Director et al. v. C.M. and C.W. Date:, 2013 BCPC 200

Citation: Director et al. v. C.M. and C.W. Date: 20130715 2013 BCPC 0200 File Nos: 11411 and 14661 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 IN THE MATTER OF THE FAMILY LAW ACT, S.B.C. 2011 c.25 AND THE CHILDREN: N.E.M. , born [DOB] and D.J.M. [DOB ] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: C.M. PARENT AND: C.W. GRANDMOTHER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C.J. ROUNTHWAITE Counsel for the Fraser Valley Aboriginal Children & Family Services Society: L. MacDonald Counsel for the Parent, C.M.: D. Petri

Counsel for the paternal Grandmother C.W. : D. Lacusta Place of Hearing: Abbotsford , B.C. Dates of Access Hearing: December 15, 2010; April 5, 26, 27, August 18, November 23, 2011 Dates of Continuing Custody and Guardianship Hearings: December 9, 2011; February 3, 10, 17, March 15, 16, July 19, August 23, September 14, October 22, November 2, 9, 23, 2012: February 14, 15, March 8, May 23, 24, 2013 Date of Judgment: July 15, 2013 [ 1 ] Eight year old N.E.M. and seven year old D.J.M. have been in care for almost seven years, all in the same aboriginal foster home.

They were apprehended due to hazardous home conditions and serious neglect. More recently, allegations of sexual touching have arisen, although their father was acquitted of criminal charges. The Director is applying for continuing custody pursuant to

Section 49 of the Child, Family and Community Service Act . As yet, no finding in need of protection has been made. The children’s mother consents to an order for continuing custody, while their father seeks to have them returned to him. If he is unsuccessful, the paternal grandmother seeks guardianship under the Family Law Act . Five issues are raised: - Were the children in need of protection at the time of their removal on October 10, 2006?

If so, - Is the father, C.M., able to resume custody at this time? or, - Is there no significant likelihood that the circumstances that led to the removal will improve within a reasonable time, or that C.M. will be able to meet the children’s needs?

If so, - Would an order for guardianship to the paternal grandmother be in the children’s best interests? or, - If a continuing custody order is made, would access to the father be in the children’s best interests, and be consistent with the plan of care? [ 2 ] At the request of counsel, I have considered the evidence given at the access hearing, as well as the numerous days of trial. I have carefully reviewed the evidence of each witness, although I have not mentioned each one by name.

From that evidence, and from the exhibits filed, I make the following findings of fact. [ 3 ] N.E.M. (herein referred to as “N” and D.J.M. (herein referred to as “D”) were in need of protection at the time of their removal on October 10, 2006. In the preceding year, police had raised concerns about “abhorrent living conditions” hazardous for N, the then six month old child (intake September 2005, exhibit 20, tab 2 page 2). Police concerns included fire hazard, many used condoms lying about the floor, and clothes piled all over.

A social worker observed overflowing ash trays, dirty dishes, and a number of items on the floor that would be hazardous to a crawling infant: coins, dirty diapers, ice skates, and kitty litter. The parents cleaned up as instructed, but within two months, the hazardous living conditions had returned. In August 2006, a neighbour reported two incidents of seventeen month old N wandering out alone on busy 7 th Avenue, nearly hit by a car (exhibit 20, tab 2 page 23).

When social workers attended to investigate, they discovered three month old D had a very flat head from being left for long periods in a car seat, his bottle propped up, not being held, so as not to spoil him. By the time of removal, the foster mother described D (four months old) as tiny and skinny, back of the head “as flat as a pancake”, and when picked up, his legs remained in the cuddle seat position and would not straighten. He required medical attention. N (eighteen months) was underweight and had no language. Both arrived in soiled pyjamas, and smelt of mildew. [ 4 ] Pursuant to section 13(1)(

d) of the CFCSA , I find that both children had been, and were likely to be, physically harmed because of neglect from both parents. C.M.’s tendency to cast blame on the mother failed to recognize his equal responsibility to provide safe care for the children. Earlier efforts to maintain the children in the family home, relying on support services and extended family, had failed.

The parents had not taken the parenting courses or counselling as requested, and were living with extended family throughout this time, while the children’s safety and wellbeing were at risk. [ 5 ] Following removal, exhaustive efforts have been made either to return the children to the father, or to place them with extended family, as evidenced by the length of time that the children have been in care.

