work degree. She became involved with the child C. shortly after she was born in February, 2008. [ 30 ] Ms.

Kurtz reviewed numerous documents in the Ministry file including the running records and various reports. [ 31 ] The lengthy history of S.M. with the Ministry was also reviewed by Ms. Kurtz. Ms. M. is also the mother of three older children: W.M., S.B., and S.B. W. is now 15 years of age, S. is 13 years of age, and S. is 11 years of age. The three older children were removed from Ms. M.’s care in 2004 due to neglect and substance abuse issues. The mother has not seen these children since 2004. They currently live with Mr.

B.’s parents in the community of Barriere, British Columbia. [ 32 ] The running records of the Ministry, as reviewed by Ms. Kurtz, present a very troubling and disturbing picture of the lives of the three older children while in the care of S.M. and D.B. Several relevant extracts read as follows: “INTAKE HISTORY S. has a lengthy history with MCFD dating back to 1999. S. was also a child in care. S. has 9 previous intakes on her FS file. Intake 001 - 1999 August: Report of D. abusing the children. Reportedly he was burning W. with a lighter.

Upon collateral check with the RCMP, they had recently been to the home and described it as a “sty” and that it smelled of marijuana. Collateral check was also completed with PH Nurse who had found S. to be protective of her children. Home visit was completed and social worker met the children. S. had a staph infection on her legs and on medication - no visible burns or other marks on the children. Collateral with family physician revealed no concerns. Homemaker services offered, but the family declined.

Intake 002 – 2002 February: Report that living conditions were filthy with animal feces, home unsafe, no food, money being spent on drugs for D., the children have no beds, and the home was flea infested. As well, S. and D. were reportedly smoking marijuana and crack in the home where the children are. The parents tie the bedroom door closed with the children in the room. W. was to care for his younger siblings and if they do something they are not supposed to do, W. gets in trouble. Caller had observed S. kick W. in the butt the previous day. The children were found to be in need of protection.

Intake 005 – 2004 December: D. had told family support worker that he and S. were using crack cocaine. S. was purchasing it and bringing the drugs home every day. Concerns were raised about how S. was paying for the drugs. Home was, again, dirty. The family support worker had been unable to contact S. and D. for a couple of months. Social worker and family support worker attended the home. The home was very dirty with dirty dishes stacked up and the bath tub full of dirty clothes. Social workers directed D. to have the home clean and safe by the next appointment with the family support worker.

The family support worker contacted social worker when no change had been made to the home. This was when D. admitted to crack use. The children were removed. The children were returned on May 1, 2005, under a very strict supervision order. The Intensive Family Preservation program (IFP) was put in place. Intake closed with open family service file. Intake 006 – 2005 June: At a scheduled home visit, D. and S. acknowledged a resumption of drug use. The children had also been withdrawn from day care (a term of the supervision order).

The rent money was being used to purchase drugs, with a likely eviction occurring due to non payment. The children were removed. [ 33 ] The child A. was removed by the Director at the time of her birth on [DOB], from the Shuswap Lake General Hospital. The reasons for the removal were detailed in the testimony of Ms. Kurtz, as well as the Report to the Provincial Court in Form A that was filed on January 31, 2008 in these proceedings.

Essentially the concerns were as follows: the mother’s use of drugs during pregnancy, a lack of permanent housing, missed prenatal appointments, previous involvement of the Ministry regarding the mother’s older three children, the father’s substance abuse issues, and the father’s violent behaviour background. In addition, Ms. Kurtz related her concerns regarding the mother’s mental health and cognitive issues. These particular issues were also dealt with in some detail in the report of Dr. Lea. Ms.

Kurtz also described the removal of second child, C., from the Shuswap General Hospital at the time of birth on May 14, 2010. C. was placed in the same foster home as A. where they have remained to the present date. The Hospital reported that when Ms. M. presented in labour on May 14, a urine screen showed a positive for opiates, cannabinoids and methamphetamines. The child C. showed signs of withdrawal from drugs presenting with jitters, troubles feeding and failure to thrive. [ 34 ] Ms. Kurtz testified that both children have continued to thrive in their foster home placement.

