Director v. V.F. and K.D. Date:, 2017 BCPC 176

Citation: Director v. V.F. and K.D. Date: 20170530 2017 BCPC 176 File No: 1240802 Registry: Fort St. James 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: G.D.F. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: V.F. PARENT AND: K.D. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MALFAIR Counsel for the Director: Susie K. Kristan

Counsel for the Parent: Michael Reed, for K.D. Place of Hearing: Fort St. James , B.C. Date of Hearing: March 31, 2014 Date of Judgment: May 30, 2017 INTRODUCTION [ 1 ] This is an Application by the Director of the Ministry of Child and Family Services for an order pursuant to s. 49(5) of the Child, Family and Community Service Act placing the child, G.D.F., in the continuing custody of the Director. G.D.F. is the biological child of V.F. and K.D. She was born [omitted for publication] and is three years old.

G.D.F. was removed at birth and has been in the care of the Director ever since. [ 2 ] At the commencement of this hearing, counsel appeared on behalf of the father, K.D., who was not present. K.D.’s counsel advised that K.D. was not formally consenting to the Director’s Application pursuant to s. 60 of the Act, however K.D. took no position with respect to the Director’s Application and did not intend to participate in the proceeding. K.D.’s counsel advised that K.D. was not in a position to care for G.D.F. and K.D. was not certain if he was in fact G.D.F.’s biological father.

Counsel excused himself from the balance of the hearing and this hearing proceeded in the absence of K.D. [ 3 ] G.D.F.’s mother, V.F., did not appear at the Application. The Misikew and Metis First Nations were also served with notice of the Director’s Application as G.D.F.’s parents identify with those Aboriginal communities, however they were not present. The only interested party present at this CCO hearing was the Director. FACTUAL BACKGROUND [ 4 ] Amanda Biddulph is a designated representative of the Director and the social worker assigned to V.F. and her children. Ms.

Biddulph testified that the Ministry has been involved with V.F. for years. V.F. has four and five year old sons with K.D. who are currently placed in the care of their paternal grandparents pursuant to a temporary custody order. V.F. also has a twelve year old son, T.H., who has been placed with his own biological father pursuant to a Continuing Custody Order. [ 5 ] Ms. Biddulph prepared a comprehensive Affidavit outlining the history of these proceedings sworn October 28, 2015, which she adopted in her evidence. According to Ms.

Biddulph and Ministry records, the Ministry first became involved with V.F. and K.D. in April 2012, as a result of significant mutual family violence involving the use of weapons which culminated in V.F. stabbing K.D. with a screwdriver. At the time their oldest son, D.D., was six months old. [ 6 ] Subsequent contacts between the parents and the Ministry revealed that both parents suffered from alcohol and drug abuse issues. V.F. made some attempts at treatment but K.D.’s attempts were inconsistent and he continued to engage in criminal activity and violence.

Safety plans were put in place and D.D. was returned to V.F.’s care under supervision in January 2013. By that time her younger son, J.D., had been born. K.D. was not permitted unsupervised access to the children. At that time, both parents were placed under expectations by the Ministry to access services to address their violence and addiction issues with supports from the Director. [ 7 ] In February 2013, social workers found V.F. and K.D. unsupervised in a hotel room with V.F.’s sons present contrary to the supervision order in place at that time.

V.F. was warned about the potential for removal of her children for non-compliance with the supervision order and V.F. agreed to move to a women’s safe home. [ 8 ] In August 2013, V.F. called the Ministry and reported she was not able to care for her three sons, she had no family to care for them, she could no longer cope and she needed to go to treatment. At this time her oldest son, T.H., was supposed to be living with his paternal grandfather in Alberta following his earlier removal by Alberta child welfare authorities.

Social workers learned that K.D. was continuing to have unsupervised access to the children in contravention of the supervision order and the Director removed all three children. [ 9 ] Drug tests administered in September 2013 showed that V.F. was consuming cocaine and marijuana. In addition, the RCMP confirmed to social workers that there were ongoing concerns of violence and substance abuse by V.F. and K.D.

T.H.’s grandparents in Alberta expressed they were no longer able to care for him so the Director placed all three boys in foster homes. [ 10 ] In November 2013, V.F. was arrested for stabbing K.D. with a butter knife and hitting him with a lamp. She was intoxicated at the time. Ten days later, K.D. was arrested for sexual assault. [ 11 ] In January 2014, K.D.’s probation officer reported to social worker Cathy Stott that K.D. continued to act irresponsibly, abuse substances, conflict with V.F., and did not have stable income or housing.

