Director of Family et al v. S.H. and P.H. Date:, 2014 BCPC 270

Citation: Director of Family et al v. S.H. and P.H. Date: 20140703 2014 BCPC 0270 File No: 15086 Registry: Abbotsford 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: M.D.H. , born in 2000 Z.H., born in 2003 J.E.H., born in 2004 H.H., born in 2014 BETWEEN: DIRECTOR OF FAMILY AND CHILD SERIVCES APPLICANT AND: S.H. and P.H. PARENTS ORDER OF THE HONOURABLE JUDGE G. BROWN

Counsel for the Director: R. Caldwell Counsel for the Parents: S. Jodway Place of Hearing: Abbotsford, B.C. Dates of Hearing: April 29, June 11, July 2, 2014 Date of Order: July 3, 2014 [1] THE COURT: These are my Reasons for Judgment in the matter of the H’s children, file 15086. INTRODUCTION: [2] This is a presentation hearing concerning four children, M.H. who is 13, Z.H. who is 11, J.H. who is nine and now H.H. whowas born in 2014. H.H. was removed at birth. The discharge from the hospital occurred on June 30th, 2014 and I understand she wasthen placed into foster care.

The parents of all these children are S.H. and P.H. [3] Although the removal of the three older children occurred on November 4th, 2013 we are not concluding the presentationhearing until now, July 3rd, 2014, some eight months later. This is most unfortunate. Presentation hearings are meant to be brief,summary hearings. Typically they result in orders which are returnable in 45 days. The Director has effectively had an eight-monthcustody order due to delays. The presentation hearing for the three older children was originally set for January 15th, 2014 but wasadjourned for a number of reasons.

First, one counsel was double-booked; second, the parents had just received the Director's affidavitand needed time to respond. [4] In addition to the very delayed presentation hearing in this case concerning the older three children, there are a number of otherconcerns: 1. Mother's counsel says the oldest child should have been informed of the time, date and place of the presentation hearing under s.34(3)(

a) of the CFCSA. This is true. M.H. is now 13 and she should have been advised of the hearing place and date. However, Iunderstand M.H. is fully aware of the order the Director is seeking. She wrote a note March 10th, 2014 expressing some of her views onhow she feels about some of the live issues in this proceeding. 2. There is also a concern that M.H. being 13 years of age requires counsel. Pursuant to s. 39 parties are not even established until theprotection hearing stage. For M.H. to get counsel, she needs to be a party first and that does not happen at the presentation hearingstage.

Even at the protection hearing stage it may be that M.H. does not need to be made a party; she may simply need someindependent legal advice depending on the application made by the Director. 3. Earlier, parents' counsel asserted that there had been inadequate disclosure in this case. However, I again remind everyone that this isa presentation hearing.

Section 64 disclosure obligations are to parties and parties are not established until the protection hearing unders. 39. I do agree that the Director is required to provide some disclosure at the presentation hearing stage, in particular the Report toCourt and possibly an affidavit. I note that an unsworn affidavit was provided to parents' counsel as early as January 15th, 2014. In anyevent, at my direction the Director has provided visit reports and social worker notes in this case because so much time has passed sincethe removal of the three older children. ISSUE: [5] The major issue here is what order is to be made under s. 35 of the CFCSA. A presentation hearing is a

summary process andis not designed for the court to be making evidentiary findings based on credibility. I am also not making any findings as to whether thechildren are in need of protection. I am here to ensure the Director had reasonable grounds for the removal and to see if there may havebeen less disruptive measures. At paragraph 41 of the case of Director v. M.D.C. and P.P.K.T. 2007 BCPC 382 , 2007 BCPC0382 Judge Baird Ellan summarized what a presentation hearing entails: At a presentation hearing the Court must consider whether the removal was made in accordance with the legislation.