[ 35 ] The plan of the Director is to place both children for adoption and to keep the children together. The plan is to provide for an open adoption which would allow contact between the children and their extended family. [ 36 ] The witness W.F. is the foster parent for the children. Ms. F. has had extensive experience as a foster parent and is a licensed practical nurse by trade. She describes A. as a happy child. A. has some speech issues but appears to be coming along and is being assessed on a regular basis.

C. is described as a very active one-year-old who seems normal with no apparent special needs. [ 37 ] Dr. Lea prepared a Parental Assessment Report with the consent of the Director and the parents. The Report is dated March 16, 2011 and was filed as Exhibit 17 at the hearing. Dr. Lea is a highly qualified clinical psychologist at the University of British Columbia, the University of Western Ontario, and the School of Professional Psychology, University of Denver, Colorado. He obtained a doctor of psychology degree at the University of Denver in 1980. [ 38 ] Dr.

Lea also has extensive professional and clinical experience dating back to 1973. Since 1983 he has been in private practice as a psychologist in Kelowna, British Columbia. He has prepared approximately 300 parental assessment reports and has testified in excess of 175 times as an expert witness in courts in British Columbia, Alberta and Ontario. I found Dr. Lea to be an impressive witness who retained his professional objectivity throughout his evidence in chief and cross examination. [ 39 ] The report of Dr. Lea is 30 pages in length. Dr.

Lea relied on a significant amount of information provided to him by way of documents and running records from the Ministry files. These documents include a comprehensive risk assessment and risk analysis dated June 3, 2010 in reference to the mother, and a similar comprehensive risk assessment and risk analysis prepared by the Ministry with respect to the father dated November 3, 2010. Dr. Lea also conducted clinical interviews and testing with both Ms. M. and Mr. C. Dr. Lea also spoke with a number of collateral sources that he identifies in the report. [ 40 ] Dr.

Lea states in his report that he is satisfied that both parents are genuinely interested in assuming responsibility for A. and/or C. Dr. Lea’s recommendations are set out at the end of his report as follows: Before A. or C. can safely be returned to their parents’ care, the following considerations would, I believe, have to be made. (

a) Parental custody would, in my opinion, be best executed under a supervision order of twelve months’ duration. This would necessitate the parents having a positive working relationship with the Ministry. (

b) With respect, the relationship the parents have with the current social workers is conflicted and does not demonstrate the type of trust needed to work together for an extended amount of time; an alternate may therefore need to be developed. I do not say this in any sense critical of the current social worker. (

c) It would be necessary for the parents, individually or otherwise, to have a support person upon whom they can rely on a day-to-day basis. Mr. C.’s mother is prepared to assume that responsibility, as is Ms. A. for Ms. M. I am concerned though that Ms. M.’s move to Barriere is away from her sister’s in-person assistance. Telephone contact remains an option for them. (

d) The parents should have ongoing weekly contact with/attendance in a parenting program and/or a parent’s group if one or more of the infants are placed in their care. (

e) Both parents have well-defined, lengthy histories of substance abuse; both parents should be directed to an alcohol and drug program for treatment with the goal of drug and alcohol abstinence. I regard this as a necessary step before assuming care and custody of their infant (S). Both parents advised me that they are willing to do “anything” to assume their parental duties. This kind of demand puts them, regrettably, at risk of failure, but not to insist on it predicts continuing substance abuse issues and all the related family, social and legal problems evident in their MCFD and legal record. (

f) The record shows that both parents come from dysfunctional families of origin which impact into the present. The parents should undertake counselling with a mental health professional of their choice to address these issues. Such sessions would help them to be better parents; such counselling is highly desirable but I do not see their assuming parental responsibilities conditional on their doing so. (

g) Both parents, Ms. M. in particular, and their infants would benefit from home care and regular respite, especially if such assistance is not available through family and friends. [ 41 ] Dr. Lea elaborated further on his recommendations during his testimony at the hearing. [ 42 ] Dr. Lea testified that Ms. M.’s three older children are special needs and present with significant challenges, according to the documentation and history that he reviewed. [ 43 ] Dr. Lea was very pointed and direct in his opinion that the mother was not capable of parenting children on her own.

He said that she would require the assistance of an individual who would be dedicated to giving the next fourteen to sixteen years to help the mother and to be prepared to do the heavy lifting in parenting. [ 44 ] Dr. Lea conducted psychological testing on the mother in the preparation of his report. The testing consisted of a battery of measures pertaining to psychological status, anger management, substance abuse, and risk of child physical abuse.