On January 21, 2014, K.D. was convicted of the aggravated assault upon his father by cutting off his ear. K.D. spent several months of 2014 in custody for that offence and on remand for further allegations for assault causing bodily harm and unlawful confinement arising in September 2014. On January 21, 2014, Ms. Stott wrote a letter of expectation to V.F. and K.D. which included substance abuse counselling, residential treatment, drug testing, domestic abuse counselling, and active participation in future family planning meetings.

Birth and Removal of G.D.F. [ 12 ] The circumstances of G.D.F.’s removal were set out in the Report to Court of Cathryn Stott filed May 27, 2014. MCFD were called to the hospital following G.D.F.’s birth on [omitted for publication], when the baby tested positive for cocaine. It was reported that V.F. said she could not care for the baby, had used alcohol, marijuana and crack cocaine during her pregnancy, and was expecting a

removal. Baby G.D.F. was born with low birth weight and at one point had to be resuscitated. Baby G.D.F. remained in the neonatal unit of the hospital in Prince George until she had withdrawn from the drugs in her system, following which she was removed by the Director and placed in the approved foster home where she continues to reside. G.D.F. suffers from cognitive and physical defects which require special care. [ 13 ] At the hospital V.F. suggested the child’s paternal grandmother might be a possible caregiver for the baby as V.F.’s own mother was deceased and V.F. had no contact with her father.

V.F. named her baby and indicated to the social worker that she would like to work towards a return of the child and have visits with her. The social worker told V.F. that a presentation hearing would take place on May 28, 2014 at the Prince George Courthouse. [ 14 ] V.F. left the hospital May 25, 2014. She never returned to visit G.D.F. who was withdrawing from cocaine. The Court records show V.F. did not attend the presentation hearing or any other court appearances concerning her daughter. Ms. Biddulph testified that MCFD records show V.F. has not visited G.D.F. since her birth.

V.F. has not identified, and the Ministry is not aware of, any relatives on V.F.’s side who might care for the child. [ 15 ] After G.D.F.’s birth, V.F. disengaged with the Ministry concerning the care and planning for her children and the Director was unsuccessful in contacting her for several months. [ 16 ] On June 23, 2014, the Director made an Application to place all four of V.F.’s children, including G.D.F., in the continuing care of the Director as it did not appear likely that the parents would be able to care for them in a reasonable time and the older boys had already been in the Director’s care for nine months.

The Director was unable to locate V.F. to serve her with the Application. [ 17 ] On January 23, 2015, Social Worker Stott met with K.D. following his release from custody, having spent the previous ten months in prison. He was now sober but had medical and financial issues to attend to and still needed addiction and domestic violence counselling. Ms. Stott referred K.D. to a family support program to help him with these needs and advised him of the pending January 26, 2015 court date concerning the continuing care of his children.

K.D. expressed reservations about his ability to care for all of the children and told the social worker that he believed V.F. had just got out of jail, was now using speed, and associating with a “bad” boyfriend. [ 18 ] On March 1, 2015, social workers met with K.D. about progress on his counselling and supports. He had made some initial progress but missed several appointments and only completed one day of domestic violence counselling. K.D. was advised of the steps he would have to take to prepare his home to receive the children.

Two weeks later K.D. was arrested for breaching his probation, assault causing bodily harm, choking and forcible confinement in connection with an assault on his new girlfriend. K.D. admitted to the social worker he was under the influence of alcohol at the time and had been triggered by the issues raised in his domestic violence program. K.D. was released on bail April 21, 2015. [ 19 ] The Ministry provided financial support to facilitate K.D.’s visitation with his two sons who were in foster homes in Burns Lake.

Reports from the parenting support service assisting K.D. indicated K.D. did not follow through with his recommended support and counselling services. [ 20 ] As social workers were unable to locate V.F. for many months, the Director retained a bailiff on May 1, 2015, to find V.F. and serve her with the Director’s Continuing Custody Application for the four children. On May 5, 2015, the Court asked K.D. if he could find and advise V.F. of the proceedings, but he ultimately did not follow through as he admitted he was afraid of V.F.’s boyfriend.

