Director v C. L. Date:, 2014 BCPC 115

Citation: Director v C. L. Date: 20140610 2014 BCPC 0115 File No: 1444428 Registry: Prince George 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: B. L. , born May 21, 2002 BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: C. L. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. K. KEYES

Counsel for the Director: S. Wagstaffe Counsel for the Parent: J. Reed Place of Hearing: Prince George , B.C. Date of Hearing: April 4, 2014 Date of Judgment: June 10, 2014 [ 1 ] This matter came before this Court for a Presentation Hearing, pursuant to s. 35 of the Child, Family and Community Services Act (CFSCA ). On February 18, 2014 at approximately midnight, a Social Worker for the Ministry for Children and Families (MCFD) apprehended B. L., an eleven year old boy, at the University Hospital of Northern British Columbia (UHNBC) when his mother was admitted to hospital under the Mental Health Act . The Director seeks an Interim Order pursuant to s.35 (2)(

a) of the CFCSA directing that the Child remain in the custody of the Director until a Protection Hearing. His mother, Ms. L., seeks his return. POSITIONS OF THE PARTIES Ms. L.’s Position [ 2 ] Ms. L. does not dispute that the apprehension of her son at UHNBC was proper. She agrees that she was incapable of looking after him at that time. The issue to be decided at this point is whether the Child should remain in the custody of MCFD pending the hearing of this matter at a Protection Hearing. [ 3 ] Ms.

L.’s position is that although she admits suffering from an episode of mental illness which properly resulted in the apprehension of her child by the Director, she recognized the fact that she was not well at the time, sought assistance by presenting herself to the hospital the very day she became ill, the illness was of short duration, it was a “one time event”, that she is managing her mental health at present such that there is no concern for her son’s wellbeing, and that she has a safety plan in place that would fully address her son’s wellbeing in the event of a recurring mental health episode.

The Director’s Position [ 4 ] The Director takes the position that Ms. L. was likely ill for several days prior to her attendance at UHNBC and that she attended there, not to obtain assistance with her mental health, but rather because attending there was part of her delusional state at the time. The Director submits that Ms. L. was clearly incapable of recognizing the symptoms of her mental illness at the time, and to this day has no insight into her mental illness such that the Court cannot be satisfied that she would seek assistance in a timely fashion. Further, the Director submits that Ms.

L. has isolated herself and, in particular, her child from almost all contact with the outside world, with the result that her child has no one to turn to for assistance should Ms. L.’s mental illness reoccur. The Director’s position is that Ms. L.’s mental illness condition manifests itself suddenly, she has no insight into her mental condition in order to seek help for herself or her son in a timely fashion on her own, her lifestyle is so isolated that no other persons are likely to intervene in a timely fashion to protect her son, and that as a result her son continues to be in need of protection.

THE EVIDENCE [ 5 ] The Director filed in Court a written report under s.35 (1). Viva Voce evidence was also called from Ms. Tamara Parker, the Social Worker in charge of the case, and Ms. L. also gave evidence. Based upon the Affidavit of Ms. Parker (Exhibit 1), testimony given by Ms. Parker and the medical records admitted as Exhibit 3 at the Hearing, the circumstances underlying the apprehension are that Ms. L. appeared at UHNBC on February 18, 2014 at approximately 22:53 in the company of the B. According to the triage nurse’s report contained in Exhibit 3, p. 5, Ms.

L. attended at the maternity ward “asking for a message and waiting for her baby… was paranoid and suspicious of staff, located in RAZ chairs and unwilling to move as ‘feels safe there.’ ” [ 6 ] Exhibit 1, the Affidavit of Ms. Parker, indicates that Cindy Wells, a Social Worker, attended UHNBC in response to a call from the hospital staff and spoke to Ms. L. Ms. L. told Ms. Wells that she was a member of a secret Facebook group that told her to get out of her house as she was not safe there, and that she had looked out her window and seen a drone hovering around her window. Ultimately Ms.

L. was admitted to the psychiatric ward at UHNBC under the Mental Health Act . [ 7 ] Ms. L. was interviewed by Dr. Geide on February 19, 2014 and again on February 26, 2014. Dr. Geide’s clinical report notes that Ms. L.’s account on February 19, 2014 was that she had not really slept for four days, having received clear messages of danger from the news, Facebook and her cell phone. She also advised Dr. Geide that on Sunday, (February 16 th ) she had battles with a number of demons. The threat she felt also had something to do with her son playing Angry Birds on his computer. She advised Dr.

Geide that she attended at UHNBC because a message told her to attend UHNBC to see a pregnant man there named Ian, which is why she was found on the maternity floor. She acknowledged that “all of this sounds very bizarre and she sees that we might have a hard time believing it, but she absolutely believes it and wants us to release her because she has a special purpose, probably to use her light to fight demonic forces.” (p. 6, Exhibit 3). At the time she was interviewed on February 19th, Ms. L. denied any previous episodes of mental illness, but

in his discharge report, Dr. Geide notes that she “now” admitted having a prior episode 20 years ago. [ 8 ] Ms. L. was admitted to the psychiatric ward at UHNBC. She was asked whether there were any family members who could look after B. and she mentioned a cousin, J. L., who was contacted and who refused to take B. under his care. Accordingly, B. was apprehended by Child Protection Services. Ms. L. remained in the psychiatric ward at UHNBC for nine days. B. has remained in the care of the Ministry since he was apprehended. [ 9 ] Ms.