The testing covered the areas of personality assessment inventory, anger disorders scale, child abuse potential inventory, Michigan Alcoholism Screening Test (MAST), and drug abuse screening test. Dr. Lea stated that the mother functioned at a grade 3.6 level. Dr. Lea further stated that the mother has a learning disability and is of borderline intelligence. She is unable to remember directions, has trouble expressing herself verbally and in writing, and has difficulties with reading, writing, comprehension and memory. [ 45 ] As Dr.

Lea stated in his report: Her impairment directly and significantly restricts her daily living activities, especially in the areas of shopping, meals, paying rent and

bills, medications, and social function. She requires assistance with those daily activities. She relies on support from family, friends and learning assistance through the Adult Education Program. She typically falsely minimizes her impairment and the help she needs. [ 46 ] Dr. Lea also pointed out that the mother has an extensive record with respect to the use of alcohol and drugs. The drugs involved include cocaine and marijuana. [ 47 ] Dr. Lea reviewed the results of drug tests that were conducted on the mother that showed that she was using cocaine and drinking alcohol while pregnant with the child C.

He also notes that the mother admitted to smoking marijuana on a daily basis. The mother also testified positive for cocaine and marijuana when she delivered the child A. [ 48 ] The mother testified that she has not used cocaine for the past four years. However, that evidence is clearly not consistent with the drug testing results and her own admissions to Dr. Lea. She testified further that she is trying to get off drugs but continues to smoke two joints of marijuana a day.

In fact, she admitted smoking marijuana before testifying in court in this hearing because she was nervous and expected her day in court to be a “rough” day. The mother further states that she does not have an alcohol problem but does admit to having a drink “once in a while”. [ 49 ] The mother disputes the results of the previous drug tests conducted at the time of the children’s births but her evidence concerning drug and alcohol use is very contradictory and unreliable. Dr. Lea states the obvious, namely that both parents need to abstain from the use of drugs and alcohol.

He further made it clear that both parents need to complete residential treatment programs that deal specifically with alcohol and drug issues. [ 50 ] Dr. Lea testified that if the parents really love the children they need to show that they can each deal seriously with their respective issues. Dr. Lea offered his opinion that it would be highly dangerous to place the infant children, A. and C., into the care of the parents unless they address the issues outlined in his report. [ 51 ] Dr. Lea also reported on his observations and testing of the father. In his report and his testimony Dr.

Lea identified the following areas of concern: alcohol and drug abuse or dependence, social stressors, hostility, and failures of close relationships. The father’s past history indicates a severe drug and alcohol problem. The criminal record indicates that Mr. C. becomes violent and aggressive when under the influence of drugs and/or alcohol. Mr. C. testified that the birth of A. constituted an event that was something he could be proud of. He said it has made a change in his life and he now realizes that life is not all fun and games. [ 52 ] Mr. C. has had a very difficult relationship with the Ministry.

He has a great deal of distrust and even disdain for social workers involved in his life. For example, Mr. C. refuses to provide hair samples to the Ministry because he says that he does not trust the results. Mr. C. blames the Ministry for his own drug and alcohol addictions as well as the break up of his relationship with S.M. [ 53 ] A series of disturbing voicemail messages left by Mr. C. on the telephone voicemail of the social workers, Ms. Kurtz and Ms. Hays, reveal the depth of disdain Mr. C. has for the Ministry.

Quoting from only one of the voicemails that reads as follows: Voicemail message dated May 6, 2010: “You like to talk all night on that voicemail of yours, aah, here’s one for you, you know who this is don’t you, here’s one for you, you should stay away from me, listen to me you piece of shit! You fucking want to talk to me; you phone me and talk to me! Fuck your shit man! I won’t put up with your crap! You fucking think I’m doing something! Fuck you! Two subsequent voicemail messages left by Mr. M. are as equally disturbing and vulgar. [ 54 ] Mr.

C. made it clear in his testimony that he does not believe he needs to abstain absolutely from the consumption of alcohol and/or drugs. He displayed very little insight into his problems and issues. For example, he testified that over the past couple of years he has had approximately four slips in abstinence and used crack cocaine. He stated “That’s it; it just reaffirmed how much I hate the drug”. He also testified that if he has only a few lines of cocaine he is okay and if he has a few beers he is also okay, but when he mixes the two he gets into trouble.