After a month of searching for V.F., the bailiff was still unsuccessful in finding her. K.D. was arrested again on September 2015, and remanded in custody on breach charges. [ 21 ] In October 2015, the Ministry again made attempts to locate and serve V.F. with the CCO Application. Social Worker Biddulph attended various hotels and shelters in Prince George where V.F. was known to stay and left messages at those locations, but received no communications from V.F. [ 22 ] Ms. Biddulph swore a further Affidavit November 14, 2016, which she adopted in her evidence. As set out in that Affidavit, Ms.

Biddulph learned on December 2, 2015, that V.F. had received a jail sentence for various offences including possession of drugs, theft and assault. On April 15, 2016, she received a report from the RCMP that V.F. had 17 police contacts between December 2014 and April 2016, primarily related to drug use and trafficking, domestic violence and alcohol abuse.

Social Worker Biddulph tried to locate V.F. through the criminal justice system but was told V.F. was not reporting to her probation officer as required, the probation office had no current contact information for her, and there was an outstanding warrant for V.F.’s arrest. An MCFD employee attended the courthouse May 18, 2016, when V.F. was required to attend court on her criminal charges but could not locate her. [ 23 ] V.F. made no contact and had no communication with the Director for over two years from the time of G.D.F.’s birth in [omitted for publication].

The Director’s June 23, 2014 Application for Continuing Custody of G.D.F. and her siblings was adjourned multiple times from June 28, 2014 to July 18, 2016, due to the difficulty in trying to serve V.F., K.D., and the biological father of T.H.

The first time the Director was able to locate and communicate with V.F. about her children following G.D.F.’s birth was on June 17, 2016, while V.F. was being held in custody at the Prince George Regional Correctional Centre. [ 24 ] On April 6, 2016, K.D. and his parents (G.D.F.’s paternal grandparents) had a mediation session with the Director concerning all four of the children. V.F. did not participate as the Director had still been unable to locate her at that time.

During that mediation it was agreed the Director would adjourn the CCO Application for J.D., D.D. and G.D.F. in favour of seeking a temporary custody order for those three children. It was agreed that T.H., who was not K.D.’s biological child, would be placed in the continuing care of the Director. The plan was to place K.D.’s two sons in the home of their paternal grandparents under supervision, while G.D.F. remained in her foster home. At the time, K.D.’s parents expressed an interest in caring for G.D.F. but were concerned about their ability to assume responsibility for all three of these children.

They had only met G.D.F. a couple of times. Ms. Biddulph explained the Director agreed to adjourn the CCO Application for G.D.F., despite her remaining in foster care, because the hope was that G.D.F. may ultimately live with her paternal grandparents. The plan was to give the grandparents time to build a relationship with G.D.F. through visitations and to demonstrate a commitment to caring for G.D.F. during the period of temporary custody.

[ 25 ] On June 17, 2016, Ms. Biddulph met with V.F. while she was in custody at the Prince George Regional Correctional Centre. Ms. Biddulph served V.F. with a copy of the Director’s Application for Continuing Custody of the four children, including G.D.F., and explained the Director’s plan of care for the children as agreed to in mediation with K.D. and his parents. Ms.

Biddulph told V.F. that J.D. and D.D. would be placed with K.D.’s parents pursuant to a temporary custody order, that T.H. would be made subject to a Continuing Custody Order, and that the Director would obtain a temporary custody order for G.D.F. V.F. told Ms. Biddulph that she was being released next week and would immediately apply for legal aid. V.F. admitted to using crack and heroin but was hoping to get clean.

She promised Social Worker Biddulph to contact her to discuss future planning for and access to her children. [ 26 ] On July 18, 2016, the Director applied for temporary custody of J.D., D.D. and G.D.F. as set out in the mediation agreement. V.F. did not appear, however the Applications were granted by consent. [ 27 ] V.F. did not contact MCFD after her release from custody as promised, and Social Worker Biddulph was unable to locate V.F. or obtain any contact information for V.F. from her probation officer or K.D.

On August 15, 2016, the Director obtained an extension of the temporary custody order for G.D.F. to November 15, 2016. Again, V.F. made no contact with the Director and could not be located. This Application for a Continuing Custody Order was prepared by the Director on October 31 and filed November 8, 2016. [ 28 ] On September 16, 2016, Social Worker Biddulph created a Family Plan for G.D.F. with K.D.

