Director v. V.D. Date:, 2012 BCPC 153

Citation: Director v. V.D. Date: 20120109 2012 BCPC 0153 File No: 14151 Registry: Kamloops 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: L.L.V.D , born [DOB] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: T.D.D. and G.C.V. PARENTS AND: K.D. and P.K. GRANDPARENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Director: T. Weiss

Counsel for the Parent, T.D.D.: C. Kane Counsel for the Parent, G.C.V.: B. Crow (articled student) Counsel for K.D. and agent for P.K.: C. Soll Place of Hearing: Kamloops , B.C. Date of Hearing: January 3, 2012 Date of Judgment: January 9, 2012 [ 1 ] This is the presentation hearing with respect to the removal of L.L.V.D. The grandparents are seeking return of L. under s. 35(2)(

b) or (

d) of the Child, Family and Community Service Act . [ 2 ] Following evidence from the social worker, C.R., and from each of the grandparents, K.D. and P.K., I am satisfied that the child ought to be returned to the grandparents. [ 3 ] The Ministry became involved with L. because of allegations of sexual touching made against her father; her apparent failure to thrive; and her developmental delays. As a result of a meeting with the parents at which time the grandparents were present, the Ministry said that they would be removing L. unless she was placed voluntarily with someone approved by the Director.

L. was therefore placed with the grandparents, being K.D. and P.K. [ 4 ] L. is just over two years old with significantly delayed speech and other health issues. She has numerous appointments with medical professionals, and many therapists and other developmental workers attending her grandparents’ home to assist in her development. [ 5 ] L. was placed with her grandparents in April, 2011. They adhered to L.’s various schedules. L. went to day care every week day.

She was showing some significant progress with her speech development and was gaining weight. [ 6 ] On December 14, however, two of the workers attending to L.’s care in her grandparents’ home witnessed an incident that disturbed them sufficiently that they felt the need to call the Ministry. L. had been going through a phase where she was hitting and biting. The workers witnessed L. hit K.D. Ms. D. took L.’s hand and slapped her own face with it. The workers told the social worker that they told Ms. D. at that point not to strike the child but to use time out. Ms. D. said they did not say anything at that point.

It was only when L. struck her again and Ms. D. smacked L.’s cheek with her own hand that the workers provided her with an alternative discipline suggestion. [ 7 ] There is some dispute over what actually transpired that day. The workers did not testify themselves and nor would the court ordinarily expect that they would do so at a presentation hearing. However, when having to weigh between hearsay evidence and direct evidence, particularly where that direct evidence is compelling and believable, the greater weight must be placed with direct evidence. I accept that the events transpired as Ms. D. testified.

However, even if the workers had in fact intervened after the first incident, it would not change the outcome of this hearing. [ 8 ] Following the report, an after-hours worker was sent out to see L. The after-hours worker was J.M. He noted no marks on L. He directed the grandparents to take her to a doctor. Up to that point, there had been no concerns about the grandparents as an appropriate placement for L. [ 9 ] Ms. R. then approached her team leader. They determined together that because this placement was a safety plan for L., they ought to remove her.

The concern was based entirely upon the presumption that if K.D. would smack the child in the presence of workers, there may be other more serious harms to the child in the absence of witnesses. [ 10 ] It was suggested that the grandparents are under a tremendous amount of pressure both financially and emotionally because of the high needs of L. Her care is demanding and her needs are considerable. There is no question that there must be tremendous amounts of pressure on this family to care for this child.

However, all evidence indicates that they complied with all of her scheduled needs and that some considerable progress was being made. There were no other concerns expressed about the care being provided by the grandparents. [ 11 ] Mr. V. supports the Director’s action and asks that his child not be returned to the grandparents. I heard a good deal of evidence about hostilities between the parties.

It does not go to the issue before me. [ 12 ] I am satisfied that if there were any merit to the very speculative concern that other forms of corporal punishment were being undertaken outside of the watchful eye of the public, there would have been some evidence of this beyond mere speculation through any one of the very many people who interact with L. [ 13 ] There are innumerable caregivers of one form or another attending the grandparents’ home who see L. on a regular basis. L. attends day care and is highly visible to other members of the public on a daily basis through the week. There was no attempt by Ms.

D. to conceal her corrective behaviour with L. Ms. D. also explained that she had learned the technique from the day care worker as a means to curb L.’s problem with hitting and biting others. [ 14 ] I am not satisfied that the Director has met the test that there was no less disruptive measure available. L. ought not to have been removed. There were any number of ways that this matter could have been dealt with that would have been significantly less disruptive, including addressing corporal punishment directly with Ms. D.

[ 15 ] At the outset of the hearing, Mr. Weiss raised a concern that I was not able under the Act to return the child under s. 35. Counsel for K.D. and T.D. both argued that s.35(2)(

b) and (

d) both apply. Section 35(2) provides: 35(2) At the conclusion of the hearing, the court must make (

a) an interim order that the child be in the custody of the director, (

b) an interim order that the child be returned to or remain with the parent apparently entitled to custody, under the supervision of the director, (

c) an order that the child be returned to or remain with the parent apparently entitled to custody, or (

d) an interim order that the child be placed in the custody of a person other than a parent with the consent of the other person and under the director's supervision. [ 16 ] Subsection (

a) is not an appropriate order to make in the circumstances. With respect to (

b) and (c), the Director says that K.D. and P.K. are not “the parent apparently entitled to custody”. This is because the definition of “parent” does not extend to the grandparents in this circumstance. [ 17 ] The definition of parent under s. 1 is: " parent" means (

a) the mother of a child, (

b) the father of a child, (

c) a person to whom custody of a child has been granted by a court of competent jurisdiction or by an agreement, or (

d) a person with whom a child resides and who stands in place of the child's mother or father but does not include a caregiver or director. [ 18 ] Custody is defined in the Act to include care and guardianship of a child. Guardianship is defined to include all the rights, duties and responsibilities of a parent. That is precisely who K.D. and P.K. are doing. [ 19 ] I find K.D. and P.K. are persons with whom a child resides and who stand in the place of the child’s mother or father. I am satisfied that I can make an order under s. 35(2)(

b) for an interim order that the child be returned to K.D. and P.K. under the supervision of the director. [ 20 ] Even if the grandparents did not meet the definition of parent I am satisfied that I could make an order under s. 35(2)(

d) for an interim order that L. be placed in the custody of K.D. and P.K. because they have consented to that placement. The fact that L. was removed from them does not preclude the court returning L. to them. I would make the order that it be under the Director’s supervision. [ 21 ] Apart from the term that the Director would want any return to be under the condition that there be no corporal punishment, no other terms were suggested. I direct that the matter be brought back before me at the earliest available date so that supervision terms can be addressed. ____________________ S. D. Frame Provincial Court Judge