DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2017 BCPC 14

Citation: Director v. B., et al Date: 20170118 2017 BCPC 14 File No: 1546554 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 CHILDREN: J.A.B. , born (omitted) K.L.B., born (omitted) L.L.N., born (omitted) BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: J.A.B. D.P.D. S.L.N. PARENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. T. DOULIS

Counsel for the Director: S.D.M. Wagstaff Counsel for the Mother: A. Oliver-Dunbar Counsel for the Fathers: Not Present Place of Hearing: Prince George, B.C. Date of Hearing: January 16, 2017 Date of Judgment: January 18, 2017 THE PROCEEDINGS [1] This is hearing of the Director’s Application filed for a continuing custody order, pursuant to s. 49(5) of the Child, Family andCommunity Services Act, for the children J.A.B., born (omitted) (“J.”), K.L.B., born (omitted) (“K.”) and L.L.N., born (omitted) (“L.”).

Iwill refer to J., K. and L. collectively as the “Children.” [2] J. and K. are the biological Children of J.A.B. and D.P.D. L. is the biological child of J.A.B. and S.L.N. [3] On February 26, 2015, Judge Gray made an interim supervision order pursuant to s. 33.2(2) of the CFCSA with respect to J.and K. Judge Gray further ordered, pursuant to s. 41(2.1), that J. and K. would remain in the care of Ms. B., without removal, under thesupervision of the Director pending a protection hearing. [4] L. was born on (omitted). [5] J., K., and L. were removed from Ms. B. and Mr.

N.’s care on March 18, 2015, in Prince George, B.C. [6] On March 19, 2015, the Director filed a Presentation Form 1 and a Report to Court Form A, which was amended on March 24,2015. [7] On June 19, 2015, Ms. B. and Mr. N. attended mediation with the social workers Shawna Washbrook and Jillian Powell. Thematernal grandmother, S.B., and the maternal step-grandfather, B.M., also participated in the mediation. At that time, Ms. B. and Mr. N.agreed to a regime which allowed them access to the Children, provided they were drug free. [8] On June 25, 2015, Judge Browning ordered, with consent, that: (

a) pursuant to s. 42.1(6)(

a) and 42.2(4)(

b) of the CFCSA, J. and K. would remain in the temporary custody of the Director for threemonths; and (

b) that pursuant to s. 35(2)(

a) of the CFCSA, L. would remain in the interim custody of the Director pending a protection hearing. [9] By Judge Browning’s June 25, 2015 Order, Ms. B. and Mr. N. were provided reasonable access to the Children, supervised, atthe discretion of the Director. [10] On February 4, 2016, April 28, 2016, July 28, 2016, December 22, 2016 and January 16, 2017, the Court made orders pursuantto s. 45(1.1) of the CFCSA extending the total time the Children could be in the temporary custody of the Director. NATURE OF THE PROCEEDINGS [11] The Director seeks a continuing custody order for the Children pursuant to s.49(5) of the CFCSA on the basis there is nosignificant likelihood that: (

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

b) the parentswill be able to meet the child’s needs. [12] A pre-requisite to the granting of a continuing custody order pursuant to

section 49 is a finding that each of J., K. and L. is inneed of protection: M.G. v. Director of Family and Child Services, 2007 BCSC 461 and B.B. v. British Columbia (Director ofChild, Family and Community Services, 2005 BCCA 46 . In this case, Judge Browning’s June 25, 2015 temporary custodyorder was made by consent of Ms. B. and Mr. N. and the Director pursuant to s. 60. Because the order proceeded by consent, there wasno finding made or any acknowledgment of any of the Children being in need of protection at that time.

Since that date, there has neverbeen a finding or acknowledgment of a need of protection for J., K. or L., but they have remained subject to a temporary custody ordersince June 25, 2015. The Director seeks a finding that each of J., K. and L. is in need of protection pursuant to s. 13(1) of the CFCSA. [13] By placing a child in the continuing custody of the Director, “the Director becomes the sole guardian of the person of the childand may consent to the child’s adoption” (s. 50(1)(

a) CFCSA). The order continues until (

a) the child reaches 19 years of age; (

b) isadopted; (

c) marries; or (

d) the court cancels the order or transfers custody (s. 53 CFCSA). NOTICE AND ATTENDANCE [14] The following persons were provided with a Notice of the Hearing of the Director’s Application for continuing custody of theChildren: J.A.B., D.P.D., and S.L.N. [15] On July 6, 2016, Jillian Powell personally served Ms. B. and Mr. N. with Notice of this Application and the court plan of careand filed a Certificates of Service on July 7, 2016.