Pursuant to the Family Plan, K.D. agreed to attend the Respectful Relationships course through Community Corrections, a separate ten week relationship violence program, weekly individual counselling sessions through the Friendship Centre, addictions counselling, and job training. The Plan was to be reviewed for progress on December 15, 2016. Ms.

Biddulph testified that as of February 21, 2017, K.D. had only completed the mandatory Respectful Relationships course through Community Corrections and nothing more. [ 29 ] On November 1, 2016, the Director again retained a bailiff to find and serve V.F. documents pertaining to the upcoming CCO hearing for her son T.H. On November 2, 2016, Ms. Biddulph was told by V.F.’s probation officer that V.F. had missed a September 30, 2016 court date on criminal charges and there was a warrant out for V.F.’s arrest. After searching, the bailiff was finally able to get a hold of V.F. through a facebook message.

V.F. originally agreed to meet the bailiff November 12, 2016, but she ultimately did not meet or have any further contact with the bailiff. [ 30 ] During the mediation between the Director, K.D. and his parents in April, 2016, it was contemplated that K.D.’s parents might assume care of G.D.F. after building a relationship with her. However, after assuming care of J.D. and D.D., K.D.’s parents only visited G.D.F. a couple of times despite financial and other support from the Ministry to try and facilitate that connection. K.D.’s parents told Ms.

Biddulph in January 2017, that they did not feel they were able to meet G.D.F.’s needs at this time and could not assume her care. Ms. Biddulph subsequently served G.D.F.’s paternal grandparents with the Temporary Custody Application for J.D. at which time they again discussed a plan of care for G.D.F. K.D.’s parents advised they could not provide care for her. [ 31 ] Ms. Biddulph testified there was no likelihood G.D.F.’s parents will be able to meet her needs or that circumstances will improve.

PLAN OF CARE FOR G.D.F. [ 32 ] Darcy Nord is G.D.F.’s guardianship worker and was authorized to give evidence for the Director. She testified that a Plan of Care was prepared for G.D.F. on September 26, 2016, which was filed in these proceedings. The Plan is comprehensive and speaks to G.D.F.’s personal, spiritual, cultural, family, health, emotional, education and developmental needs. [ 33 ] G.D.F. has been in the same foster home since birth. G.D.F. was placed in a home in Prince George because there were no other available resources for her in Fort St.

James, and because she required medical care available through the Prince George hospital as an infant. [ 34 ] The medical reports filed in evidence show that G.D.F. had health difficulties as an infant. Ms. Nord testified that G.D.F. is now in good health and generally meeting her developmental milestones, however she does struggle with delayed growth, motor and speech skills that require attention. G.D.F. sees a physiotherapist once a month due to intoeing with her right foot.

G.D.F.’s foster parent is working with the physiotherapist and does regular exercises with G.D.F. to improve her gait, balance, ability to descend stairs, and ride a bike. There are currently plans for consultation with an orthopedic surgeon to see if surgery can correct G.D.F.’s condition. [ 35 ] Ms. Nord testified that G.D.F. also has delayed speech. At the time of her last assessment at 24 months old, G.D.F. only had a 20 word vocabulary when a child of her age should have 200 words. Her foster parent requested the assistance of a speech therapist to work with G.D.F.

The Director pursued options through the Prince George Child Development Centre and G.D.F. was referred for speech therapy, however there is currently a lengthy wait list for regular intensive speech therapy. In the interim, G.D.F.’s foster parents conduct speech therapy exercises with G.D.F. at home following the instruction of the speech therapist. There was a request for a private therapist to accelerate G.D.F.’s access to speech therapy but the Ministry will not fund private therapy. [ 36 ] Ms.

Nord advises that G.D.F.’s foster parents have experience parenting children with speech delays and have a lot of education about that issue. They have developed a good picture based system with G.D.F. to aid communication and have been successful in motivating her to speak. G.D.F. can put together three word sentences but it is still difficult to understand her. [ 37 ] G.D.F.’s Plan of Care indicates that a genetic condition, Immune Thrombocytopenia, runs in G.D.F.’s family which can cause bleeding and bruising issues.

