Director v. J.M.B. and S.A. Date:, 2017 BCPC 102

Citation: Director v. J.M.B. and S.A. Date: 20170329 2017 BCPC 102 File No: 15627 Registry: Cranbrook 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: V.M.A. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: J.M.B. PARENT AND: S.A. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. GRANT SHEARD

Counsel for the Director: Ms. Michelle Fuchs Appearing on their own behalf: J.M.B. Place of Hearing: Cranbrook, B.C.

Date of Hearing: March 9, 2017 Date of Judgment: March 29, 2017 [1] These are reasons for decision with respect to the mother’s application filed November 30, 2016 for permission or leave toproceed with a hearing of her application pursuant to s. 54 of the Child Family and Community Service Act to cancel a continuingcustody order that I made on July 26, 2016 concerning her daughter, V.M.A., born [omitted for publication], now age 8. [2] The mother has filed a single page affidavit sworn November 3, 2016, a letter purportedly from V.M.A., and three letters fromcounsellors in support of her application. [3] The mother submits that there has been a significant change in the circumstances that caused the original order to be granted.

She says that she is no longer in an abusive relationship or any relationship at all. There is no longer any violence, illicit drugs, oralcohol in her life. She is now caring for her son, C.D. (born [omitted for publication], now age 14). She has no stress in her life and sheis working. She has joined Search and Rescue. She is now happy and stable. Five years ago she didn’t trust people and she hadnowhere to turn for help, but now she does. [4] The Director opposes permission being granted to proceed with a hearing to inquire further into cancelling the continuingcustody order. Ms.

Fuchs, counsel for the Director, submits that the circumstances which led to the continuing custody order beingmade was conduct by the mother which led the court to find that the mother caused V.M.A. emotional harm and put her at risk ofphysical harm. The Director submits that nothing in the letters from the mother’s counsellors indicate that she has acceptedresponsibility for that conduct or made progress in addressing the issues that led her to engage in that conduct. Ms. Fuchs notes thatthere was evidence in the hearing that led to the July 2016 order that the mother was already in counselling.

The Director says that anessentially bare confirmation of the mother continuing to attend counselling and the mother’s continuing self-assertion of change in herawareness and conduct is nothing new and not evidence that supports a realistic chance of arguing that there has been a significantchange in circumstances. [5] With respect to the letter purportedly from V.M.A. stating that she wants to go home, that is return to live with her mother, evenif that letter was written by V.M.A., which the Director does not accept, the Director submits that there was evidence at the hearing priorto the continuing custody order that V.M.A. was ambivalent in her wishes such that this too is not evidence of a significant change incircumstances. [6] The test for an application such as this has been articulated by Madam Justice Martinson in C.L. v.

British Columbia (TheDirector of C.F.C.S.), 2004 BCSC 172 , 2004 B.C.S.C. 172. The applicant must demonstrate a realistic chance of arguing thatthere has been a significant change in the circumstances that caused the original order to be granted. [7] The full facts and circumstances which caused that order to be made were set out in Reasons for Judgment which I gave thatsame date, July 26, 2016. A

summary of those facts and circumstances follow. [8] The mother has one other child, J.B., born [omitted for publication], now an adult. [9] The mother’s first involvement with child protection services began in Ontario in 1995 concerning her eldest child, J.B. Herfirst involvement with the Director of the Ministry of Children and Families in British Columbia began in 2003, shortly after she movedto Creston concerning J.B. and C.D. Between then and April 2014 the Director received 64 intake reports of neglect, violence andemotional abuse regarding one, two or all three of the children.

During that same time the mother had the almost continuous support of afamily advancement worker for close to six years. [10] In 2005 there was a finding that J.B. and C.D. were in need of protection. In 2011 there was a finding that all three childrenwere in need of protection. The mother neglected and physically abused both boys. She emotionally harmed all three children andplaced all three children at risk of physical harm. [11] In 2012 the mother was trafficking in marijuana.

In early April 2014 a home invasion occurred in the mother’s residence whereV.M.A. was living with her related to the mother’s production of marijuana in that residence. On April 17, 2014 the mother wassentenced to a cumulative jail sentence of two years. [12] The mother never received early parole, but she was released on statutory release in early August 2015. However, on August14, 2015 the mother committed the offence of mischief and she was returned to custody for parole violations.