He testified that he does not agree with the recommendation of Dr. Lea that he needs to abstain absolutely from the consumption of drugs and/or alcohol. In his testimony Mr. C., in my view, displayed a real disconnect between his own life and the responsibilities of parenthood as well as the needs of an infant child. [ 55 ] As Dr. Lea so aptly concluded that when one looks at Mr. C.’s lifestyle over the past three years one has to wonder how “life changing” the birth of A. was in his life. [ 56 ] The mother testified at some length in this hearing.

She is 40 years of age and presently lives alone in an apartment in Enderby, British Columbia. As already reviewed, she is the mother of five children. She raised the older three children with their father, D.B., until the children were removed by the Ministry. The mother testified that she raised the children until she became a drug user. She said that she was 19 or 20 years of age when she started using drugs and at the age of 24 started using cocaine, including crack cocaine.

She admits to continuing to use marijuana on a daily basis which, she testified, is required to help calm her down and to help her get to sleep. [ 57 ] The three older children are all in the care of D.B.’s parents. Ms. M. has not seen the three older children since 2004 or 2005. She was not able to say what schools the children are attending and she was not able to give this Court any information regarding the current circumstances of the three older children. She was not able to tell the Court the ages or the dates of birth of the three children. She says she is not aware the children have any special needs.

She says that she plans on seeing her older children again at some time in the future. She was unable to clearly explain why, in fact, she has not visited her children since 2004 or 2005. [ 58 ] The mother has a lengthy history with the Ministry. She herself was placed into foster care at an early age when she was removed from her mother. She continues to have a deep distrust of the Ministry and the social workers who have worked with her over the years. [ 59 ] The mother admits to a troubled history of substance abuse and dysfunctional relationships. Notwithstanding the abusive

relationship with Mr. B. I think it is noteworthy that at the time Dr. Lea was preparing his Report in this case that Ms. M. had returned to Barriere in an attempt to effect a reconciliation with D.B. She said the attempted reconciliation did not work out and she returned to the Enderby area. The brief reconciliation with D.B. resulted in the pregnancy of the child C. [ 60 ] Ms. M. attended the Crossroads Treatment Centre for addictions treatment several years ago. Since completing the program she admits to having “several slips”. Ms. M. currently lives in a one bedroom apartment.

She was not able to name the road she lives on. She sleeps on a couch in the living room because the bedroom is full of boxes. She says that she maintains a clean home. [ 61 ] As indicated, Ms. M. admits to a history of cocaine use and current daily marijuana use. She admits to using cocaine at the beginning of her pregnancy with A. but testified that “I slowly took myself off the cocaine because it was no good for the pregnancy.” [ 62 ] The mother testified that she did not finish high school. She said that she had a nervous breakdown and was not able to complete her schooling.

She has made efforts to upgrade her education while living in Salmon Arm but has not been successful. [ 63 ] The mother has attended several programs. She attended the Crossroads Drug Treatment program in September, 2008. She has also attended several parenting programs including the “Nobody’s Perfect” program. While the mother testified she was using drugs, including cocaine, at the start of the pregnancy of both A. and C., she says that she stopped using cocaine as soon as she became aware she was pregnant.

She testified that she slowly took herself off the cocaine because she knew that the drug use was not good for the pregnancy. However, A. was born on [DOB], in Vancouver and a urine drug test completed at Vancouver Women’s Hospital in late December, 2007, showed positive for marijuana and cocaine use. With respect to the birth of C. on [DOB], drug tests showed that the mother tested positive for cocaine in October and November, 2009. In addition, baby C. tested positive for cannabinoids and methamphetamine/MDMA via maternal use. A blood test done by Dr.

Bell in February in 2010 also indicated use of a cannabinoid. [ 64 ] Clearly, the scientific findings refute the claims of the mother that she did not use drugs during the pregnancies. In fact, a drug test taken when the mother attended the hospital for delivery of C. showed a positive result for cocaine, methamphetamines, and cannabis. [ 65 ] The mother testified that she has plans for the future.