G.D.F.’s foster parents are alive to this potential medical issue and are prepared to follow up with an assessment at the first sign of any symptoms. [ 38 ] G.D.F. is enrolled in pre-school three days a week. With respect to her Aboriginal identity, the Plan is to connect G.D.F. to the Peavine Metis Settlement in Alberta where her great-grandfather resides. G.D.F.’s foster parents have visited G.D.F.’s great-grandfather with G.D.F. and are working hard to maintain contact. Ms. Nord advises that the Director is also working with the local Metis Cultural Centre in Prince George.

G.D.F. may be eligible for registration as a member of the Metis Commission in Prince George and the Ministry can pursue that avenue to preserve her Aboriginal identity. Ms. Nord testified that due to G.D.F.’s current status, her file is not

eligible to be transferred to an Aboriginal or Metis Child and Family Service Agency. [ 39 ] Ms. Nord advises that G.D.F.’s maternal grandfather has full Aboriginal status through the Sturgeon Lake Band. Ms. Nord contacted the band and was advised that since G.D.F.’s mother is not registered as a member they cannot register G.D.F. K.D. is a member of the Mikisew Cree First Nation, however because K.D. is not named as G.D.F.’s father on her birth certificate, the Mikisew cannot register G.D.F. as a member. G.D.F.’s birth certificate, which was filed in evidence, does not identify G.D.F.’s father. [ 40 ] Ms.

Nord says that there is potential that G.D.F.’s mother and father can be involved in her life, however, Ms. Nord has never met G.D.F.’s mother and has only ever spoken to G.D.F.’s father once. Currently, G.D.F.’s foster parents communicate with T.H.’s foster parents and the siblings have monthly contact. G.D.F.’s paternal grandparents also have a good relationship with G.D.F.’s foster parents and they set up times for J.D. and D.D. to visit with their sister. As such, the foster parents are maintaining G.D.F.’s contact and relationship with her siblings. [ 41 ] Ms.

Nord testified that if G.D.F. is placed in the continuing custody of the Director, adoption may be pursued given her young age and consistency of care since birth. Ms. Nord says she cannot guarantee future contact, however the Director does try to pursue openness agreements with adoptive parents. Such an agreement would allow G.D.F. to maintain contact with her siblings and parents down the road.

According to the Plan of Care filed in this proceeding, G.D.F.’s foster parents, to whom she is closely attached, have expressed an interest in pursuing permanent custody of G.D.F. if the Continuing Custody Order is granted. STATEMENT OF ISSUES [ 42 ] The following issues in this hearing are: 1. Should the Court consider the Director’s Application in the absence of V.F., K.D., the Misikew and Metis First Nations? 2. Should the Court dispense with the written consent of V.F., K.D., the Metis and Misikew First Nations pursuant to s. 60(3) of the Child, Family and Community Service Act ? 3.

Is G.D.F. a child in need of protection within the meaning of s. 13 of the Child, Family and Community Service Act ? 4. Should the Director be granted continuing custody of G.D.F., pursuant to s. 49(5) of the Child, Family and Community Service Act?

ANALYSIS Issues 1 and 2: Proceeding in the Absence of the Parties and Dispensing with Written Consent [ 43 ] In an Application for a Continuing Custody Order pursuant to s. 49 of the Act, notice of the hearing must be served on the child’s parents, a representative of any Aboriginal community of which the child is identified, and any person entitled to be made a party (s. 49(2)).

In this case, those persons would be V.F., K.D., the Metis Commission of BC and the Mikisew First Nation. [ 44 ] Pursuant to Rule 4(2) the CFCSA Rules, if a person who is served with an Application does not appear in court on the date and at the time and place set for the hearing, the judge may hear the Application and make the order applied for if the judge thinks it is fair to do so in the absence of that person.

Rule 4(3) provides that Rule 4(2) also applies to any Aboriginal band or community served with the Application. [ 45 ] K.D. had notice of the Director’s Application and expressly declined to participate, as such, it was fair to proceed in the absence of K.D. During the April 2016 mediation, K.D. told social workers that he did not expect to care for his children himself but was supporting the plan to place his children with his parents. K.D.’s parents have since indicated they cannot care for G.D.F.