That entails acursory determination of whether the child was at the time of removal apparently in need of protection, and as well that there were noless disruptive measures. The process is a

summary one and there is a presumption, essentially, in favour of the Director, unless it isshown that the removal was not made properly . . . BACKGROUND MINISTRY EVIDENCE: [6] In this case the Director has had some ongoing concerns with the H’s family since 2004. These concerns include drug use byboth parents, neglect stemming from drug use and domestic violence. In April of 2012 there was a domestic incident between the parentsstarting with P.H. assaulting S.H. and ending with Mom slapping Dad across the face.

In August of 2012 the children were removed dueto reports of drug abuse and Dad breaching a no-contact order. The children were also said to be unkempt. [7] In January of 2013 the children were returned to the mother under a supervision order after both parents completed drugtreatment. During the supervision order the mother engaged with Bob Gaskell and Mental Health Services. However, she was

struggling with parenting. The father had relapsed. He tested positive for cocaine in the early summer of 2013 but the mother's drug test was clean. Nevertheless, the mother was struggling with parenting and services were offered such as family counselling and parent outreach. There was little follow through. During the spring and summer of 2013 the father was still bound by a probation order which included a no-contact order. He was arrested for one breach. [ 8 ] Unfortunately, in September 2013 the mother admitted she had relapsed and was using crack cocaine.

S.H. was also continuing to feel overwhelmed with caring for the children. To the mother's credit, she placed the children in voluntary care to address her relapse. The children stayed with the previous foster parents. The mother had gone to Peardonville but she admitted to the social worker that she left treatment around mid-October 2013 as she was not getting anything out of the treatment program. Mother's plan was for some drug and alcohol counselling. [ 9 ] A formal removal occurred on November 4th, 2013; and that is of course a formal removal of the three older children.

The social worker's concern was that the mother had not addressed treatment or her triggers for drug use. The drug use results in a potential for neglect. The children had issues about going hungry, wetting beds and hygiene. According to the foster parent, all three children had bedwetting issues when they came into care.

The bedwetting increased for the children when the mother had overnight visitation. [ 10 ] Overnight visitation was a demonstration of progress for the mother, but the overnights ended in March of 2014 or perhaps a little earlier, because the father was present during some visits and the children were apparently told not to tell the foster parent or social worker. Mother's visitation to the older children then reverted to supervised access once per week for two hours or even less. During the visits Mother had some trouble with parenting and dealing with boundaries and behaviour.

The father had tested positive for cocaine and marihuana in March of 2014. The children have written notes requesting to stay in care for the time being, but the parents are concerned that the children have been unduly influenced to write these notes. At the time of the removal of the older three children on November 4th, 2013 the social worker said there was no other family member available. This, by the way, appears to be confirmed by the mother's evidence. By way of update, Ms.

Godbehere confirmed that the mother had a clean drug test as of May 17th, 2014. [ 11 ] The social worker still has the following protection concerns with P.H. First, he had last tested positive for cocaine and marihuana. He needs a relapse prevention plan. Secondly, there are still unresolved problems between P.H. and S.H. The social worker is not clear on their status as a couple and is unaware of any recent relationship counselling. On a positive note, the social worker said that P.H. sees his parenting support worker, he is now working, his probation is finished, but she is unsure of his housing situation.

The social worker later acknowledged in cross-examination that his visits have been going really well. [ 12 ] For S.H., the concern regarding the older children remains her parenting of those three children, i.e., structure and boundaries. S.H. does have a clean drug screen and she has connected with adult mental health. The social worker believes the mother has a new drug and alcohol counsellor. The mother also continues to work with a parenting support worker, Stacey Baron, but this has been inconsistent.

Exhibit 5, the Family Development Response Program report shows that the mother has not made progress as of April 2014 in terms of the goals she has set for herself. [ 13 ] Each parent has been seeing the older children once per week on a supervised basis, and in my view this little amount of access was a concern. However, the Ministry is dealing with children's activities, a lack of resources and school days and I will address the access later in my reasons. [ 14 ] In cross-examination the social worker, that is Ms.