[16] On July 21, 2016, Cliff Betz personally served Mr. D. with Notice of this Application and the court plan of care and filed aCertificate of Service on July 28, 2016. [17] On December 13, 2016, Linda Bolstad personally served Notice of this Application and hearing date on Mr. N. and filed aCertificate of Service on December 15, 2016. [18] On December 16, 2016, Charmaine Reaney served Mr. D. personally with a Notice of this Application and hearing date andfiled a Certificate of Service on January 3, 2017. [19] Ms. B. was represented before and at the hearing by legal counsel, Ms. Oliver Dunbar.

On January 16, 2017, Ms. OliverDunbar advised the Court that Ms. B. was in custody and did not wish to personally attend the hearing. Ms. B. took no position withrespect to the Director’s Application for a continuing custody order with respect to any of the Children. Ms. Oliver Dunbar attended thehearing as Ms. B.’s agent. [20] Neither Mr. N. nor Mr. D. attended the hearing, although duly notified and paged on the morning of the hearing. Neither Mr.N. nor Mr. D. was represented at the hearing by counsel.

I note that in December 2016, both had been served with a “Notice ofContinuing Custody Order Hearing to [an] Unrepresented Party to CFCSA Proceedings.” [21] Mr. D. has had virtually no involvement in K.’s life and has never participated in these proceedings. On December 20, 2016, J.and K. told social worker Jillian Powell they do not know their father and all they know is that his name is D.

EVIDENCE AT THE HEARING [22] The only evidence at hearing was that presented on behalf of the Director. [23] The facts upon which the Director bases its Applications are set out in the affidavit of Jillian Powell, Child Protection SocialWorker, from Prince George, B.C., sworn and filed January 9, 2017. [24] In addition to the affidavits referred to above, the Director also filed the following exhibits: a. Exhibit 1: Director’s Book of Court Document; b. Exhibit 2: Director’s Book of Documents; and c. Exhibit 3: Director’s Book of Access Visits.

Chronology [25] The affidavit and materials filed at the hearing construct a chronology of events as set out below. [26] The Ministry of Child and Family Development (MCFD) became involved with Ms. B. in July 2011. Since then, MCFDreceived concerning reports that Ms. B. and Mr. N. used street drugs and were involved in the drug trade. MCFD also became alarmedabout the poor conditions of their home, child neglect, and domestic violence. [27] On February 2, 2015, Ms. B. and Mr.

N. signed a family plan in which they agreed to abstain from drugs and alcohol, develop ahealthy and respectful relationship, and obtain adequate housing. This did not happen. Ms. B.’s urinalysis tests were positive foramphetamines even when L. was born on (omitted). On March 18, 2015, Social Worker Washbrook inspected the B./N. home andfound it marked with signs of violence, such as holes in the walls and doors and a cracked window. The cupboards were bereft of food;J. and K.’s beds were crawling with lice. The landlord was serving an eviction notice on Ms. B. and Mr.

N. for non-payment of rent,property damage, and smoking pot. [28] On June 19, 2015, Ms. B. and Mr. N. entered into a mediated agreement in which they would be permitted supervised access tothe Children on a number of conditions, which included their abstaining from consuming drugs or alcohol, or being under the influenceof drugs or alcohol in the presence of the Children. They were to submit to random urinalysis tests. Ms. B. agreed to attend, participatein and successfully complete the Northern Health Day Treatment Program. Mr.

N. agreed to attend and participate in drug and alcoholcounselling. [29] By this same agreement, the maternal grandparents, S.B. and B.M., were also granted reasonable access to the Children,supervised at the discretion of the Director. The terms of this mediated agreement were incorporated in Judge Browning’s June 25, 2015Consent Order. [30] Ms. B. and Mr. N. did not comply with the terms of the mediated agreement. Although not consistently, their urinalysis testsindicated they continued to use drugs such as marijuana, amphetamines, cocaine, and methamphetamines. They also missed scheduletests. Neither Ms.

B. nor Mr. N. completed their respective treatment and counselling programs. Jillian Powell subsequently heard thatMs. B. and Mr. N. had developed schemes to cheat the urine tests by substituting frozen or purchased urine. [31] Ms. B. and Mr. N. continued to use crystal methamphetamines and other street drugs, if only on occasion. They missed almostas many access visits as they attended. They continue to come in conflict with the criminal justice system. LEGISLATION AND AUTHORITIES [32] In Director v. L.(M.R.), 2009 BCPC 65 , stated at paragraph 50: 50

Section 49 must be interpreted by considering the CFCSA as a whole. The Act is principally concerned with the safety andwell-being of children.

Section 2 provides the guiding principles.

[ 33 ] I have considered the Child, Family and Community Service Act with particular attention being given to Sections 2 , 4 , 13 , 45 , and 49 as set out below:

Section 2 [ 34 ] In making any decision under the CFCSA , the “Guiding Principles” of the Act I must considered.