Given the position of K.D. in this proceeding and his admitted inability to care for G.D.F., or propose an alternative plan of care for G.D.F., I find it is in G.D.F.’s best interests to dispense with K.D.’s consent pursuant to s. 60(3) of the CFCSA. [ 46 ] According to Ms. Biddulph, the Director prepared the Application for a Continuing Custody Order on October 31, 2016, and filed the Application November 8, 2016. The Application states a returnable date for hearing of November 14, 2016. Unfortunately, the Application was not served on V.F. prior to that returnable date and the hearing was adjourned.

Ten days later, on November 24, 2016, V.F. was personally served by a process server with the following documents:

a) the Application for a Continuing Custody Order in respect of G.D.F. (still stating the November 14, 2016 returnable date);

b) the corresponding Court Plan of Care setting out the Director’s intention to permanently place G.D.F. with family or an adoptive family;

c) a letter to V.F. from Social Worker Amanda Biddulph advising of the Director’s intention to seek a Continuing Custody Order in respect of G.D.F. on November 14, 2016; and

d) an Application to extend the Temporary Custody Orders for J.D. and D.D. [ 47 ] Ms. Biddulph testified that V.F. finally called her in December 2016, and they agreed to meet at a fast food restaurant on December 16, 2016. During that meeting, Ms. Biddulph served V.F. with the care orders for J.D., D.D. and T.H., and told V.F. that the Director had applied for Continuing Custody of G.D.F. Ms. Biddulph told V.F. she needed to maintain contact so V.F. could be advised of the ongoing court process and be involved in the planning for her children’s care.

V.F. said she was looking for housing and was staying with friends. V.F. made no further contact with the Ministry. [ 48 ] On March 22, 2017, the Director retained a bailiff to try and serve V.F. with notice of this hearing date. Attempts to locate V.F. at her last known address, local shelters, the probation office, and local jail were all unsuccessful. The Affidavit of Attempted Service of Bailiff Kim Semeniuk was filed as an exhibit to Ms. Biddulph’s Affidavit. In addition to the foregoing, the bailiff sent V.F. a message on

Facebook to contact her and left her business card with the various addresses and shelters Ms. Semeniuk attended looking for V.F. [ 49 ] On March 28, 2017, the Director noticed a new address for V.F. had been entered into the Ministry’s Integrated Case Management System and instructed the bailiff to attempt service there, which was unsuccessful. That same day, Ms. Biddulph personally attended this address in an effort to locate and serve V.F. Ms.

Biddulph was told by the residents of that address that V.F. and her boyfriend were in the process of moving out but did come in and out of that residence one or twice a day to drop off stuff. Ms. Biddulph left her contact information with these roommates and urgent instructions for V.F. to contact her about court proceedings concerning her children. The roommate told Ms. Biddulph that V.F. did not have a phone, and Ms. Biddulph suggested V.F. could use the one at the library. [ 50 ] V.F. did not contact Ms. Biddulph.

When the process server subsequently attended the same residence and spoke to the same roommates in an effort to serve the Application on V.F., the individuals denied knowing V.F. It was Ms. Biddulph’s view based on the history of service efforts that V.F. was trying to evade service. [ 51 ] I find that the Director has made all reasonable efforts to serve V.F. I find that V.F. has knowledge of the Director’s intention to make this Application; that she understood from her conversation with Ms.

Biddulph that this Application would be made imminently, and that she had ample notice and opportunity to appear, retain counsel, and otherwise communicate with the Director or the Court in order to participate in these proceedings. V.F. has made no efforts to communicate with the Director about G.D.F. since G.D.F.’s birth. She has made no efforts to keep the Director apprised of her whereabouts over the past three years.

When she was advised in June 2016 of the Director’s intention to obtain a temporary custody order for G.D.F., V.F. said she would get counsel and contact the Director once she was released from custody, but failed to do so. The only other time the Director was able to find her, being December 2016, V.F. again promised to communicate with the Director about the Continuing Custody Application for G.D.F. and then made no further contact.

The only time the Director has been able communicate with V.F. about G.D.F. is once when V.F. was in custody and during the meeting in December 2016, at a fast food restaurant. [ 52 ] I find that V.F. was aware of the Directors’ intention to make this Application and has chosen not to participate or inform herself of the status of these proceedings because she did not intend to oppose the Application. At the time of G.D.F.’s birth, V.F. indicated she did not expect to care for G.D.F. herself and was hoping G.D.F.’s paternal grandparents may care for her, which is no longer an option.