These plans include the following: - She is working on getting a two-bedroom apartment suitable for the children. - She is planning to find housing closer to her sister who she will be relying upon for support. - She is planning to go for help for her use of marijuana. - She is looking into parenting meetings. - She is planning to get counselling for issues in her life. - She is looking into attending a school program to upgrade her education. [ 66 ] The mother has attended supervised access visits with both children on Wednesdays for periods of one to two hours.

With the exception of a couple of missed visits, she attends the visits on a regular basis. The supervised access workers’ written records have been filed as an exhibit in this hearing and generally indicate that the visits with the mother and the father have gone well. [ 67 ] In describing her interaction with the children the mother states that she changes their diapers and plays with the children. The mother testified that she wants to parent the children; she wants to hold them and take them to parks and the beach.

She says that she will be able to rely on the assistance of her sister P.A. in raising the children. She would also be looking at respite care for the children if they are in her care full time. [ 68 ] When questioned about A. and her speech issues the mother said that A.’s speech was slow at first but is better now.

She also said “What little girl isn’t slow at speaking”. [ 69 ] She testified that her sister would be able to help her with the children’s homework and that M.C.l could also help because he has, she stated, “a very good brain on his shoulders”. [ 70 ] I have concluded, on the evidence before me, that it is clear the mother does not understand or grasp the fundamental needs of children and the responsibilities of child rearing.

The mother displays no understanding of the impact of her lifestyle on the lives of her children. [ 71 ] While the mother has taken positive steps to improve her personal lifestyle and while she has been visiting the children on a regular basis during supervised access visits, it is my view that she is simply not capable of assuming full time responsibilities of raising these two young girls, even with part time or full time assistance. [ 72 ] P.A. is the sister of S.M. Ms. A. is also an applicant for custody of the two children. Ms. A. is married and has two grown children.

She is not able to be employed because of a disability but sells Mary Kay products as a sideline. [ 73 ] Ms. A. testified that she is willing to help S.M. raise the children. She is prepared to give her sister day-to-day help. She currently lives a 30-minute drive distance from the mother. She offered her opinion that Ms. M. would do a fine job raising the girls and that she would only need assistance every other day. She further testified that the mother would not need assistance raising the children over the long term. [ 74 ] Ms.

A. also testified that she believes the mother did a fine job raising the older three children and that there was no child care issues in relation to those children.

[ 75 ] With respect to the mother’s drug issues, Ms. A. testified following the mother’s attendance at the Crossroads program she did well although she may have slipped “a few times”. [ 76 ] Finally, Ms. A. testified that the Ministry had not approached her at any time with respect to the issue of custody. This evidence is contrary to the evidence of the social worker, Debra Kurtz, who testified she met personally with Ms. A. and provided her with an application form. Ms. Kurtz further testified that she never heard anything back from P.A. [ 77 ] C.C. is M.C.’s sister. She lives in Salmon Arm.

She is currently in a common law relationship and has two children ages 12 and 8 years. She is employed at a local automotive dealership. She has known the child A. since birth. [ 78 ] Ms. C. visits A. and C. when they are with P. and R.P. She describes her mother, P.P., as a good caregiver. She also offered her opinion that her brother, M.C, could, with some help, be a good and caring parent for A. [ 79 ] C.P. is 25 years of age and is S.M.’s niece. She has two children, ages 4 and 2 years, as well as a newborn baby. She lives in the Enderby area and testified that Ms. M. interacts well with her children.

She says that she allows Ms. M. to visit with her children and further stated that Ms. M. interacts well with her children. [ 80 ] L.P. is a friend of the mother, S.M. Ms. P. also lives in Enderby. She is married with three adult children. She also knows P.A. and describes her as a very caring person and a good grandmother. [ 81 ] D.H. is also a friend of S.M.’s. She also lives in Enderby and describes S.M. as a very loving and caring person. She has known S.M. for 20 years and described Ms. M. as a parent who also looked after her older three children and was a very caring mother. She said that Ms.

M. takes care of herself and her home. She has not been in the company of Ms. M. when she has been using drugs. [ 82 ] Ms. H. also describes P.A. as a caring and thoughtful person. [ 83 ] In cross-examination Ms. H. admitted that she was not aware that S.M. suffered from any type of learning disability. She also was not aware of Ms. M.’s history of drug use. [ 84 ] The witness B.P. knows both S.M. and P.A. He describes P.A. as a happy-go-lucky individual who loves her children and grandchildren. He has had occasion to see S.M. interact with C.P.’s children and he described the interaction as “fantastic”.