Godbehere, admitted that the parents had previously enrolled children like J.H. in a language program. She realizes the parents identify as aboriginal, but Xyolhemeylh needs further paperwork in this regard. [ 15 ] I was actually glad to see the social worker took the children to lunch individually. It is a setting away from both the parents and the foster parents. I should add that it was clear that Mother was pregnant during this proceeding and now of course she has given birth to H.H. on (DOB).

I have also learned that unfortunately, the children are moving and in fact may have already moved to a new foster home. The first foster home was only envisioned for the three-month voluntary care agreement. [ 16 ] In June of 2014, M.H. was at Children's Hospital undergoing back surgery. Apparently the problem with M.H.'s back was addressed by the foster parent. The social worker admits that M.H. still struggles in school but she was in Homework Club. [ 17 ] The social worker, Ms. Godbehere, has provided the mother with a family plan.

Social worker Godbehere maintains that Mother's visits should continue to be supervised despite having a clean d rug screen. I have heard today that the Director may have been looking for more of a supervised access regime. The social worker feels Mother struggles with her visits and the access supervisor has had to intervene at times. For Dad's visits to be unsupervised, a clean hair screen is required. His hair needs to grow out for that test. His residence also needs to be checked. The social worker also felt that a return under supervision order would not address the Ministry's concerns at this time.

PARENTS' EVIDENCE: [ 18 ] The mother S.H. gave evidence in the presentation hearing on June 11th, 2014 and July 2, 2014. S.H. described her difficulties with drug use. She was using crack cocaine in August of 2012 when the children were first removed. S.H. then went to Peardonville for three months. S.H. stayed clean between November 2012 when she completed Peardonville, until about July of 2013 when she used marihuana. The more concerning lapse was in September of 2013 when she used crack cocaine one evening. S.H. spoke with social worker Godbehere in September of 2013 to get some help.

She wanted to get back into treatment so she agreed for the children to go into foster care under a voluntary care agreement. S.H. only stayed in Peardonville from October 14th or 15th, 2013 to approximately October 25th, 2013. She found it hard to stay focused on her classes. She was concerned she was pregnant and her hopes for reconciliation with P.H. were fading. S.H. now has no plans to reunite with P.H.

S.H. emphasized that she still saw Nicole for counselling throughout this period. [ 19 ] S.H.’s visitation with her three older children went from semi-supervised in the fall of 2013 to unsupervised (i.e., even overnights in her home) in February of 2014. S.H. had a clean drug test. However, the visits were pulled back to supervised weekly visits when the Ministry discovered that P.H. was at the home visits. S.H. was not aware that P.H.' presence was not permitted. S.H.

said the children were never asked to lie about P.H.' presence but they felt they had to lie about the situation. [ 20 ] In terms of H.H., S.H. said she suspected she was pregnant in October 2013. She has been drug-free (except THC) since September 2013. She maintained regular prenatal care with Dr. Edelson. S.H. commented on her work with Stacey Baron. The work was to include budgeting, parenting and conflict resolution with her three older children. S.H. admitted that she and the older children tend to fight. Those were her words. S.H. has missed a few sessions with Ms.

Baron even though some sessions were to occur in her home. She has signed another three-month contract with Ms. Baron. [ 21 ] In cross-examination, S.H. admitted that there were no family members available to take the three older children when she entered into the voluntary care agreement in September/October of 2013. As to the status of her relationship with P.H., S.H. says she is filing for divorce. Their relationship was an on again, off again relationship in the past. P.H. has been bound by no-contact orders in criminal proceedings and he has breached those orders.

No couples counselling or relationship counselling has been undertaken. S.H. lives in aboriginal housing in Mission in a four-bedroom home. She currently sees a drug and alcohol counsellor and mental health counsellor once a week. Ms. B., sister of P.H.: [ 22 ] Ms. B. is the sister of the father, P.H. She feels the parents are doing well. P.H. is seeing a counsellor, and S.H. is in drug and alcohol, mental health counselling and she has the support of family. Ms. B. has offered to be a support for H.H. but only until July 10th, 2014 when she will be leaving town for a trip. MS. SUTTON-ATKINS: [ 23 ] Ms.