Even if V.F. did intend to oppose the Application, I find there has been considerable delay in addressing G.D.F.’s future care due to the history of multiple adjournments arising from the Director’s difficulty in locating and serving V.F. over the past several years. Any further delay to try and serve V.F. is contrary to G.D.F.’s best interests.

An order dispensing with the need for formal notice of the hearing date for this Application is appropriate in the circumstances. [ 53 ] Due to V.F.’s apparent unwillingness or inability to care for the child and her minimal engagement in these proceedings since G.D.F.’s removal, I further find it is in the child’s best interests to dispense with V.F.’s consent pursuant to s. 60(3) of the CFCSA . [ 54 ] According to Ms. Biddulph, the Metis Commission was served with a copy of the Director’s Application on November 8, 2016, but has never appeared or participated in these proceedings. On April 3, 2017, Ms.

Biddulph spoke to Wendy Chernirchan, designated representative for the Metis Commission for Children and Families of B.C. Ms. Chernirchan advised that the Commission supported the Director’s plan and believed (mistakenly) they had already provided written consent to that effect.

Given the Commission’s position and the Director’s commitment to preserving G.D.F.’s Metis heritage as set out in the Plan of Care and as attested to in these proceedings, I find it is in the best interests of the child to dispense with the written consent of the Metis Commission for Children and Families of B.C. pursuant to s. 60(3) of the CFCSA . [ 55 ] According to Ms. Biddulph, the Mikisew Cree First Nation was served with a copy of the Director’s Application on November 8, 2016, but has never appeared or participated in these proceedings. Ms.

Biddulph phoned the Athabasca Tribal Counsel for the Mikisew and was told G.D.F. was not a registered member of their Band and they had no position on the Application. The Director’s position is that the Band has no standing in these proceedings.

In these circumstances, I find it is in the best interests of the child to dispense with the written consent of the Mikisew Cree First Nation pursuant to s. 60(3) of the CFCSA . [ 56 ] In all of the circumstances, I find that it is fair to proceed with the Director’s Application for an order under s. 49(5) of the CFCSA in the absence of the aforementioned parties because they have had notice of the Director’s Application and have either expressly, or implicitly consented, or otherwise not opposed the Application, and it is in the child’s best interests to do so.

Issue 3: Is G.D.F. a Child in Need of Protection? [ 57 ] Pursuant to s. 13(

h) of the Act, a child needs protection if the child’s parent is unable or unwilling to care for the child and has not made adequate provision for the child’s care. Neither K.D. nor V.F. have demonstrated an ability or willingness to care for G.D.F. Both of G.D.F.’s parents expressed the hope that K.D.’s parents would look after G.D.F., but those grandparents stated they are not in a position to care for G.D.F. and are unable to meet her needs. There are no other extended family members who have been identified by the Director or G.D.F.’s parents as potential caregivers for the child.

I find that at the time of removal G.D.F. was, and still is, a child in need of protection. Issue 4: Should G.D.F. Be Placed in the Continuing Custody of the Director? [ 58 ] The guiding principles of the Child, Family and Community Service Act are set out in

Section 2: 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. [ 59 ] In this case, G.D.F.’s family is not intact and neither parent is able to care for her. G.D.F.’s mother has never engaged with the Ministry and has made no effort to see her daughter since birth. The Ministry has extended support services to G.D.F.’s father in an effort to assist him in becoming able to care for G.D.F., but K.D. has been unable to follow through on these services, has been in and out of jail, and admittedly is not able to care for her.

I find that G.D.F.’s foster parents and the Director have made adequate provision to maintain kinship ties between G.D.F. and her siblings and paternal grandparents and to preserve her Aboriginal identity. [ 60 ] The Director’s Application was brought pursuant to s. 49(5) of the Act as it was initially unclear if K.D. was interested in assuming care of G.D.F. It was at the commencement of this hearing that the Director was finally advised K.D. would not seek to care for G.D.F. and was not in a position to do so.