The father acknowledged that, by the fall of 2007, he had done little to address the issues (no parenting course, relationship counselling, or anger management) and agreed to long term planning with his sister, the paternal aunt. That fell through after only a couple of overnight visits given the extent of the children’s distress. In 2008 and 2009, planning reverted to the father, given his new relationship with K.G.M. While C.M. did not complete the requirements of the 2008 risk reduction service plan (exhibit 20, tab 5 page 61) or the 2009 mediation agreement (exhibit 20, tab 7 page 1), K.G.M.

most certainly did, and a transition plan was developed for eventual return of the children to C.M. and K.G.M., moving from supervised to unsupervised visits in the fall of 2009, gradually increasing in duration with an expected full return by July 2010. This slow transition plan was agreed to by all, and in my view, was entirely appropriate given all the circumstances, including the children’s ages and the more than three years of their being in care.

Such planning, and all access, came to an abrupt halt in March 2010, following disclosures by both children of sexual touching by their father. [ 6 ] Social worker, foster mother, and the children’s school all observed increasing behavioural problems as visits became unsupervised. N. changed from being bright and bubbly to quiet, weepy, and preoccupied with masturbation. D. became increasingly aggressive, having meltdowns at school, bed-wetting, and appearing afraid to go on visits.

C.M. and his mother C.W. also testified about D. hiding behind the seat of the foster parent’s van, crying and screaming that he was not going on visits. Certain physical actions by the children precipitated the disclosures. When the foster mother remonstrated N. for grabbing the foster mother’s bottom and crotch area, N. said daddy C.M. does that when he chases me up stairs. When the foster mother reprimanded D. for licking the foster mother’s fingers, D. yelled daddy C.M. does; he licks my bum.

A day later, when D. said the same thing in N.’s presence, she confirmed: oh yes he does, he licks my bum too; when he changes me.

A week later, N. called her father a tickling machine, saying that he tickles me everywhere (pointing to various body parts including her vagina), sometimes with his fingers and sometimes with his tongue, and I like it. [ 7 ] During police interviews in April 2010, when the children were simply told they were going on a field trip to the police station, D. (three years old) said daddy licks my belly button, daddy licks my bum; N. (almost five years old) did not make any disclosure, but appeared fidgety and distracted, at one point throwing crayons.

Criminal charges of sexual touching of both children were laid, but eventually stayed (the N. stay of proceedings before the preliminary hearing; the D. stay in Supreme Court). In September 2011, when N. (six years old) had broken a Barbie doll’s legs and was crying, she told the foster mother she was spreading the legs like daddy C.M. does to me when he looks at my private parts.

Again, she was not given the real reason for the subsequent police interview, where she appeared scared and apprehensive, and at first denied breaking the Barbie doll, before saying it was an accident, and denying daddy C.M. touched her. At the end of 2011, during the preparation of a parenting capacity report, both children spoke to registered psychologist Dr. Paul Eirikson (exhibit 2, page 21). N. said that her father had touched her in the privates when changing her clothes, and other times. She did not really want to go on visits because he touches her and scares her.

D. said spontaneously that his father licks him on the butt with his tongue, and that he did not want to visit. In January 2012, N. told the social worker that she liked that someone was watching during supervised visits so daddy C.M. can’t do bad things to me. When asked what bad things, she said tell scary stories and touch me in wrong places. When asked what wrong places, she referred to her genitals. [ 8 ] In the spring of 2012, both children were referred to the Sexual Abuse Intervention Program, with counsellor Alexandra Lanzarotta. D. was found to be too distracted, and was referred for play therapy.

At the fifth session, N. told Ms. Lanzarotta daddy C.M. touches me in the wrong places; he touches me right here (pointing to her vagina). At the eighth session, N. referred to her father having a touching problem; he touched her vagina with his mouth. When Ms. Lanzarotta talked to N. about the earlier police interviews she seemed to be confused about why she had been there, apparently thinking she was in trouble with the police for breaking the doll. N. told Ms. Lanzarotta that she tried to spread the doll’s legs apart like daddy C.M. had done.

Similar statements were made by N. during the third police interview in June 2012 (when she was actually told the purpose of the interview), which included: - daddy C.M. has a touching problem – touched my vagina with his mouth and his tongue; - I was a little shy to say stop – daddy C.M. couldn’t stop; - He was making a trick – he tried to get me to keep a secret, but I told [fosterparent]; - I’m having supervised visits so I’ll be safe – someone watching us; - If no supervisor, I’d feel icky.

In his evidence, the father CM denies the sexual touching, but said that after watching the police interview, he accepts that N. believes that something happened, that he had touched her. [ 9 ] When criminal charges of sexual touching of N. were reinstated, C.M. was acquitted. The trial judge found all of the witnesses to be credible, including both N. and C.M., but could not find N.’s evidence to be reliable, given her age, the length of time that had passed, and specific answers in cross examination.