Atkins is a midwife connected to the Abbotsford hospital. She had issues with how the Ministry handled the removal of H.H., and I will not address these here except where they touch on the Ministry's grounds for removal of H.H. There is a separate complaint process when someone such as a hospital employee is upset with the conduct of a social worker. There does appear to be gaps in communication between the Ministry and the hospital concerning the removal of H.H.

I should say that a social worker's interaction with hospital personnel is sometimes very tricky because the social worker has to bear in mind confidentiality. [ 24 ] Ms. Atkins' first concern was that the Ministry did not properly explore placement of H.H. with family members such as Ms. B. Ms. Atkins' second, and in my view, her greatest concern was Mother's ability to breastfeed H.H. The first two weeks of breastfeeding are critical. Formula is far less ideal and in the words of Ms. Atkins, it could even be harmful, but even a breast pump can be problematic.

First, with the breast pump there is no biological connection between mother and child; secondly there are logistic issues in getting the breast milk from the mother to the child. A child should be breastfed as often as eight times per day. Thirdly, there can be contamination issues. Fourthly, pumping milk does not allow for the same letdown of breast milk as actual breastfeeding. H.H. did stay in the hospital from birth on June 27th, 2014 to June 30th. [ 25 ] Since then I understand the mother has had one visit where she breastfed the baby. There may have been more since the writing of my decision. Ms.

Atkins also felt the mother was capable of caring for the infant, from what she observed. There was no indication of drug use and S.H. had family support. S.H. had good mothering skills. Ms. Atkins was surprised the Ministry had decided to remove as early as May 6th, 2014 given that she was told they were undecided. I should add that Ms. Atkins does not know of the Ministry history with the H.’s family to any great extent. DR. EDELSON: [ 26 ] Dr. Edelson is an experienced medical practitioner who has delivered about a thousand babies.

He felt strongly that the Ministry's removal of H.H. was atypical and the interactions with hospital staff were poor. He wrote a letter expressing concern about the Ministry's statement that there was no medical reason for continued hospitalization of the baby and the Ministry's request to have a reporting every six hours. He was surprised about the removal of H.H. for the following reasons: 1. S.H. was drug-free throughout the pregnancy; 2. She had excellent prenatal care; 3. She had family support. [ 27 ] Dr. Edelson also did not feel S.H. was a flight risk.

He was of the view that breastfeeding was best for the first six months of a child's life and typical feedings are six to eight times per day. He felt the child, that is H.H., was better off with the mother in hospital than in a foster care situation. Dr. Edelson was not entirely aware of the mother and father's current relationship and he had never been in the mother's home. He was not aware of the father's dirty drug screen in March of 2014. Dr. Edelson did say that P.H. was doing much better now that he was being treated for adult ADHD. ANALYSIS: 1.

The grounds for removal of the three older children: [ 28 ] First of all, I want to credit S.H. for notifying Ms. Godbehere of her lapse in September of 2013. Her decision to place the children in voluntary care was undoubtedly a difficult one but she realized she needed drug treatment. However, it is clear that protection concerns increased for the older three children when S.H. chose to leave drug treatment. She had no clear plan on how to address her drug use or her triggers. She was also having trouble coping with the three children on her own.

It must also be remembered that her relationship with P.H. was purportedly finished. He had drug issues and there was ongoing concern of domestic violence. In my view, when S.H. chose to leave Peardonville there was a heightened protection concern for the older three children because she had not addressed her drug lifestyle issues and she could cancel the voluntary care agreement at any time. A removal was the only way to ensure the children would stay in foster care pending some further steps taken by the mother. Even S.H. herself must have recognized that it

was best for the children not to be in her care because she was the one who put them in foster care in the first place. I also note there is a history here of drug use treatment and then lapses. For example, there is a removal in August of 2012 because of drug use, both parents get treatment, there is a return under supervision in January of 2013 and then both parents struggle with drug use again. [ 29 ] The protection concern here for the three older children is neglect due to the drug use itself or due to the lifestyle issues surrounding drug use and recovery.