She was next released onstatutory release in January 2016, but she was again breached and returned to custody February 1, 2016 where after she served thebalance of her full sentence ultimately being released on April 15, 2016. [13] The mother initially went to Calgary after her release but she moved to Cranbrook before the July 2016 continuing custodyorder. [14] When the mother was in custody and after her release she exercised all the contact or access she was able to with V.M.A. [15] In the hearing leading to the continuing custody order the mother gave evidence of programs she pursued in prison attempting to

cast herself in a positive light, but her parole officer in the prison gave evidence that the mother did not complete the core program which was a central requirement for early parole.

Behavioural counselling that parole officer arranged for her culminated with all three of those counsellors reporting that the mother made no progress in that counselling. [ 16 ] In the continuing custody order hearing the mother also gave evidence of counselling she received in Calgary and at the Cranbrook Women’s Centre after her ultimate release from prison. [ 17 ] In making the continuing custody order I found that the mother was not a credible and reliable witness.

I also found that the mother had repeatedly minimized anything which cast her in a negative light. [ 18 ] A central cause for the making of the continuing custody order was the mother repeatedly making poor choices over many years placing all her children at risk of physical and emotional harm and, at times, causing such harm. [ 19 ] In making the continuing custody order I found that the mother had failed to provide any independent evidence from the counsellors or service providers she had seen in Calgary or at the Cranbrook Women’s Resource Centre which supported her assertions that she had gained insight to her personal factors which had led to her pattern of making poor choices which had adversely affected the children or that she had objectively realized personal change reducing the likelihood of her continuing to make such inappropriate choices in the future. [ 20 ] The evidence now before the court that the mother has a residence in Cranbrook, she is not in a relationship, she is not involved in drugs or using alcohol, she is caring for C.D., and she is working, is nothing new.

Evidence of these things having already occurred or that the mother was working toward them was before the court in the continuing custody order hearing. [ 21 ] The letter purportedly from V.M.A. dated March 1, 2017 (Exhibit 7) wherein she says that she wants to come home, that is to live with her mother, is not evidence which could establish a significant change in circumstances.

There was evidence in the continuing custody order hearing that V.M.A. was ambivalent or oscillating at times between wanting to remain with her foster mother or return to her mother, but I found that ultimately she wanted to continue to live with her foster mother, but continue to see her mother. [ 22 ] I turn lastly to the letters of the mother’s counsellors dated August 23, November 28 and November 29, 2016 filed collectively as Exhibit 2. [ 23 ] Carly Martin writes that the mother has been receiving community based victim services for the residual effects of abuse and that she is exploring the power and control wheel, cycle of abuse, coping stances, and healthy choices along with the healing process. [ 24 ] Katie Chave writes that the mother is exploring effective communications, healthy coping strategies, self-exploration of strengths and challenges, and healthy choices.

She also attends a women’s therapy group which focuses on trauma, healing from trauma, and self-care. [ 25 ] Lori Clarke writes that the mother attends a trauma therapy group based in feminist trauma therapy that covers identifying personal trauma responses including anger and avoidance, identifying multiple coping strategies and factors of resiliency, trauma exposure, value identification and creating a personalized action plan with self-awareness.

She reports that the mother has been insightful, reflective and respectful. [ 26 ] In assessing the impact of these reports I recall that the circumstances that caused me to make the continuing custody order was the mother’s pattern of poor choices and behaviour that led her to emotionally abuse V.M.A. and place V.M.A. at risk of physical harm.

The context of that conduct was with 22 years of child protection history also involving her two older sons, almost six years of support from Family Advancement workers in Creston, repeated criminal conduct, resistance to programming in corrections and that the mother was found to be an untruthful and unreliable witness. [ 27 ] While the reports relied upon refer to terms or phrases such as “cycle of abuse”, “healthy choices”, “self-exploration”, “healing from trauma”, “coping strategies”, and “insightful”, they do not identify any factors specific to the mother which led her to the ingrained conduct which led to the continuing custody order or that she has clearly identified and, where appropriate, taken responsibility for those factors.

The reports do not demonstrate any objective evidence that, in the four months between the continuing custody order and the reports, the mother made any progress in realizing or moving towards qualitative changes in her conduct that caused V.M.A. emotional harm and placed her at risk of physical harm. [ 28 ] Accordingly, I find that these reports and all of the evidence of the mother collectively does not demonstrate a realistic chance of arguing that there has been a significant change in the circumstances that caused the continuing custody order to be granted and her application to proceed with a further hearing is dismissed. ______________________________ W.G.

Sheard Provincial Court Judge