It was apparent from Mr. P.’s testimony that his contact with S.M. and P.A. has been quite limited. [ 85 ] The final witnesses in the hearing were P. and R.P. P.P. is M.C.’s mother. R. P. is a step father to M.C. [ 86 ] P.P. participated in the Family Conference that took place after the child A.’s removal. Arrangements were made for A. to be placed by the Ministry in the P household. A. stayed with the Ps for four to five months when she was removed by the Ministry as a result of health concerns.

A was with the Ps for approximately ten weeks. [ 87 ] Essentially the Ps offer a back-up plan for custody in the event S.M. is not successful in regaining care of the two girls. The back-up position is that the Ps are prepared to assume their responsibilities for the upbringing of both children. At present the Ps have access to A. and care for her for an overnight visit on alternate weekends. [ 88 ] P.P. described S.M. as being very good with the children. She describes Ms. M. as being a loving parent. She says that Ms. M. is like a big kid herself and plays well with the children.

She also testified that M.C. has an excellent relationship with A. [ 89 ] R.P. testified that he does not trust the Ministry. He also testified that M.C. is not able to survive in life without the assistance of his mother. He said that M.C. still takes drugs and still gets into trouble with the law. [ 90 ] The Ps are in their sixties and it was their health concerns that led the Ministry to remove A. from their care. When P.P. was asked what her husband thought about her application to assume custody and take care of the two girls she replied that she did not know how her husband felt about this plan.

In cross examination she indicated to counsel that counsel would need to ask her husband what he thought about her plan to assume custody of the girls. Her response is somewhat surprising in the sense that one would expect that a plan by grandparents to assume full time custody and guardianship of children ages 4 and 2 would be the subject of some consensus and discussion. [ 91 ] R.P. also testified that M.C. is not allowed in his house. He said he has tried to help Mr. C. for years but without avail. In his closing comment to the court R.P. had this to say: “That little girl (

A) deserves to go to a home where she is safe and secure and that is not with S.M. and M.C.” [ 92 ] In

summary, a number of witnesses testified in court in general support of S.M, P.A., and the Ps. While I found all of these witnesses to be well intentioned it was apparent to me that all of the witnesses, perhaps with the exception of R.P., displayed a level of na ïv et é towards the shortcoming and failures of the mother and the father. Some of the witnesses were unwilling to acknowledge that the mother had any parenting issues or any issues in raising her older three children.

The witnesses either minimized the problems faced by the mother and father or were simply unaware of the history as outlined in the Ministry records and the report of Dr. Lea. Conclusion [ 93 ] I will turn firstly to the custody applications before the court. The factors to be considered are those set out in

section 24 of the Family Relations Act . That

section requires the Court to give paramount consideration to the best interests of the child, after a full consideration of the listed factors and with appropriate emphasis to each factor according to the child’s needs and circumstances. The factors are: (

a) The health and environmental well-being of the child including any special needs for care and treatment;

(

b) If appropriate, the views of the child; (

c) The love, affection and similar ties that exist between the child and other persons; (

d) The education and training for the child; (

e) The capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise these rights and duties adequately. [ 94 ] Subsection (3) requires the court to ignore any conduct of a person which does not substantially affect the above factors but if the court considers that it does substantially affect a factor, the conduct is to be considered only to the extent it does affect a factor. [ 95 ] In making this order I must give paramount consideration to the best interests of the children and, in assessing those interests, weigh the health and emotional well-being of the children, the love and affection and similar ties the children have with their parents as well as extended family, their training and education, and the parental capacities of the parties with the child’s needs and circumstances. [ 96 ] Because of the youth of the children A. and C., I do not consider that the views of the children or their education and training presently are factors that deserve much weight in this consideration. [ 97 ] What then are these children’s needs and circumstances?

The children have been in the care of the Director since birth and have continued to live together in the same foster home placement since that time. The older child A. will be 4 years of age on [removed for publication]. The younger child C. will be 2 years of age on [removed for publication]. The evidence indicates that the children are bonded not only to each other but also to their foster mother. This fact is not surprising since the children have lived together in the same home since birth.