Parker gave evidence with respect to the background information available from Ms. L.’s MCFD files and she spoke with the B. about life with his mother leading up to these events. Ms. Parker advised the Court that file information indicates that Ms. L. has a history with the Ministry that dates back a number of years. Ms. L. has two other children who were apprehended on February 28, 2004, along with B., due to a complaint that Ms. L. had “come at them” with a knife. The older children were placed in the care of their father, with whom they have remained, due to substantiated child protection concerns.

They have no contact with their mother. B. was placed with a friend of Ms. L.’s for several months, and ultimately returned to Ms. L. [ 10 ] B. attended Harwin Elementary School until sometime in January 2014 when his mother withdrew him from school. His attendance was poor and school records (Exhibit 4) indicate that he was absent or late almost every day from the start of school in September 2013. B. told Ms. Parker that he has almost no contact with anyone aside from his mother. He advised he no longer sees his grandmother or other relatives “because they are evil”.

He had never been taken to a dentist, explaining that he is afraid, because his mother had a bad experience. He has been to see a doctor very rarely. He says he does not play with other children, has no activities outside the house, and no contact with anyone in the community. He said that when his mum is “stressed out” she smokes more and drinks more. MCFD records include substantiated reports of Ms. L. drinking, but Ms. L., on the other hand, denies drinking. [ 11 ] Ms. L. gave evidence at the Hearing.

With respect to her history, she explained that the apprehension of her children several years ago had to do with her being “under stress” due to problems in her relationship with the children’s father. With respect to the events that led to her attendance at UHNBC, she says that she was aware the morning of her attendance at UHNBC that “something was not right” and that she went to UHNBC to seek help. She insisted that she was perfectly well in the days prior to February 18, 2014, when she decided to attend UHNBC. When confronted about her account to Dr.

Geide about not sleeping for four days and battling demons prior to her attendance at the hospital, and her account that she attended UHNBC because voices told her to attend there because a man was to give birth to a baby, she told the Court that she had no memory of the conversations she had with Dr. Geide. She offered no explanation for the difference between what she told Dr. Geide and her evidence in Court. [ 12 ] Ms. L. explained she works afternoon shift, so her son is alone every day that she works between three and midnight. She explained that she removed her son from school because he was being bullied.

She did not speak to school authorities about her bullying concerns. She explained that his almost continuous tardiness and absences from school occurred because he wanted to be home schooled. She spoke at length about the benefits to her son of home schooling him and how he has opportunities for social interaction when they attend the library together. However, it appeared from her evidence that she attended the library with him on only one occasion.

Of concern, her evidence on that point would appear to be contradicted by her son, who advised the Social Worker that he had no interaction with anyone in the community. [ 13 ] When asked if her son had friends in his age group, she advised that he had friends “at school.” When asked whether he played with those friends at home, she told the Court that they were “just friends at school” and he never saw them outside of school. Friends do not come to his home. I infer from that evidence that since his mother removed him from school he has not seen his friends.

She told the Court that he had friends to play with who were the grandchildren of her neighbours, but when asked whether they were age appropriate, she at first stated that the playmate was eight and then admitted that the playmate was in fact four years old, blaming her inaccuracy on Mr. Wagstaffe. [ 14 ] Ms. L. stated that she has put a safety plan in place, both to protect her mental health, and to protect B., in the event that she suffers another episode of mental illness. With respect to protecting her mental health, she advises that she meets with a mental health worker regularly.

However, the records pertaining to those meetings (Exhibit 5) indicate that Ms. L. has missed meetings, resulting in gaps of up to eight days between such visits. [ 15 ] With respect to a safety plan for B., Ms. L. advises that although she has no landline in her home, she always leaves her cell phone with B. at home when she is at work so that if there were a problem he could call her. She says that he can call or go to the neighbours if she were to become ill again.

There is nothing in her evidence indicating that this “safety plan” is a new one put into place since her last episode, nor is there anything in her evidence indicating that the neighbours are aware of the episode that led to B.’s apprehension or of the frailty of Ms. L.’s mental health or, indeed, that they are even aware that they are a part of her safety plan. There is no indication she has spoken to them at all.

What is fairly clear is that neither she nor B. called those neighbours for assistance during her last episode, since the only reason this matter came to the attention of the Ministry was the attendance of Ms. L. at the hospital. LAW [ 16 ] I must consider the guiding principles in s. 2 of the CFCSA , summarized by the learned Judge Tweedale in K.M.T. v. J.D.T., [1999] B.C.J. No. 822 as follows: 1. a child is entitled to be protected; 2. a family is the preferred environment for a child; 3. support services should be provided so a child remains with her family; 4. a child's views regarding custody are important;

5. kinship ties and the extended family are important to a child; 6. decisions about a child's life should be made within a reasonable time [ 17 ] S. 35 of the CFCSA provides that: 35

(1) At a presentation hearing relating to the removal of a child under

section 30, the Director must present to the court a written report that includes (

a) the circumstances that caused the Director to remove the child, (

b) an interim plan of care for the child, including, in the case of an aboriginal child, the steps to be taken to preserve the child's aboriginal identity, and (

c) information about any less disruptive measures considered by the Director before removing the child.