When asked by defence counsel whether anyone told her to say that daddy C.M. put his mouth on her vagina, she said yes. When asked who, she at first said I don’t remember, but when asked (individually) whether Ms. Lanzarotta, the foster mother, and the social worker had told her to say that, she responded yes, to each one. The trial judge then asked her the same opening question, and she at first replied no, then yes, and when asked who told her to say that, she said the foster mother, before she spoke to the police.

In his Reasons for Judgment, the trial judge said while he frankly doubted that anyone told her that, those specific answers raised a pretty strong inference that people were telling her what to say. [ 10 ] Does the acquittal resolve the issue of sexual touching? No, it does not. The acquittal in criminal court was well justified, where the burden of proof is proof beyond a reasonable doubt. In civil court, the burden of proof is lower, on a balance of probabilities, meaning more probable or likely than not. As well, the criminal court did not have the benefit of the whole of the evidence, as does this court.

The criminal court was only able to hear evidence of the specific offence before it, the sexual touching of N, but nothing relating to the sexual touching of D. The evidence regarding sexual touching of both children is rather inextricably linked. Counsel have confirmed that no evidence was led regarding D. which means in my view that the criminal court was operating in something of a vacuum.

This court has heard more than twenty days of evidence, with key witnesses being called and cross examined several times, and the issue of sexual touching, and coaching of the children, exhaustively examined. [ 11 ] I find, as fact, that no one has coached or influenced either of the children. The disclosures were spontaneous, initiated by the children themselves, and came as a surprise to both the foster mother and the social worker.

Both were slow to accept the truth of the allegations, the foster mother initially thinking it was “gross boy speak” and the social worker thinking it might be a negative reaction to the transition planning. Both were appropriate in their responses, and in fact went overboard in their efforts not to coach or influence the

children by not even telling them why they were being taken to the police station for the first two interviews. The psychologist Dr. Eirikson did specific checks for coaching, and had no impression that either of the children had been coached or reminded to tell him anything. Foster mother, social worker, and Ms.

Lanzarotta were all asked about specifically telling N. to say that daddy C.M. had put his mouth on her vagina; all three stated they had never done so, but simply told her to tell the truth and tell the police what happened to her; tell the police her story. [ 12 ] I also find there is a preponderance of evidence that C.M. has sexually touched both children. The disclosures have been spontaneous, and largely consistent over more than three years; D., to the foster mother, the police, and Dr. Eirikson; N., to the foster mother, Dr. Eirikson, the social worker, Ms. Lanzarotta, and the third police officer.

The disclosures themselves, and the circumstances surrounding the making of the disclosures, have the ring of truth: for example, the Barbie doll incident; keeping a secret; having supervised visits so I’ll be safe; if no one watching, I’d feel icky. C.M.’s initial response to the allegations was that maybe he did not know what appropriate touching was, yet he has failed to comply with the social worker’s request that he get counselling for healthy touching, in more than three years. As well, the children have clearly been affected by the touching.

All access was cancelled from March 2010 until November 2011, while the criminal charges were pending. In the spring of 2011, both children told the social worker they did not want visits, with D. saying he did not want to visit until he was a man, and N. saying not now, maybe later. Later on, N. was more ambivalent, so she began supervised visits of one hour each week in November 2011. While she enjoys the visits, she has made it very clear (to the foster mother, the social worker, Dr. Eirikson, and the police) that she would not feel safe without supervision.

At some point, it appears that D. began to feel left out, particularly in not getting presents, and he attended one or two supervised visits in February 2013. Further visits are open to him if he wants to go. [ 13 ] Given this finding of untreated sexual touching, and the children’s refusal to have any unsupervised contact with their father, I am satisfied that C.M. is not able to resume custody at this time.

Indeed, the father acknowledges that he does not have appropriate housing for the children and so cannot at this point meet their age appropriate needs. [ 14 ] Aside from the issues of sexual touching and the children’s views, I am also satisfied that there is no significant likelihood that the circumstances that led to removal will improve within a reasonable time, or that C.M. will be able to meet the children’s needs. The children were originally apprehended due to hazardous home conditions and serious neglect. Some positives must be noted.

There are reports of the father being loving and caring towards N., and no inappropriate behaviour during the supervised access visits. He was clearly thinking of the children when he agreed to a slow transition plan. He has attended the numerous court dates (albeit he slept during several), and he finally, in November 2011 and April 2012, completed two parenting programs (requested of him since 2005). Balanced against that is the evidence from his own support system.