In my view the most important consideration is the need for the children to be secure in a stable and loving environment. [ 98 ] The Ps are only applying for custody of the child A. as she is their granddaughter. It is my view that it would clearly not be in the best interests of the children to be separated. On that basis alone I would dismiss the applications for custody made by the Ps. [ 99 ] In addition, the Ps are now in their early sixties. The evidence suggests that they are not on the same page with respect to the custody application. Mrs.

P. takes the view that S.M. would be in a position to parent A., while Mr. P. takes the view that A. should not be in the care of S.M. or M.C. While there is no doubt that the Ps love their granddaughter, placing A. in their custody would, in my view, expose A. to ongoing dysfunction and conflict with both S.M. and M.C. [ 100 ] In the result I dismiss the custody application made by the Ps for the custody of the child A. [ 101 ] Turning to the custody application of P.A. I accept that she also loves both children A. and C.

I have also concluded that it would not be in the best interest of the children to be placed into the custody of Ms. A. [ 102 ] Ms. A. takes the view that S.M. should be the primary caregiver for the children. She also takes the view she would be prepared to assist Ms. M. in raising the children. The difficulty with Ms. A.’s view is, in part, that she appears to be completely oblivious to the mother’s difficulties in raising the older three children who are no longer in her care. The shortcomings of Ms. M. are obvious and while well documented, however, Ms. A. simply refuses to acknowledge that issues exist. Ms.

A. did testify that she talked to S.M. about Ms. M.’s anger and depression issues. She further testified that she would be prepared to assist Ms. M. in getting into courses that would assist with those issues. However, I note that although it is has been almost four years since A. was removed, no specific or concrete steps have been taken by Ms. A. to help S.M. address the issues in her life. [ 103 ] In particular I am also concerned about Ms. A.’s testimony that S.M. should be the primary caregiver and that she, Ms. A., would only need to help every other day and only for the short term.

This view is clearly not consistent with the testimony of Dr. Lea and his view that Ms. M. would require intensive hands-on assistance raising the children for many years. [ 104 ] Finally, while the ultimate question of custody is a decision that this court must make, I do place weight on the fact that the Director, through the testimony of the social worker Ms. Kurtz, who has had dealings with the Ps and Ms. A., does not support either of the two custody applications. [ 105 ] I turn to the Director’s application for a Continuing Custody Order. [ 106 ] Although I have considered each of the principles in

section 2 and

section 4 of the Act , I do not consider it helpful in this case to discuss the evidence under each of the subsections. Instead, I will highlight some of the evidence which supports a finding that the children need protection. Parenting Capacity [ 107 ] As a result of the children being removed at birth the mother has at no time parented either child. The mother has three older children who all have special needs. Those children were also removed from the mother by the Ministry and although the children do not live far from Enderby the mother has maintained no contact with those children.

The mother was seemingly unaware of those children’s special needs and was not able to articulate the dates of birth of those children or their present circumstances. She was unable to give a clear explanation of why she has not remained in contact with those children. [ 108 ] Even though the removal of the three older children was caused, in part, by drug abuse issues the evidence clearly indicates that the mother continued to use drugs during the pregnancies of A. and C.

Although the mother currently lives on her own she continues to use cannabis marijuana on a daily basis to calm her nerves and deal with stress in her life. [ 109 ] The mother simply does not recognize the impact of her drug use on her ability to properly care for children. She does not

appear to recognize the impact of her drug use on a child’s well-being. [ 110 ] Dr. Lea’s report as well as the testimony of Ms. Kurtz, and even the mother herself, satisfies me that the mother is simply incapable of making the necessary decisions to ensure that she has the ability to respond to the children’s needs and to make common sense decisions regarding their health, safety and comfort. [ 111 ] The mother became pregnant with the child A. in the spring of 2007.

She has now had almost five years to follow through with the many plans that she has for her life, plans that include regular counselling, abstinence from drugs, moving closer to her sister and setting up an appropriate residence for the children. To date, she has not made any serious progress in any of those areas of concern. In addition, the mother also has a lengthy history of failing to follow through with Ministry recommendations and services dating back to her older three children. [ 112 ] In the event the mother did have custody of the children she would require intensive supervision and assistance.