Section 2 provides as follows: 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. [ 35 ]

Section 4 references out the best interests of the child: 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. [ 36 ]

Section 13 sets out when protection is needed. It states in part: 13(1) A child needs protection in the following circumstances: ... (

d) if the child has been, or is likely to be, physically harmed because of neglect by the child's parent; (

e) if the child is emotionally harmed by (

i) the parent's conduct, or (ii) living in a situation where there is domestic violence by or towards a person with whom the child resides; ... (

h) 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; ...

(1.2) For the purpose of subsection (1) (

a) and (

c) but without limiting the circumstances that may increase the likelihood of physical harm to a child, the likelihood of physical harm to a child increases when the child is living in a situation where there is domestic violence by or towards a person with whom the child resides.

(2) For the purpose of subsection (1)(c), a child is emotionally harmed if the child demonstrates severe (

a) anxiety; (

b) depression; (

c) withdrawal; or

(

d) self-destructive or aggressive behavior. [ 37 ]

Section 45 speaks to total time in the temporary custody of the Director: 45(1) The total period during which a child is in the temporary custody of the director…must not exceed, from the date of the initial order until the child is returned to the parent or a continuing custody order is made,… (a) 12 months, if the child or the youngest child who was the subject of the initial order was under 5 years of age on the date of that order, (b) 18 months, if the child or the youngest child who was the subject of the initial order was 5 years of age or over but under 12 years of age on the date of that order, and (c) 24 months, if the child or the youngest child who was the subject of the initial order was 12 years of age or over on the date of that order.

On application the court may extend, by a specified period, a time limit in subsection (1) if the court considers it in the child’s best interests to do so.

(2) In this section, “initial order” means a temporary custody order made under section 41(1)(

b) or (

c) or 42.2(4)(

b) or (c). [ 38 ]

Section 49 governs continuing custody hearings and orders. It states, in part: Continuing custody hearing and orders 49(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.

(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.

(7) If the court does not make a continuing custody order, it must make one of the following orders: (

a) that the child be returned to the custody of the parent apparently entitled to custody; (

b) that the child remain in the temporary custody of a person other than the parent for a specified period of up to 6 months; (

c) that the child remain or be placed in the temporary custody of the director for a specified period of up to 6 months.

(8) If the court orders that the child be returned to the parent’s custody or remain in the custody of a person other than the parent, it may order that the director supervise the child’s care for a specified period of up to 6 months.

(9) Not sooner than 60 days before a temporary custody order under subsection (7) (

b) or (

c) expires, the director may apply to the court for a continuing custody order.

(10) If the director applies under subsection (9), the court after considering the factors in subsection (6) must make one of the following orders: (

a) that the child be placed in the continuing custody of the director; (

b) that the child be returned to the parent apparently entitled to custody. [ 39 ] Effect of continuing custody order: 50(1) When an order is made placing a child in the continuing custody of a director, (

a) the director becomes the sole personal guardian of the child and may consent to the child’s adoption, (

b) the Public Guardian and Trustee becomes the sole property guardian of the child, and (

c) the order does not affect the child’s rights respecting inheritance or succession to property.

(2) At least 30 days before consenting under section 13 (3) of the Adoption Act to the child’s adoption, the director must inform any person who, under

section 56 of this Act , has been given access to the child of the director’s intention to consent to the adoption. (3) Subsection (1)(

c) does not affect the operation of the Adoption Act .

(4) The director must send a copy of the continuing custody order to the Public Guardian and Trustee.

DISCUSSION [40] At issue is whether the best interests of the Children require continuing custody orders. None of the biological parents attendedat the hearing. The mother, Ms. B., was represented by counsel who did attend, but took no position with respect to the Director’sApplication. The only evidence before me was that presented by the Director. [41] In considering the Director’s Application, I have considered those factors set out in s. 49(6): (

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

b) the plan of care filed by the Director on July 6, 2016; and (

c) the best interests of each of J., K., and L. [42] I have also analysed each of the factors in s. 4(1) of the CFCSA. I take guidance from Judge Smith who said in Director v. B.S.and K.M., 2015 BCPC 337 : I do not question B.S. loves her children. I do not question the children love their mother. In addition to love, a parent needs to be able toproperly nurture and protect children. When B.S. demonstrates over a decade that she is unable to protect herself from dysfunction, thechildren can’t then be added into that dysfunction.

Love alone isn’t enough. [43] The history provided in the affidavit of Jillian Powell and the other materials filed in these proceedings indicate that since theChildren were removed, there has been little progress on Ms. B. or Mr. N.’s substance misuse, parenting skills, or instability. Both Ms.B. and Mr. N. were entitled to reasonable access to the Children at the discretion of the Director and offered opportunities and services toassist in their rehabilitation.