According to his sister, before the removal, he was good at playing but not good at providing care; both parents stayed up to all hours of the night and slept in. In 2007 and 2008, when the sister was supervising the visits, and again in 2009, she spoke to him (without success) about not being sufficiently involved with the children, and not taking programs. He spent his time watching television and having naps, and left all of the interaction and caregiving to K.G.M.

In 2011, there is evidence that K.G.M. told the social worker that she was concerned about his parenting abilities; he was very engaged in video games, leaving the majority of the parenting and caregiving to her (by that time they had separated, and he was having supervised visits with their infant daughter). [ 15 ] After assessing the whole of the evidence, I agree with the conclusions of Dr. Eirikson (and those of counsellor David Bains) (exhibit 2, page 30 and following) that C.M. does not have the capability to parent the children, in that he has difficulty caring for himself let alone children.

His interest and motivation in taking programs and counselling has indeed been absent to lacking. His childcare and parenting plans are in fact unrealistic. According to the evidence, during the recent year of supervised access visits, he cancelled on average half of the visits each month. Future access should reflect the children’s wishes, having regard to their need for consistency and emotional well being. Given the extraordinary length of time these children have been in care, the father has had almost seven years in which to improve his circumstances, but has failed to do so.

There is no reasonable prospect that he will do so in the future. [ 16 ] The long term plan of care for the two children is for them to remain with their foster mother, the only home they have known for almost their entire life (almost seven years!). There is overwhelming evidence (Dr. Eirikson, the social worker, C.M. and his family) as to the attachment of both children to the foster mother. I will provide just one example: during her sessions with Ms. Lanzarotta, N. talked about having worries and bad dreams- somebody or a stranger taking her away from the foster mother.

From the evidence, the foster mother is best able to maintain the children’s First Nations heritage; she takes them once a month to Cheam gatherings, and has taken them to their traditional territory for cultural events (while C.M. has departed from traditional or aboriginal ways). C.M. acknowledges that, under the foster mother’s care, the children have grown up to be beautiful children. To quote the father, the foster mother has done an amazing job with the children. I certainly agree. [ 17 ] Dr.

Eirikson found that the children are well established where they are, they view the foster mother as their mother figure, and her home is the place they consider home and where they want to be. In his opinion, moving them at this point would be a disturbing adjustment for them. A similar opinion was provided by Dr. Gingell, who prepared a developmental psychological assessment of D (exhibit 20, tab 8 page 21). He diagnosed D. as having a learning disorder, and requiring further investigation as to ADHD, attachment disorder, and mood disorder.

His comments in court about early attachment problems applied significantly to D.’s earliest months, making his opinion all the more noteworthy: it will be detrimental to D. to keep detaching and attaching to a mother figure. He needs stability and continuity in his life, and ongoing psychotherapy, with a coordinated and consistent plan involving both home and school. In my view, the foster parent is more than capable of ensuring D. receives this, C.M. is not. [ 18 ] Would an FLA order for guardianship to the paternal grandmother be in the children’s best interests?

This requires consideration of a number of factors listed in section 37(2). I already have dealt with the children’s views, the history of their care, their health and emotional well being, as well as their need for stability. When it comes to the grandmother’s application, the one factor not previously discussed is the nature and strength of relationships. The grandmother is clearly well intentioned, and believes that family is important. However, she and her husband have had virtually no contact or connection with the children, even though they live in the same area.

Since October 2006, when the children have been in care, she was given the opportunity to arrange visits simply by phoning the foster mother, but failed to do so. She has never made any attempt to arrange visits through the social worker. In the past year and a half of her son’s supervised visits, she attended just two visits with N. As C.W. admitted during trial, she has no actual bonding with the

children. The same was acknowledged by her husband; he does not even know D., having only seen him once shortly after removal, and has only seen N. twice. Clearly it would not be in the children’s best interests to be removed from the one stable home and mother figure they have known all their lives, in order to be placed with virtual strangers. That being said, the foster mother clearly believes in the importance of family as well. There may well be future opportunity for the father’s extended family to reach out to the foster mother, and establish a relationship with the children. ORDER [ 19 ] I find N.E.M. and D.J.M. to be in need of protection, pursuant to

section 40 of the CFCSA. [ 20 ] I order that they be placed in the continuing custody of the Director, pursuant to sections 49(4) and (5). [ 21 ] The father C.M. shall have access at the discretion of the Director. [ 22 ] The grandmother C.W.’s application for guardianship pursuant to the Family Law Act, S.B.C., 2011, c. 25 is dismissed. ____________________ C.J. Rounthwaite Provincial Court Judge