She is extremely distrustful of Ministry social workers and programs and thus the Court cannot have any confidence that she would avail herself of those services. Her family and friends do not recognize where her failings are and I find that placing the children in her care would lead to the children being placed at risk. Abusive Relationships with Men [ 113 ] The report of Dr. Lea details the mother’s history of abusive relationships with men. Her dysfunctional relationship with Mr. B. led to the removal of their older children.

She then became involved in another dysfunctional relationship with M.C. [ 114 ] Notwithstanding the mother’s difficult relationship with Mr. B., she made an effort to return to him at the time that Dr. Lea was preparing his report. It was subsequently determined that Mr. B., and not Mr. C., was the father of the child C. Again, Ms. M. has difficulty recognizing and learning from her past failures as placing her at risk of entering into another dysfunctional and violent relationship. Hopefully this will not happen, however, it is my view that she remains and will continue to remain in a vulnerable position.

The Need for Stable Housing [ 115 ] Consistent housing has been a problem for the mother. The mother and Mr. C. lived in several different residences and at times the mother resided in the Women’s Shelter or Transition Home in Salmon Arm. She currently lives in a one bedroom apartment and sleeps on the couch in the living room because the bedroom is full of boxes. [ 116 ] The upheaval caused by different moves would likely have a negative impact on the children and there is a pattern of transience in the mother’s life.

The Need for the Mother to commit to long-term counselling [ 117 ] Ministry records indicate that the mother has a history of failing to commit to long term counselling and support services. In her testimony at the hearing the mother spoke of attending various programs and her plans to commit to further counselling, however, as I have already indicated she continues to fail to follow through on her plans. It may be that the mother’s cognitive and mental health issues may virtually prevent her from engaging in successful counselling.

However, the time to make a commitment to engage professionals who could affect the outcome of this case has long passed. And even with sustained therapy, the report of Dr. Lea indicates that the mother would likely remain unable to parent. The Mother’s friends and support network [ 118 ] I have concluded on the evidence before me that although the mother’s friends and family are well intentioned they are not in a position to provide a satisfactory level of care and safety for the children.

Cocaine and Marijuana Use [ 119 ] Although the mother has indicated that she no longer uses cocaine, she continues to use marijuana on a daily basis. The mother’s impairment from her daily use of marijuana may limit her ability to respond appropriately in caring for two young children on a 24-hour-a-day basis. These young children are virtually totally dependent on their caregiver and again, it is my view, that placing the children in the care of the mother would be placing the children at risk. [ 120 ] The father is not seeking the return of the children to his care.

The father recognizes that he is not in a position to parent the children at this time but supports the mother’s opposition to the Continuing Custody Order. The father supports the mother’s proposal to have the children returned to her care and for himself he is asking this court to consider a provision that he have access to the children. He recognizes that access may need to be supervised for a period of time. DECISION [ 121 ] It is my finding that I would be placing the children at risk if I were to permit the mother to have custody of her children.

The mother’s intellectual challenges, cognitive learning disability and substance abuse issues have caused me to conclude that these children’s safety would be compromised in the care of the mother and furthermore, that these children’s physical and emotional needs and development would not be adequately provided for in the long term care of the mother. [ 122 ] In

summary, for the reasons above, I have concluded that the children are need of protection and that there is no significant likelihood that:

(

a) the circumstances that led to the children’s removal will improve within a reasonable time; and that (

b) the mother will be able to meet the children’s needs. [ 123 ] I cannot help but have a level of sympathy for the mother. I recognize that in her own mind the mother genuinely believes she can provide a good home for these two young children. The mother needs to be commended for maintaining her contact with Ms. McAllister and taking some steps to bring some stability to her life. I am also mindful that the visits with the children have generally been positive and that Ms. M. clearly loves her children.

However, there is clearly a significant difference between caring for children during one to two hour a-week supervised access visits and parenting children on a full time basis. [ 124 ] It is my finding therefore that it is in the children’s best interests that they be placed in the Continuing Custody of the Director under section 49(5)(

a) and (

b) of the Child, Family and Community Service Act . As mentioned above, Ms. A.’s and the Ps’ applications for custody under section 35(1) of the Family Relations Act are dismissed. _________________________________ The Honourable Judge E.F. de Walle