The Court notes that s. 49(4) provides for a mandatory Continuing Custody Order where a parent is unwilling or unable to resume custody of the child. [ 61 ] Section 49(5), under which this Application is brought, provides:

(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. [ 62 ] Section 49(6) sets out the relevant considerations in such an Application:

(6) Before making a Continuing Custody Order under subsection (5), the court must consider (

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

b) the plan of care, and (

c) the child's best interests. [ 63 ] I find that the circumstances that led to G.D.F.’s removal are not likely to improve in a reasonable time and G.D.F.’s parents are unable to meet her needs, as contemplated in s. 49(5) of the Act. In coming to that conclusion, I have considered the following criteria as set out in s. 49(6) of the Act:

a) V.F. and K.D. have a history of providing an unsafe and harmful environment for children in their care. All three of V.F.’s other children have been removed by British Columbia and Alberta child welfare authorities due to the presence of serious domestic violence and neglect arising from substance abuse. K.D. had a history of non-compliance with Ministry expectations and repeated incarcerations which made him unable to care for the children. V.F. was non-compliant with safety plans put in place for the children and was also unsuccessful at treating her addictions despite Ministry supports;

b) I find that the Plan of Care for G.D.F. adequately addresses her needs. It is unfortunate that there is no speech therapist immediately available to G.D.F. in the publicly funded system, however, this resource issue universally affects all children in this geographical region and is not the product of the care arrangement planned by the Ministry. G.D.F. has been with the same foster parents since her birth and enjoys a stable home life.

In addition to consulting with professionals, G.D.F.’s foster parents also have experience caring for children with developmental needs like G.D.F.’s and have been proactive in working with G.D.F. at home to address her speech and motor issues. Although G.D.F.’s parents originate from communities outside of Prince George, I find that Prince George is an appropriate geographical placement for G.D.F. given the better availability of medical professionals and programs to support G.D.F.’s special needs.

If G.D.F. is ultimately adopted, she will benefit from a stable home with parents attuned to her special needs. [ 64 ] The best interests of the child is the dominant consideration in this Application. That principle is explained in detail in

section 4 of the Act: 4

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

a) the child's safety; (

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

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

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

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

(

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. [ 65 ] I find it is in G.D.F.’s best interests is to be in the continuing custody of the Director for the following reasons:

a) G.D.F.’s parents are unwilling and unable to meet her needs and she has no other potential caregivers. While in the Director’s custody G.D.F. has enjoyed a safe and supportive home with the same caregivers since birth. G.D.F. is very attached to her foster parents and they have expressed an interest in providing a permanent home for G.D.F. if the Continuing Custody Order is granted;

b) G.D.F.’s tender age and developmental needs favour a stable and consistent home environment with caregivers who are prepared to work closely and intensively with medical professionals and at home with G.D.F.;

c) G.D.F. has a very limited relationship with her father, who has visited her only once or twice a year since her birth. G.D.F. has no relationship with her mother. G.D.F. has no current bonds with her parents that would be damaged by the imposition of a Continuing Custody Order. The Director has supported G.D.F.’s foster parents in maintaining connections between G.D.F. and her siblings through scheduled travel visits;

d) While G.D.F. will not be residing with caregivers who belong to her Aboriginal communities, the proposed Plan of Care makes reasonable efforts to preserve G.D.F.’s Aboriginal identity and cultural heritage through visitation with her great-grandfather on the Peavine Settlement and connection with the local Metis Cultural Centre;

e) Given G.D.F.’s age and level of development, it is not appropriate to consider her views, however, the evidence is that she is very attached to her foster parents; and

f) It would have a negative effect to delay making the Continuing Custody Order. Given G.D.F.’s young age she is a good candidate for adoption and would benefit from being permanently placed in a safe and stable home environment as part of a family. CONCLUSION [ 66 ] For the reasons cited above, I make the following orders:

a) that G.D.F. is a child in need of protection pursuant to s. 13(

h) of the Child Family and Community Service Act , as her parents are unable or unwilling to care for her and have not made adequate provision for her care;

b) pursuant to s. 49(5) of the Child Family and Community Service Act G.D.F. shall be placed in the continuing custody of the Director;

c) pursuant to s. 69(1)(

b) of the Child Family and Community Service Act , service of notice of the hearing date for the Director’s Application for continuing custody of G.D.F. upon V.F. is dispensed with; and

d) pursuant to s. 60(3) of the Child Family and Community Service Act , the consents of V.F., K.D., the Metis Commision and the Misikew Cree First Nation are dispensed with. ____________________________ C. P. Malfair Provincial Court Judge Province of British Columbia