Domestic violence is one such lifestyle issue that pervades this file. The harm caused to the children by neglect is often difficult to pinpoint. We do know that the children have mentioned going hungry at times, and they all have bedwetting issues, even M.H. who is 13. [ 30 ] In my view, the protection concerns for the three older children still persist but things appear to be improving for both parents. S.H. has a clean drug screen but she has not met goals she had with Stacey Baron and she struggles at times during the access visits.

P.H. is now working and his visits are going well, but he needs to be drug tested and he needs a relapse prevention program. For the older three children, an interim supervision order is premature at this stage, but that should be the goal for all concerned. It is up to the parents to demonstrate sustained change. They must stay away from drugs and have a relapse prevention plan. They must resolve the status of their relationship, and S.H. must demonstrate that she can parent three children with appropriate structure and routines. S.H. herself admits she has conflict with her three older children.

S.H. needs greater success with Stacey Baron. The worse scenario would be a return of the three older children to Mom and then a re-removal down the line. 2. Grounds for removal of Baby H.H. [ 31 ] My comments above also apply to the newborn baby H.H. The worst thing would be a return to Mom and then to see a subsequent removal. That said, I appreciate that the protection concerns for baby H.H. are less than those which existed for her siblings at the time of their removal in November of 2013.

Mom has been clean for some time but she really has not undertaken significant intensive treatment since the failed attempt with Peardonville. S.H. was very appropriate with her newborn in the hospital. According to Ms. Atkins and Dr. Edelson, S.H. showed good mothering skills with H.H. and there was a major concern for all about preserving the mother-infant bond for breastfeeding purposes. [ 32 ] Having said all that, I am acutely aware S.H. has trouble handling her other three children for even short visits.

As I have stated, the grounds for removal exist for H.H., but they are less acute than the grounds that existed November of 2013 for the older children. The mother has greater difficulty handling the three older children who are obviously at least somewhat aware of their parents' shortcomings. All three older children have expressed reluctance to return home until there is real change. Undoubtedly the baby is easier for S.H. to handle one-on-one. There is a clear divergence of opinion between the hospital staff and the Ministry, but the hospital staff are not aware of the entire Ministry involvement here. Dr.

Edelson and Ms. Atkins are passionately supportive of S.H. S.H. had good prenatal care, the baby is healthy and the mother is currently drug-free. However, Dr. Edelson has never been to the mother's home. He is not aware of Mother's inconsistency with service providers like Stacey Baron and he was not fully aware of P.H.'s dirty drug screen in March of 2014. Dr. Edelson is also not clear about the mother and father's current relationship. I must say that I am not entirely clear either. [ 33 ] For H.H., I need to balance the desire to preserve the mother-infant bond with the infant's vulnerability.

While it always preferable for H.H. to be regularly breastfed at her mother's side, if H.H. were neglected in the Hughes home she could not speak for herself. In the end, the safety and wellbeing of H.H. is paramount, even to the goal of preserving the family unit. Looking at all the evidence, I find it difficult if not impossible to say that the protection concerns here are reduced enough for a newborn to go home but not reduced enough for a nine, eleven and thirteen-year-old to go home.

It is true that S.H. is likely to be more successful in caring for one infant than all four children together, but a return of H.H. under supervision is premature at this early stage. Again, I emphasize that a supervision order should be the goal for H.H. and I expect that as soon as some progress is made, the Ministry should look at returning H.H. first on a gradual basis. By progress I mean Mom continuing to stay clean of drugs, Mom resolving her relationship with P.H. one way or the other and Mom improving with Stacey Baron.