(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. [ 18 ] The test to be applied at a Presentation Hearing was stated by Mr. Justice Halfyard in Director v. M.H. 2008 B.C.S.C. No. 2701 , at para 40 as follows: [40] My reading of the Act and the authorities lead me to conclude that a provincial court judge presiding at a presentation hearing may make an order granting interim custody to the Director, where he or she is satisfied:

a) First, that at the time a child was removed, there were objectively reasonable grounds to believe that the child was then in need of protection, and that either the child’s health or safety was in immediate danger, or no other less disruptive measure that was available was adequate to protect the child;

b) Second, that at the time of the presentation hearing, there continued to be objectively reasonable grounds for believing that the two essential elements required by s.30(1) of the Act continue to exist; and

c) Third, that in the opinion of the judge, the degree or extent of the risk that a child will be harmed if returned to the parent is of sufficient magnitude to require that the child be kept in the interim custody of the Director, pending a protection hearing. ANALYSIS [ 19 ] In my view, there was evidence presented at the Hearing before me which, if believed, could cause a Protection Hearing judge to find that B. was in need of protection when he was apprehended.

It is clear that B. was in need of protection at the time he was apprehended because his mother was physically incapable of looking after him since she had been committed to the psychiatric ward at UNHNBC. However, in my view there is evidence to support the view that he was in need of protection due to his mother’s mental condition prior to her admission to hospital under the Mental Health Act ; the nurse’s notes and Dr. Geide’s reports indicate that Ms. L. was clearly delusional at the time and thus, in my view, mentally incapable of caring for her son in the real world.

The apprehension of B. under these circumstances meets the purposes of the Act under s. 2. [ 20 ] Ms. L. seeks the return of her child on the basis that there has been a change in her mental state since her release from UHNBC, such that her child is no longer in need of protection. The Director takes the position that it is too soon to tell whether Ms. L.’s mental condition has improved to that extent. [ 21 ] In my view there is some evidence before me that Ms.

L. is unable to acknowledge or recognize the symptoms of her mental illness, particularly in view of her evidence that she knows she was “perfectly well” in the days leading up to her attendance at UHNBC, in contrast to the account she gave to Dr. Geide in which she described battling demons “on Sunday” (several days prior to her attendance at UHNBC.) This lack of insight is current, that is, Ms.

L. demonstrated this lack of insight into her mental condition on the date that she gave her evidence in April. [ 22 ] Accordingly, I find there is some evidence upon which a Protection Hearing judge could base a finding that the Child is currently in need of protection. In any event, Ms. L.’s evidence is disputed by the Director and there is independent evidence (in the

medical records) which supports the Director’s allegations. Any such disputed facts must be resolved, at this stage, in favour of the Director: Director v. M.H. 2008 B.C.S.C. No. 2701, at para 34. [ 23 ] Further, I am satisfied that there is no less disruptive way in which the protection concern can be addressed, given the gaps in the mental health monitoring from Ms. L. when compared to the swiftness with which she became mentally incapable of looking for her son in February: a period of approximately four days, according to the medical records, and a period of only one day, according to Ms.

L. [ 24 ] Further, Ms. L. has chosen a lifestyle that isolates her son from school, friends, family members, and the community at large. As a result, there are no persons attending her home who might recognize the symptoms of mental illness in Ms. L.

As far as the “safety plan” involving B. seeking help from neighbours, it is not clear that there are any neighbours with whom B. is sufficiently familiar such that he might confide to them any concerns he has regarding his mother’s mental health, if, indeed, he were capable, as a child, of recognizing the symptoms of mental illness. [ 25 ] I am of the view that there is some evidence upon which to believe that the Child faces harm of a sufficient magnitude that he ought not to be returned to the care of his mother pending a Protection Hearing. Ms. L. told Dr.

Geide that the danger she felt had something to do with her son playing “Angry Birds” on his iPad; that she had battled several demons, and that she was in a situation of immediate threat. She also mentioned seeing a drone outside her window and receiving massages. In response to these messages, she went to UHNBC late at night to pick up a baby to be borne by a man. It is abundantly clear that Ms. L. was wildly out of touch with reality, and became that way, according to her evidence in Court, in only one day. In such a condition she is obviously incapable of caring for her son; indeed, as submitted by Mr.

Wagstaffe, in a hallucinatory state she might mistake the boy for a demon and do battle with him. Thus the potential harm posed is more than neglect; it could amount to actual injury. [ 26 ] Thus, I am not satisfied that there is any less disruptive method of protecting B. than that he remain in the care of the Director. Accordingly, I hereby order, pursuant to s. 35 (2)(

a) that the Child, B., remain in the interim custody of the Director pending a Protection Hearing. ____________________ S. K. Keyes Provincial Court Judge Province of British Columbia