These services focused on drug and alcohol treatment and counselling, healthy relationships, parenting,coping, housing, budgeting, and accessing community resources. [44] Neither Ms. B. nor Mr. N. exercised his or her right to access to the Children in a consistent and responsible manner. They havenot engaged the available rehabilitative resources available to them in more than a half-hearted manner. Ms. B. and Mr. N. were, andcontinue to be, unable or unwilling to change their lifestyle to the degree necessary to resume custody of their Children.

It appears theycontinue to use street drugs and engage in criminal activity. While their lives remain chaotic and dysfunctional they are incapable ofproviding their Children with a safe, secure, and nurturing environment. [45] There is no significant likelihood that the circumstances that led to J., K. and L.’s removal will improve within a reasonabletime.

Section 45 CFCSA gives significant guidance of what is a reasonable time. Section 45(1.1) allows the court to apply a “bestinterests of the child” test in determining “reasonable time.” For a newborn infant such as L., the reasonable total period he should be inthe temporary custody of the Director is 12 months. For children such as J. and K., who were under the age of 12 at the time of theirremoval, the reasonable total period they should be under the temporary custody of the Director is 18 months. [46] J., K. and L. were removed from their parents’ care on March 15, 2015.

They were subject a Temporary Custody Order on June25, 2015. It is now January 18, 2017, so the Children have been in the temporary custody of the Director for over 18 months. [47] Since their removal J., K. and L. have been in MCFD approved foster homes, albeit J. and K. reside in a different foster homethan L. Still, the Director has ensured the siblings have time together. J. and K. attend school and all Children participate in ageappropriate recreational activity.

None of the Children are First Nations. [48] As of October 2015, the maternal grandmother, S.B., was not able to assume full-time care for J. and K. for health reasons. [49] The Director intends to seek a permanent plan for the Children’s future care without delay. This plan includes exploring theirplacement with an extended family member and adoption. [50] In conclusion, I find that each of J., K. and L. is in need of protection pursuant to section 13(1) of the CFCSA.

Further, I findthere is no significant likelihood the circumstances which led to the J., K. and L.’s removal will improve within a reasonable time or theparents will be able to meet those Children’s needs. I order that they be placed in the continuing custody of the Director, pursuant tosection 49(5) of the CFCSA. ACCESS [51] The authority for this Court to grant access to a parent, once a continuing custody order has been made, is given in

section 56 ofthe CFCSA. This application has been adjourned to a future date.

Section 56 reads: Access to child in continuing custody of director 56(1) If a continuing custody order is in effect, a parent or any other person may apply to the court for access to the child.

(2) At least 10 days before the date set for hearing the application, notice of the hearing must be served on (

a) the child, if 12 years of age or over, (

b) the director, and (

c) the parties to the proceeding in which the continuing custody order was made.

(3) The court may order that the applicant be given access to the child if access

(

a) is in the child's best interests, (

b) is consistent with the plan of care, and (

c) is consistent with the wishes of the child, if 12 years of age or over. [ 52 ] In considering how these sections of the CFCSA are to be applied, the British Columbia Court of Appeal set out the following principles in A.M. v. Director of Child, Family and Community Service, 2008 BCCA 178 : (

a) When a continuing custody order is made, parents lose the right of access to the child. Access then becomes a right of the child and not of the parent (Para. [26] and [27]). (

b) An order for access may exist alongside a continuing custody order (Para. [28]). (

c) Where a continuing custody order exists, an order for parental access is the exception, not the rule (Para. [29]). (

d) The principle of preserving family ties should only be a consideration in granting access, where a continuing custody order has been made, if it is shown to be in the best interests of the child, having regard to all relevant factors, including the security or health of the child (Para. [29] and [30]). (

e) An adoption which is in the best interests of a child who is the subject of a continuing custody order must not be hampered or jeopardized by the existence of a right of access (Para. [29] and [31]). (

f) Access to a child who is the subject of a continuing custody order should not be granted if its exercise would have negative effects on the physical or psychological health of the child (Para. [29] and [30]). (

g) Any access which is ordered for such a child must be consistent with the child’s plan of care (Para. [21]). (

h) These principles are binding on the Provincial Court in considering whether to make an access order in favour of a biological parent where the plan of care is for adoption. It is an error of law if a judge fails to exercise his or her discretion guided by these principles (Para. [32] and [33]). [ 53 ] Ms. Oliver Dunbar raised the issue of access at the hearing by way of oral application. By consent of counsel, she has until February 2, 2017 to file a written application. Further, by consent, the issue of access for Ms.

B. will return to court on February 9, 2017. [ 54 ] Counsel has agreed that I am not seized of the issue of the access issue. The Honourable Judge J. T. Doulis Provincial Court of British Columbia