I have made my decision today to not return H.H. on the basis that S.H. will have virtually daily contact with H.H., and as discussed below I am significantly increasing Mother's time with H.H. beyond what was suggested by the Ministry. 3. Less disruptive measures [ 34 ] In my view, the less disruptive measure for the three older children was the voluntary care agreement, but that failed in part because Mom's plan with Peardonville failed. At the time of the voluntary care agreement, Mom placed the three older children with the prior foster parent. She did not choose or could not find a family member.

It is unfortunate that the foster home is now changing, but I do not see any evidence of a less disruptive measure such as family placement. Ms. B.'s offer is far too time-limited and involves only the baby H.H. It is peculiar that these family members did not come forward in September of 2013 when the other children went into voluntary care. As discussed above, a supervision order is premature for the three older children. [ 35 ] The removal of the three older children was originally what I would call a soft removal because the children were already with the foster parent under the voluntary care agreement.

However, there is a greater disruption now due to the change in foster homes. The removal of H.H. was much more intrusive, but given the limited options with other family, the only less disruptive measure would be a supervision order. I have already explained that a supervision order is premature at this stage. 4. Access [ 36 ] Although I have found there to be grounds for the two removals with no less disruptive measures, I was initially quite concerned about the access to the three older children.

The parents needed more time with the three older children than once per week for one to two hours to preserve the parental bond. We are only at the presentation hearing stage and the Director cannot foreclose any real possibility of a return of the older three children by minimizing the access at this stage. I appreciate the Director was not deliberately restricting the access. They have to deal with foster parents' schedules, the children's routines and minimal resources.

However, this once per week access was simply too little, in my view. [ 37 ] Insofar as S.H.'s access is concerned, I have now heard that her access to the three older children will be increased to Mondays

for one-and-a-half hours and Fridays for one-and-a-half hours. S.H. is currently clean of drugs. Her access reports show that she struggles at times, but it must be remembered that she parented these children around the clock under the prior supervision order and the Director was aware Mother was struggling then. I think there should be a blend of supervised and unsupervised visits if there are not the resources for increased supervised visits. I acknowledge that supervised visits work well for both sides. If there are issues the Director will have the issues documented.

If Mom is progressing that will also be documented. But if no supervisor is available, a short family visit serves to preserve the bond between the three older children and the mom. In my view, the mother should have a minimum of four hours per week with the older children. This could be achieved by ensuring one weekend visit is with all four children in addition to the Mondays and Fridays, but I leave that to be worked out by the Director. [ 38 ] The Director is now offering the following visitation for H.H.

For Monday one-and-a-half hours, for Tuesday, Wednesday and Thursday one hour each day, for Fridays one-and-a-half hours and one hour over the weekend. This is perhaps an acceptable minimum to allow for some breastfeeding, but there should be two longer weekly visits for five hours each which may or may not be supervised. If the Ministry wants those five-hour visits supervised and they do not have the resources, they may wish to consider the five-hour visit being in the presence of one of the relatives.

Alternatively, the visits could simply be unsupervised but added to one of the supervised visits so there is some monitoring to start or end the visit. [ 39 ] I should add that P.H.' access to all children is more problematic because his last drug test was not clean and he still needs be tested. He also needs to have his residence checked. I expect his access to stay as is until he can address those two concerns. [ 40 ] Having taken into account all of the discussion above, these are my orders: 1. Pursuant to s. 35(2)(

a) the four children shall be placed in the interim custody of the Director. 2. S.H. shall have reasonable visitation with the three older children, supervised at the discretion of the Director, to be a minimum of four hours per week. 3. S.H. shall have reasonable visitation with H.H. supervised at the discretion of the Director, to be a minimum of one-and-a-half hours on each Monday, one hour on each Tuesday, Wednesday and Thursday, one-and-a-half hours on each Friday and one hour each weekend.

In addition, S.H. will have two weekly visits with H.H. which are five hours each in length and which may be added to any other visit. 4. P.H. shall have visitation to all four children supervised at the discretion of the Director. 5. A protection hearing commencement date shall be set and that should be within 45 days of today, so I do not know what is counsel's pleasure on that, given holidays and everything else. G. BROWN Provincial Court Judge